At the Bar September 2012

At The Bar September 2012

NZBA to Host 2014 World Bar Conference Justice Minister Judith Collins New Solicitor-General Michael Heron NZBA’s Annual Conference Held in Melbourne - Report NZBA President Speaks at London World Bar Conference Auckland Crown Solicitor Stresses Independence

INSIDE THIS ISSUE

New Zealand to Host World Bar Conference in 2014

By Catriona MacLennan

Pg 2 - New Zealand to Host World Bar Conference in 2014 Pg 4 - Justice Minister Praises NZBA’s Contribution Pg 6 - New Solicitor-General Pg 7 - Independence Most Important Quality Says Crown Solicitor Pg 8 - Leading A Successful Team Theme of NZBA’s 2012 Annual Conference Pg 10 - The Science of Economics v The Economics of Science Pg 12 - Roles of Drafters and Advocates Examined Pg 14 - NZBA President Miriam Dean CNZM QC Speaks to World Bar Conference Pg 15 - The World Bar Conference – Advocacy: Past, Present and Future – London, 29 June - 1 July 2012 Pg 16 - The World Bar Conference Photos Pg 16 - Dubai International Financial Centre’s Commercial Court- Footnote Pg 17 - Upcoming Events and Recent NZBA News Pg 17 - New Members of the New Zealand Bar Association Pg 17 - “Go Girls” Tweet Marks Female Judicial Appointments Pg 18 - Bench and Bar Dinner Pg 19 - Gravitas: What It is And Why It Matters for Barristers

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 Tel: 9 834 2224 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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Colin Carruthers QC The New Zealand Bar Association has pulled off a major coup in winning the right to host the World Bar Conference 2014 in Auckland.

The theme of the four day event will be The Role of Barristers in Constitutional Development.

Queen’s Counsel and former New Zealand Bar Association president, Colin Carruthers, told At The Bar that the idea of bringing the conference to New Zealand had occurred to him when he attended the World Bar conference held in Sydney in 2010. The biennial meeting rotates between the northern and southern hemispheres, with the 2012 event having been held in London. Mr Carruthers in 2010 discreetly floated the idea of New Zealand hosting the 2014 event and found that there was overwhelming support for the notion.

The NZBA Council approved the idea, on the basis that Mr Carruthers would chair a committee

to organise the conference. A three-person committee consisting of Mr Carruthers, Kate Davenport and Tim Castle was established and a conference organiser was brought into the equation. A glossy, eight page, illustrated brochure was prepared as an Expression of Interest and Mr Carruthers presented the concept to a small group.

Following discussion about suitable dates, it was decided that the opening function for the conference would be held on the evening of Monday, 21 April 2014, with the business sessions taking place between 22 and 24 April.

Mr Carruthers said that this meant that the gathering would wind up prior to Anzac Day, meaning that international visitors would have the opportunity to celebrate the occasion in New Zealand.

The Role of Barristers in Constitutional Development: A practical review of ways in which barristers protect and promote constitutional safeguards has been selected as the conference theme. Mr Carruthers said that he was keen to ensure that papers provided a practical examination of constitutional issues, rather than being dry, theoretical debate.

“The theme does have relevance among most of the constituency we draw on.”

He said that New Zealand’s Constitutional Advisory Panel was

due to report by the end of September 2013. It had been set up by the Government in August 2011 to conduct wideranging consultation about this country’s constitutional arrangements, including the size of Parliament, the length of the electoral term, Maori representation, the role of the Treaty of Waitangi and whether or not New Zealand needed a written constitution. Those topics and the outcome of the review could be up for debate at the conference, as could issues such as the role of damages for breaches of the New Zealand Bill of Rights Act 1990.

In Australia, the role of Aborigines and Torres Strait Islanders was being debated, while contemporary constitutional issues in South Africa included the constitutional court. In England and Wales, a reorganisation of the court structure and the systems for the appointment of judges was underway and in Scotland there was ongoing debate about Scottish independence. Current issues of importance to the profession in the Republic of Ireland included regulation of lawyers and grants of legal assistance. In Zimbabwe and Pakistan, there were major constitutional questions to be examined.

powhiri, followed by a haka as the culmination of the evening event.

Delegates would have the option of a ferry trip to Waiheke Island, with lunch at a vineyard and a tour of the historic defence installation, Stony Batter. Mr Carruthers said that the conference dinner was expected to be held at the Auckland Town Hall, while the closing ceremony was pencilled in at the Auckland Art Gallery Toi o Tamaki.

A full partners’ programme would also be offered, including a visit to the Matakana Coast Wine Country, a one-day tour of Auckland and a trip to Waitomo Caves and Rotorua.

Mr Carruthers said that there was currently an initiative which funded attendance at conferences for an African practitioner or practitioners and such money would be made available for the 2014 conference. Consideration was also being given to providing assistance to enable delegates from Pacific Island nations to attend.

Mr Carruthers said that he and other members of the organising committee were very keen to hear from NZBA members with their suggestions for topics and speakers for the conference.

“We will get absolutely top drawer people.”

He said that the London conference had used a panel system to provide different perspectives on topics under discussion and he thought that was a good way of doing things. It was too early at the moment to speak publicly about possible speakers or specific topics but one issue for discussion could be how barristers could contribute to proper constitutional arrangements.

NZBA president, Miriam Dean CNZM QC, had said she wanted the conference to have a “wow” factor and Mr Carruthers said that he backed that view.

“I don’t think that will be very difficult for us to do.”

He said that Auckland and wider New Zealand’s natural beauty would be a drawcard for delegates and accompanying persons. The conference would be held in Auckland and it was expected that the main venue would be the Langham Hotel. The Auckland War Memorial Museum was the preferred venue for the opening reception as it would provide an impressive backdrop to a ceremony which would welcome visitors to New Zealand with a

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Justice Minister Praises NZBA’s Contribution The New Zealand Bar Association is particularly constructive to work with, says Minister of Justice Judith Collins. Ms Collins told At The Bar that, although she and the legal profession would not agree on all issues, the Association was able to rise above those differences and consider the greater good in its submissions.

Judith Collins

“I welcome continued liaison and partnership with the New Zealand Bar Association.”

Ms Collins said that the legal profession in New Zealand was currently the largest it had ever been, with more than 11,000 lawyers recorded. Although not all of those people were in private practice, the legal profession was nevertheless very large in comparison with New Zealand’s small size.

“My view is that we have far too many people coming into the legal profession believing that there must be a job for them.

There has been a proliferation of law students’ places in New Zealand.”

Ms Collins said that, at the time she was president of the Auckland District Law Society, New Zealand had had the second-highest number of lawyers per capita in the world, ranking behind only the United States. At that time this country had had 8000 lawyers and the figure had now grown to 11,000.

Moves to greater use of Alternative Dispute Resolution were being driven by the public and by many lawyers. Ms Collins said that, when she was in practice, she had found that commercial clients often preferred to have their disputes dealt with by way of mediation or arbitration. The court system was expensive and the adversarial system made it difficult to continue a commercial relationship in the wake of court proceedings. It was significantly easier to maintain such relationships when Alternative Dispute Resolution was used. Ms Collins said that the justice system was there for the people.

Her legal career had also given her excellent contacts with the judiciary and with lawyers, meaning that there was a high level of trust. This assisted in producing wellreasoned, sensible and practical solutions.

– Minster of Justice, Judith Collins.

“I actually think that we are overlawyered. Too many young people are sent into law school thinking that [law] is going to be a great, high-paying career.

For many it is not.”

Ms Collins said that, for some lawyers, the profession could be stressful and poorly-paid.

The minister said that, for some people, the cost of litigation had become extraordinarily high. The Government needed to keep such costs down and lawyers needed to examine the

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ways in which they operated, as it was important that justice was accessible. She said that, for most middle income range people, the courts were too expensive.

“So the way we practise needs to be considered.”

Ms Collins said that the Government was at present undertaking work on the crossgovernment Addressing the Drivers of Crime programme, as well as on the Policing Excellence and Prevention First programmes. There was also an increasing focus on rehabilitation in prisons and for offenders serving communitybased sentences. She said that the Government was keen to modernise the courts so that they operated to meet the needs both of parties and of lawyers engaged in litigation.

At present, court staff did not have access to the electronic systems that most law firms used. This meant that files ended up in the wrong courts and processes were less efficient than they could be.

“One issue I identified is that the courts themselves need to be brought very much into the twenty-first century.”

Ms Collins said that eBench would begin operating in the courts from 1 July 2013, allowing judges to manage criminal cases electronically. Judges would be able to call cases up on laptops and receive information filed electronically by the police.

“That’s the start of it. Ultimately we’ll be moving to e-filing – being able to have lawyers file at any time of the day or night and being

actually able to operate in the way everyone else operates.”

Minister for Courts, Chester Borrows, said in a press release dated 21 June 2012 that the implementation of eBench was expected to see charges processed up to 70 per cent faster and save the Ministry of Justice and the Police approximately 93,000 hours a year. The changes would eliminate the need for courts to print, sign by hand, ink stamp, photocopy, courier, fax, post, file and distribute paper. Mr Borrows also said that eBench would reduce inaccurate or incomplete records and transcription errors and would remove the need for bulky storage of large paper files.

Ms Collins said that her view had very much been that the public should engage by making submissions and having its say on how MMP should operate in the future.

She said that she would comment publicly following the commission’s final report, which was due in October.

In addition to being the Minister of Justice, Ms Collins is the Minister for ACC and for Ethnic Affairs. She is ranked fifth in the Cabinet and is the highest-ranked woman.

She was elected to Parliament in 2002, representing the Auckland seat of Clevedon. Following electorate boundary changes she was elected MP for Papakura in the 2008 and 2011 elections.

Ms Collins said that moves to increase the use of technology in the courts had begun two years ago with the implementation of audio-visual links between courtrooms and prisons, starting with links between Mt Eden Prison and the Auckland District Court. That had now been extended to other Auckland courts and prisons. The aim was to make the system more easily accessible and other practical measures were currently being investigated. The Police and the Corrections Department had already moved in that direction and it was time now for courts to follow suit.

Prior to entering Parliament, Ms Collins practised law in Auckland and was a company director. She is a former president of the Auckland District Law Society and vice-president of the New Zealand Law Society and served as the chair of the Casino Control Authority. Ms Collins is a member of the Fulbright New Zealand Alumni Association and holds a Bachelor of Laws, a Master of Laws (Honours) and Master of Taxation Studies from the University of Auckland.

In relation to the review of the Judicature Act 1908, Ms Collins said that the Government was currently awaiting a report from the Law Commission following its discussion document Review of the Judicature Act 1908 – towards a Consolidated Courts Act. The paper was released on 23 February 2012 and submissions closed on 27 April 2012. The document canvassed preliminary proposals for reform, including unifying the 63 separately-constituted District Courts, a panel system for the High Court modelled on those in Victoria and New South Wales, and a more transparent appointment process for judges.

Ms Collins said that she had now been an MP for 10 years. She had always found being a politician interesting.

It was never dull and it was very rewarding being an electorate MP. Holding the justice portfolio allowed her to steer through important changes New Zealand required. She said that her previous background in the legal profession was a huge advantage in her work as a politician as, ultimately, Parliament every day passed laws and knowing how the law worked was a significant benefit. Her legal career had also given her excellent contacts with the judiciary and with lawyers, meaning that there was a high level of trust. This assisted in producing well-reasoned, sensible and practical solutions.

Ms Collins said that the commission was examining some quite substantial changes. She said that the Government would consider the proposals made by the commission when it presented its final report.

However, the minister said that it seemed “somewhat bizarre” that New Zealand had 63 separately-constituted District Courts. Other issues being examined were whether or not the right to civil jury trials in the High Court should be abolished or limited and the future of the Commercial List.

The Electoral Commission’s Proposal Paper relating to changes to the MMP electoral system was released on 13 August. The commission reviewed the voting system following the November 2011 referendum on New Zealand’s electoral system. More than 4600 submissions were received from the public on a discussion document released earlier this year. Further submissions on the August 2012 proposals could be made up until 7 September.

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New Solicitor-General

By Catriona MacLennan

Assuming the role of Solicitor-General would be a huge privilege and an opportunity to serve New Zealand, said incoming Solicitor-General, Michael Heron. Mr Heron was due to take up a five-year appointment on 3 September 2012, following the appointment of former Solicitor-General, David Collins QC, to the High Court Bench.

Mr Heron told At The Bar that the three key roles of the Solicitor-General were the following • serving as the chief executive of

Michael Heron the Crown Law Office • acting as a trusted adviser to

government, and • exercising a supervisory role over criminal prosecutions.

The Solicitor-General holds office as an official of government and is subject only to the Attorney-General. The Solicitor-General is the Government’s chief legal adviser and advocate in the courts. In practice, the Solicitor-General provides advice directly to ministers, as well as to departments and agencies of government. The Solicitor-General will appear as senior counsel for government interests in litigation and in particular appellate matters. A key responsibility is to advise the Government on constitutional questions. In addition, the SolicitorGeneral has responsibility for the prosecution of criminal jury trials and for Crown representation in appeals against convictions and sentences.

By statute, the Solicitor-General can exercise almost all of the statutory functions conferred on the Attorney-General. As the non-political law officer, the Solicitor-General has traditionally assumed responsibility for the exercise of those functions that should be undertaken independently of the political process.

A review of the role and functions of the Solicitor-General and of the Crown Law Office was carried out earlier this year by New Zealand Bar Association president, Miriam Dean CNZM QC, and Simpson Grierson special counsel, David Cochrane. Their report, dated 24 February 2012, identified seven key issues and suggested changes, including greater openness to briefing external lawyers and implementing a statutory fixed term appointment for the Solicitor-General.

Mr Heron said that the staged implementation of the Criminal Procedure Act 2011 would make the role of oversight of criminal jury prosecutions particularly important and he was keen to be involved in it. There had been a variation in how much involvement different Solicitors-General had had in such matters but he was keen to be very active in this field.

“I certainly think our prosecution service is good but it has got some issues with funding.”

Mr Heron said that he believed that, by and large, the Crown Law Office did an extremely good job. Part of his role would be to ensure that the culture of the office was right and that key staff were kept happy, motivated and performing well.

He said that it would be important to ensure that Crown Law was performing the role of trusted adviser to the Government well. It would also be important to distinguish what work should be done by the Crown Law Office and what work should be done by Crown Solicitors.

He said that he was very supportive of the role of the Crown Solicitor and of strengthening the network but the current financial climate meant that all services were under pressure and this was an early project that he would embark on.

Mr Heron said that he believed that more briefing out of work was a good idea.

“We’ve got some great legal brains around the country and I’m keen to bring them in when I can.”

Mr Heron grew up in Wellington and said that he was familiar with the political preoccupations of the city.

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“I’m a Wellingtonian at heart. I love the political aspect. I’m not particularly good at it and I don’t aspire to be a politician. I admire people like politicians who are prepared to [put themselves] at the mercy of the public. I guess I grew up with it and grew up in the law.”

Mr Heron said that it had been suggested to him that he should apply for the position of Solicitor-General. He had reflected on the role before deciding to put his name forward. He said that the leadership and organisational aspects of the position would suit him and he welcomed the opportunity to develop further in that area. He was also very keen on the service aspect of the role. “[There is a] feeling that you are really being of service to something worthwhile – the rule of law, which I’m keen on, and serving a government which is elected by the people.”

Mr Heron said the fact that the position was seen as a pre-eminent legal job was another attraction.

“For me it’s just a huge privilege. I’m really excited about it. I’m working on it already and talking to people.”

Mr Heron was a solicitor at Allen and Overy in London and Tokyo between 1991 and 1994. Between 1995 and 2007 he was a lawyer and partner at the office of the Auckland Crown Solicitor, Meredith Connell where he gained extensive advocacy experience, including as a crown prosecutor.

He has appeared in court at every level, from the District and High Courts to the Court of Appeal and the Supreme Court. Mr Heron was a partner at Russell McVeagh between 2007 and June 2012.

He was the chair of Drug Free Sport New Zealand and has been a member of the council of the Auckland Branch of the New Zealand Law Society.

New Zealand Law Society president, Jonathan Temm, said that Mr Heron was well-known and highly regarded in the New Zealand legal profession.

“Mr Heron has extensive experience in many areas of legal practice and litigation. This includes work as a Crown prosecutor and involvement with delivering advice to government agencies.

His wide-ranging experience as both trial lawyer and legal adviser means lawyers will be confident he has the depth of knowledge and understanding needed as Solicitor-General.”

Auckland Crown Solicitor, Simon Moore SC, said that he believed the appointment of Mr Heron as Solicitor-General was an inspired choice.

“It’s hard to imagine another modern, young lawyer with such a diversity of legal experience because he’s got that high-end international commercial experience he got in London and Tokyo, he did 10 years prosecuting at Meredith Connell and then towards the end of that stage he was doing quasi-prosecution work in the form of disciplinary work, both sporting and medical disciplinary, as well as the reasonable amount of civil litigation that he did [at Meredith Connell].”

Mr Moore said that Mr Heron’s two other important qualities were his gregariousness and social facility, and his focus and principles.

“He’s fun and everyone enjoys his company. He has a very engaging, self-deprecating quality – an ability to laugh at himself.”

Mr Moore said that Mr Heron would need his focus and principles in his new role as there would be times that he would be required to advise ministers that what they wanted to do was unlawful or ill-advised.

“I think he’ll be absolutely terrific in that job. He’ll be great and he deserves it.”

Mr Heron and his family had booked to attend the London Olympics prior to his appointment and he said that being at the event had been a great experience.

“We ended up by pure good fortune at the rowing when we won two gold medals. The whole family got dressed up and went. It was magic. It was one of the greatest things I’ve ever seen. Mahe [Drysdale] winning that race was incredible. There were tears and everyone was yelling.”

Mr Heron and his family also saw Jamaican sprinter Usain Bolt running in the heats prior to his gold medal wins and watched Great Britain’s Jessica Ennis competing.

Independence Most Important Quality Says Crown Solicitor

By Catriona MacLennan

The most important element of the exercise of the power of a Crown Solicitor was the need to adhere rigidly to the principle of independence, said Auckland Crown Solicitor Simon Moore SC of Meredith Connell. He said that independence was crucial because the Crown Solicitor was the bulwark between the individual and the state.

“Independence is absolutely core to what we do and how we do it. The Crown is not a client. When prosecuting indictable offences, no prosecutor is representing a client. The obligations on a prosecutor are well settled and promote the notion Simon Moore SC of a prosecutor being a “Minister of Justice.” This means that we must be scrupulously fair in the way in which we discharge our responsibilities. It doesn’t mean that we can’t be robust or firm or even appropriately theatrical but we must be fair and that is something which distinguishes the essence of our role from the role of defence counsel.”

Mr Moore said that the Crown Solicitor system had been in place in New Zealand since the late nineteenth century. It had been modelled on a similar system operating in England and Wales at that time which involved local practitioners holding warrants to prosecute for the Crown in the districts in which they practised.

A Meredith Connell partner had held the warrant as Auckland Crown Solicitor since 1922, with Sir Vincent Meredith QC being the first.

However, although the firm had held the Auckland warrant for 90 years, there had been impressive continuity throughout that period as only a handful of partners had held the warrant. GSR (Bob) Meredith followed Sir Vincent as the second holder of the warrant in 1953 and he was succeeded by Sir Graham Speight in 1961 and David Morris in 1968. Mr Moore assumed the role in 1994 when Mr Morris was appointed to the High Court Bench.

Mr Moore said that it was an exceptional honour and privilege to hold the warrant, which was held at Her Majesty’s pleasure in the same way that a patent as a silk was held.

He said that in his experience the essential independence of the office appeared to be well understood by successive governments, which had never attempted to exert improper influence on the exercise of the warrant holder’s functions. He said that people sometimes queried whether or not Crown prosecutors were too close to the police, with the result that insufficient objectivity was invested in the Crown’s decision making. He did not accept that view.

“There is no doubt that Crown prosecutors must work closely with the police because the police are the file holders and case managers; they are the ones who investigated the case and interviewed the witnesses. But there are also times when we must robustly direct the police in terms of further inquiries or the appropriateness of charges. That is our role. If I am at all concerned about the propriety of something the police have done, then it is my duty to examine it and, where necessary, correct it. It is not at all infrequent to pull cases when there has been a committal but I don’t believe the evidence or the circumstances justify continuing a prosecution.

This is more frequent than in the past, largely because of the new paper committal process and the new, more focused prosecution guidelines issued by the Solicitor-General a few years ago.”

Mr Moore said that Meredith Connell was now New Zealand’s largest litigation practice, offering expertise in corporate law, commercial property, regulatory and commercial law as well as criminal. The firm had between 170 and 180 full-time and part-time prosecutors, with the firm’s total staff and partner complement approaching 230 people. He said that the firm undertook a broad range of prosecution work for government departments, municipalities and government or council-owned utilities.

“But the principle is again that of independence in these cases, even though those agencies are more akin to clients in the conventional sense.

Independence as a prosecutor and the requirement to comply with the

Solicitor-General’s prosecution guidelines still apply.”

Mr Moore said that the principle of independence ran deeply through Meredith Connell. The firm held seminars to promote the principle of prosecutorial independence and invited judges and senior practitioners to be guest speakers.

He said that, when he first started at Meredith Connell, it had been his ambition to stay only a few years before moving to the defence Bar. As a law student, his ambition had been to be a crusader defending individuals against the might of the state. However, right from the outset, he had found the work at Meredith Connell fascinating.

“I just found it so incredibly rewarding not only in terms of intellectual stimulation but also dealing with those who, through no fault of their own, found themselves embroiled in the criminal justice system. I found that we could make a difference. So I’ve been here since 1980 and I haven’t been bored for a nanosecond. I still enjoy it as much now as when I started here as a law clerk. It’s great work surrounded by so many talented people of all ages.”

He said that he believed that law graduates nowadays were more mature and sophisticated and had a clearer idea of their career paths than graduates in earlier days.

“They seem to be really focused. I look around this firm at the young people and I really genuinely feel that we are in wonderful hands for the future in terms of the quality and insight and application of young lawyers. The biggest challenge is keeping those who are talented within the legal profession.”

Mr Moore said that he believed that he and others in senior positions had a responsibility to maintain and develop the profession.

“There is nothing that saddens me more than seeing talented, enthusiastic and idealistic young lawyers being ground down in their work and losing their spark and losing their enthusiasm and becoming tired and disillusioned and abandoning our profession. I think the greatest challenge for the legal profession in 2012 is maintaining the level of focus and engagement and enthusiasm that the law should provide so these talented people are the leaders of our profession in future. Every one of us can think of very talented young lawyers who would make a real difference to our profession who have left it because it hasn’t delivered what it should have. The law is the most wonderful profession. Each day is different and should be approached with the same level of enthusiasm and spring in your step as your first. ” Mr Moore said that there had been considerable debate about the right to silence as a result of the outcomes of recent trials. He said that it would continue to be an issue of interest and everyone in the profession would welcome a sensible, reflective and principled discussion about it – unlike the recent kneejerk calls for its abolition in the wakes of cases such as Kahui.

He said that he believed that there was a need for debate in relation to two matters. The first related to the media, which at times irresponsibly demonised those engaged in criminal proceedings. This affected not only accused persons but also witnesses and even counsel, who were central to the sensible resolution of criminal cases. There were also cases in which participants in the process were lauded and feted by the media.

“Either way, I think it is wrong and fundamentally unfair that our media should be able to distort public opinion in this way. We need to have a serious conversation, probably facilitated by the Law Commission, about whether access to judge-alone trials should be extended to offences that carry penalties of more than 14 years where the level of pre-trial publicity makes the fairness of trial by jury elusive.”

Mr Moore said that it was his view that reforms were also required in relation to the reception by juries of conflicting expert testimony. He said that criminal lawyers had much to learn from their civil colleagues and instanced the “hot tubbing” of expert witnesses. It had been an outstanding success during the inquest into the deaths of the Kahui twins in terms of identifying expert consensus and focusing on the primary issues surrounding the mechanisms leading to the deaths.

The process had promoted a consensus of opinion in a way that the adversarial approach in a criminal trial did not generally allow.

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NEW ZEALAND BAR ASSOCIATION ANNUAL CONFERENCE 24-26 AUGUST 2012, MELBOURNE

Leading A Successful Team Theme of NZBA’s 2012 Annual Conference The New Zealand Bar Association’s extremely successful annual conference was held in Melbourne between 24 and 26 August Miriam Dean CNZM QC 2012, with delegates hearing from a range of speakers on the topic of Leading a Successful Team.

The conference began with a cocktail function on Friday evening to welcome attendees to Melbourne. NZBA president, Miriam Dean CNZM QC, and Victorian Bar Council chair, Melanie Sloss SC, spoke to delegates attending the function in the Supreme Court library. Ms Dean then formally welcomed delegates to the first business session of the conference on Saturday morning, before handing over to Malcolm Wallace, who chaired the first session titled The judicial perspective.

Retired Federal Court of Australia judge, Raymond Finkelstein QC, spoke about what a judge expected from a team and provided tips for success. His address was followed by a paper by Justice John Fogarty, who examined the role of experts and provided a judicial perspective on challenging experts both prior to and at trial.

Supreme Court of Victoria Judge, Justice John Forrest, examined the issue of concurrent evidence. He outlined the key aspects of the proposed Victorian legislation and discussed the basic principles relating to concurrent evidence.

Justice Forrest said that the perceived advantages of concurrent evidence were greater efficiency and, particularly, substantial reductions in court time and

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costs. Conferences between experts and joint reports prior to trial inevitably limited the contested issues at trial and might lead to early resolution of the case.

His Honour said that the ability for experts to comment on each other’s evidence allowed for greater clarity and the clear identification of any disagreements.

“Judicial decision-making is facilitated because evidence on one topic is given by all experts at the same time and it is easier for courts to compare their evidence and to evaluate its weight or persuasiveness.”

However, Justice Forrest said that there were also perceived disadvantages of concurrent evidence. These included the necessity for judicial involvement early in the process, limits on counsel’s ability to conduct examination and cross-examination of witnesses and the possible undermining of the veracity of the evidence given by the imperative of reaching a shared position. His Honour said that the use of concurrent evidence involved a three-step process. First, there was early identification of the critical questions to be addressed and answered by the experts. Secondly, there was a conference of the experts and the preparation of a joint report. Thirdly, there was the giving of concurrent oral evidence by the experts after all lay evidence in the case had been adduced.

Justice Forrest said that the use of expert evidence at trial involved the witness being sworn in and then adopting his or her expert report. Witnesses would give evidence on a topic by topic basis.

The judge would lead discussion on the topic, asking questions of each of the witnesses on the particular topic. A roving microphone could be used by witnesses.

Counsel would then, on a particular

topic, have the opportunity to question each of the witnesses called.

The order of questioning would be determined by the judge, depending on the topic and the diversity of opinion. Re-examination would not generally be permitted. At the conclusion of the particular topic, the next topic would be addressed in the same fashion.

New Zealand Environment Court judge, Craig Thompson, used the Environment Court as a case study to offer a judicial perspective on expert evidence.

Judge Thompson said that, in cases before the Environment Court, there was often little dispute about primary facts. Generally, the key issues involved the interpretation of the facts and the application of the principles and practice of a discipline to them.

This meant that the focus of the hearing was almost always predictive – “If we do X, what will be the impact on the environment ?” – rather than involving a detailed analysis of past events, as was the case in criminal and conventional civil proceedings.

However, Judge Thompson said that, as always, it was important that the expert witness was able to resist pressure to be less than independent and objective in forming opinions and giving evidence.

“Also, the public interest features highly in many disputes and decisions – in the sense that the issues may go well beyond the implications for the parties immediately before the court. There are times when we need to look outside those immediate interests and to that extent there is an inquisitorial role provided for in the

NEW ZEALAND BAR ASSOCIATION ANNUAL CONFERENCE 24-26 AUGUST 2012, MELBOURNE

legislation. Sometimes the questions the court feels obliged to raise with expert witnesses may venture beyond the limits the parties feel comfortable with. So, relatively few witnesses we hear are witnesses of fact in the traditional sense – most are experts covering a wide range of expertise – agricultural sciences, acoustics, architecture, coastal sciences, ecology, engineering, heritage, landscape architecture, planning are some of those I have seen in the last few appeals.”

Judge Thompson said that objectively-given expert evidence and the efficient conduct of hearings were the desired outcomes behind the Environment Court’s current practices, both in setting out a Code of Conduct and in requiring expert witnesses to confer prior to the hearing. He said that conferences of expert witnesses were covered in detail in paragraphs 5.4.1 to 5.7.1 of the Practice Note 2011.

He said that not all cases had the same degree of complexity and conference management requirements but, even in quite simple cases, the general expectation was that there would be conferencing for expert witnesses. The initiative for this could come either from the parties or from the judge managing the file.

“Typically, the court will take the initiative in more complex cases and we have adopted a standard Notice of Expert Witness Caucasing that sets out the basic requirements and aspects of the process.”

“For example, geotechnical conditions may determine the extent of earthworks required to enable development and, in turn, impact on options for the management of effects on the natural environment and landscape values. A conferencing programme needs to be prepared from the outset with interrelationships of this type in mind.”

In relation to who should participate in conferences, Judge Thompson said that the starting point was that only experts with qualifications and/or experience recognised by the court and giving evidence on a common topic should attend.

“However, with the express approval of the case managing judge, there can be exemptions. Examples are where the representative of a transport mode (cycling) was authorised to attend the commencement of a transport planning caucus to impart specialist knowledge. In the same case lay persons with considerable knowledge of an area’s recreation and open space conditions were given the opportunity to brief participating experts before withdrawing.”

“Sorry, but there is nothing [counsel] can add, and they are likely only to bring a partisan air to proceedings.

It is important to create a distance between the experts and the parties and their partisan interests.”

Judge Craig Thompson

Judge Thompson said that it was important that experts co-operated in preparing a draft agenda for the conference.

It would usually be helpful for experts to consult with briefing counsel in this regard. Once the issues had been identified and an agenda set, there should be a realistic assessment of the time required for the conference.

His Honour said that there was no one answer as to whether it was better to have the witnesses confer before or after the writing of full briefs. However, care was required in determining the sequence in which different disciplines should conference.

His Honour said that counsel did not attend conferences.

“Sorry, but there is nothing they can add, and they are likely only to bring a partisan air to proceedings.

It is important to create a distance between the experts and the parties and their partisan interests. The experts should be free to engage in a structured discussion between peers to resolve, or at least narrow, technical issues.”

Judge Thompson said that an independent facilitator could prevent dominant personalities from taking charge and less dominant personalities from surrendering positions that were validly arguable. Where rostering permitted, Environment Commissioners were being used to facilitate conferences.

His Honour said that a joint statement should be written by the participants and signed at the conclusion of the conference. If that could not be achieved, care was required with finalising documents by email exchanges. If substantive business remained, it would almost always be preferable to reconvene the conference.

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NEW ZEALAND BAR ASSOCIATION ANNUAL CONFERENCE 24-26 AUGUST 2012, MELBOURNE

The Science of Economics v The Economics of Science Session Two of the conference was titled The Science of Economics v The Economics of Science.

Forensic scientist and consultant, Dr Anna Sandiford, provided the delegates with a Dr Anna Sandiford forensic criminal expert’s perspective. She said that New Zealand courts had suffered both recent and historic bad experiences with expert witnesses.

This country was not alone in that regard and there was worldwide recognition of the need for improvements.

Dr Sandiford said that New Zealand could use overseas models to improve how it dealt with expert evidence. She stressed that expert evidence was not static and said that it took an expert to know an expert. Selecting the right expert could be hugely influential in respect of the case. Compliance with the High Court Code of Conduct for Expert Witnesses needed to be enforced.

Barrister Paul David spoke about damages, providing counsel’s perspective on issues ranging from legal principles to evidence and numbers. He examined the Supreme Court decision in Marlborough District Council v Altimarloch Joint Venture Ltd [2012] NZSC 11, discussing how the different members of the court had approached the calculation of contractual damages. These could be calculated according to either difference in value or the cost of substitute performance.

The session finished with an address by accountant Barry Jordan of Deloitte Forensic.

He set out five key principles for accounting experts – • never lose sight of your obligation to be impartial and to assist the court. He said that it was vital to be open to different perspectives, to concede any errors or changes that were warranted and to be patient and thoughtful • have an ability to communicate clearly and concisely. Mr Jordan said that it might not always be possible to make the complex simple but the expert witness must at least

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be able to make it comprehensible • consider whether or not the evidence existed to support a theory. Mr Jordan said that, simply because a theory was good, it did not automatically follow that it would work when the expert was in court. In order to obtain the best evidence, the expert needed to be adaptable and pragmatic.

Physical damage and records of loss were a reality but could be overcome with the use of lateral thinking. Mr Jordan said that, having considered the availability of evidence, he evaluated potential approaches against five foundation questions. These included how complex the approach was to explain, what the other expert would say and what legal approach was more appropriate • “flip it” – take a moment to look at loss from a different approach. After providing the expert with the specific facts of the case, Mr Jordan said that the accountant could be asked how many ways there were to measure damages in the particular case.

Legal principles would be pivotal and would require close examination in due course, but nothing would be lost by having an experienced accountant look at the loss from a commercial perspective early on.

The accountant would look at damages on the basis of performance, compensation, loss of capital value, loss of income and the financial advantage gained by the other side • don’t overlook the obvious. Mr Jordan said that a fresh set of eyes was always helpful.

The client’s perspective should always be borne in mind. An experienced accounting expert should be able to provide a commercial or business context to the loss.

He said that the obvious should be looked at first, including the quality of evidence, methodology, double counting and the perspective of the other expert.

The third conference session offered a regulatory perspective on leading a successful team. Commerce Commission chair, Dr Mark Berry, delivered a paper titled A Regulator’s Perspective on Economists as Experts. He said that the interface between law and economics involved challenges as, to quote economist Joseph Stigler, economists and lawyers “live in different worlds and speak different languages.”

Dr Berry said that economics sought to explain rational behaviour and assumed uniformity of behaviour, while law sought to

regulate permissible standards of human behaviour. He said that the “law and economics” movement had begun around 40 to 50 years ago in relation to antitrust regulation and it was widely accepted that antitrust was the field in which the utility of economics was mostly widely recognised.

He said that five of the seven members of the Commerce Commission were economists and there were 10 staff in the two economics divisions, with a total of 21 staff at the commission holding economic qualifications. Dr Berry said that economic submissions were made to the commission in two main settings – • submissions relating to clearance/ authorisation applications and restrictive trade practices investigations, and • authorisations and regulatory “conferences.”

He said that conference proceedings now followed the “hot tub” format.

Draft decisions and post-conference submissions enabled expert crosssubmissions to be made. Dr Berry noted that the Commerce Act 1991 enabled the commission to review matters with as little formality and technicality as the act permitted.

Accordingly, there was flexibility as to how expert economic evidence was handled, both in the investigation and in the conference settings. Experts at conferences were required to sign up to the High Court Code of Conduct.

Dr Berry said that the economic experts who most impressed the commission had credibility based on the following attributes – • qualifications for the subject matter • a thorough grasp of the facts, including perceptive, forward-looking insights • the ability to tie all the pieces of evidence together to tell a complete, coherent story explaining why a practice had been adopted, based on a proper rationale and motivation • the ability to recognise the strengths and weaknesses in the case – it would be rare that there would not be evidence which might be open to proor anti-competitive assessment

NEW ZEALAND BAR ASSOCIATION ANNUAL CONFERENCE 24-26 AUGUST 2012, MELBOURNE

• the ability to explain concepts with a minimum of blackboard economics and abstract theories • independence and the extent of advocacy, including team dynamics and issues of long-term client relationships.

Dr Berry said that the commission’s selection of its experts in litigation before the High Court was based largely on these criteria.

“Most experts are repeat players, with a well-known track record.”

He said that, for the most part, economic experts were regarded as a valuable part of the judicial decision-making process. There was also an increasing judicial awareness of the subject matter and of related economics. However, there had been the occasional lack of harmony.

An example of that was Carter Holt Harvey (2000) 9 TCLR 535,in which the court had stated that it had found the evidence of both economists “of restricted assistance in reaching conclusions on the principal matter in issue. This was because neither was disinterested in the evidence they gave. Neither seemed able to contemplate the possibility of accepting conclusions other than their own on particular facets of the evidence. Each was partisan in his advocacy for the point of view of the party for which he appeared.”

Dr Berry queried whether or not the “problem” relating to experts had been overstated in the case. He said that the subject matter had involved predatory pricing and divergent views could be strongly held.

“Is it “wrong” that views are strongly held and expressed as such – or can this be helpful ?”

Dr Berry noted that, in Carter Holt Harvey, the court had suggested that much greater consideration should be given by parties and the court to the option of appointing a single expert pursuant to Rule 324. He compared that with Rule 706 of the United States’ Federal Rules of Evidence, which Judge Posner had noted permitted the appointment of an expert court witness but which was little used, in part because judges lacked confidence in their ability to choose a neutral expert.

The issue, said Dr Berry, was of relevance to the lay member aspect of the Commerce Act landscape. Lay members were appointed on the basis of their knowledge of industry, commerce and economics.

Early cases had involved two lay members and section 78 of the Commerce Act anticipated the use of one or more lay members in various settings.

“The standard approach is now to use a single economist lay members in trade practices/ merger cases – is this the best model?”

Australian economist Philip Williams of Frontier Economics Pty Ltd provided a personal perspective on the relationship between the case team and the economics expert. He said that, although the expert could not be a member of the litigation team, the expert and the team must develop ways of communicating effectively.

“This is necessary so that the expert is aware of the legal and factual constraints within which the expert’s testimony must be contained.

It is also necessary to ensure that the team understands the constraints imposed on the theory of the case by the discipline of the expert.”

Mr Williams said that, throughout trial preparation, the expert should keep the litigation team informed of his or her opinions as these developed.

“This will enable the litigation team to adjust its theory of the case to be consistent with the opinions of the expert – or to dispose of its expert in time to find another. In either eventuality, the theory of the case presented to the court will be consistent with opinions expressed by the expert.”

Barrister Helen Cull QC said that counsel dealing with experts should begin by asking some preliminary questions. These included what the theory of the case was, what the critical evidence was that must be adduced or rebutted, whether or not there were resource constraints and whether or not experts were necessary.

She said that counsel should consider whether or not opinion evidence from a non-expert would be sufficient. For example, in R v Bain [2009] NZCA a police constable had given evidence of the accused’s distress. The court had held that factual observations and opinion were required to communicate this evidence. Ms Cull said that counsel should assess the risks of relying on non-expert observation. If the opposing side called an expert, how vulnerable would the quality of your evidence be ?

She said that courts in New Zealand, in both criminal and civil trials, had never had a problem in admitting statements by witnesses that consisted of inferences based on perceived facts. Counsel should consider whether or not it was necessary to embark on a war of experts, or whether an expert could be retained to brief counsel for cross-examination only.

Ms Cull said that experts must be robust. Counsel should consider whether there were any problems arising from previous evidence given by an expert. Experts also needed to understand their boundaries and to read and understand the Code of Conduct.

“Experts can advise the team and be part of the theory of the case, within limits.”

Counsel would need to assess the risks and make decisions as to whether to – • follow the expert’s advice • call the expert at trial • use the expert’s evidence for cross-examination purposes and trial preparation only, or • reject and replace the expert.

Ms Cull said that it was also important to determine what was appropriate for expert opinion and what should be left for the judge – for example, definitions contained in contracts or expressions which had been judicially defined. She pointed to a number of pitfalls for counsel to guard against. These included that experts must be compellable within the jurisdiction; the factual assumptions on which expert opinion was based must be sound and unassailable; and the fact that there was no property in an expert witness. Caution should be exercised in engaging a witness and all communications with an expert should be marked privileged and confidential.

Day One of the conference concluded with a panel discussion chaired by barrister Chris Gudsell QC. The panellists were all of the speakers from the first day of the conference. The panel session was followed by the NZBA’s Annual General Meeting and the conference dinner, which was served in The Residence. The afterdinner speakers were Supreme Court of Victoria Judge, Justice Elizabeth Hollingworth, and New Zealand Chief High Court Judge, Justice Helen Winkelmann.

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NEW ZEALAND BAR ASSOCIATION ANNUAL CONFERENCE 24-26 AUGUST 2012, MELBOURNE

Roles of Drafters and Advocates Examined Day Two of the conference opened with a session titled Drafter and Advocate.

Acting Chief Parliamentary Counsel, Bill Moore, spoke about Rewriting the law: opportunities Bill Moore and traps. He said that the increasing complexity of the law, political systems and the large number of players involved in the development of legislation and legislation-related policy meant that it was difficult to navigate the swamp of conflicting issues to introduce and enact legislation that was clear, coherent and accessible.

“To the extent that legislative rewrite exercises “misfire,” they represent a missed opportunity to improve the law and a waster effort on the part of all those involved in the process.”

Mr Moore said that the rewriting of major legislation had become a marathon for all involved, by comparison with what had been required a generation or two ago.

The resourcing issues involved meant that legislation rewrites were less commonly promoted by departments nowadays.

Further, endeavours by departments to have laws rewritten were unlikely to be successful unless there was a coincidence of wants and desires by both the responsible minister and the political party or parties in government.

Other drivers of complete or substantial rewrites of legislation, said Mr Moore, included reports from independent bodies such as law reform agencies, pressure from industry or sector groups, unexpected court cases and emergencies of various descriptions. He noted that there had been a Law Commission in New Zealand since 1985 but said that there had been a mixed track record of implementation of its proposed reforms, as well as of the time period to achieve legislation.

“Much has depended on whether the membership of the commission was closely in tune with the thinking of the Government of the day and their degree of direct involvement

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in the day-to-day operations of government.

It is noticeable that the former president of the Law Commission (Sir Geoffrey Palmer) was highly successful at getting Law Commission reports on the Government’s legislative agenda implemented in short order (for example, legislation implementing reports on inquiries, Maori Corporate Structures, Search and Surveillance, various reports relating to criminal procedure and the sale of alcohol.)”

However, Mr Moore said that many in the bureaucracy had questioned whether or not it was appropriate for a Law Commission or other independent advisory body to exercise such a degree of day-to-day influence in the operations of government.

“It is quite clear, looking at the above examples, that a Law Commission, or other independent agency, may have sufficient standing or connections to facilitate the introduction of legislation to Parliament designed to implement its own reports, but that does not guarantee passage.”

He said that the legislation on inquiries had been delayed, the legislation relating to Maori Corporate Structures had been discharged because of a lack of political support and the Alcohol Reform Bill was still awaiting passage. Mr Moore said that the Search and Surveillance Bill 2009 was an example of a legislative reform introduced in response to a Law Commission report but ultimately passed as the result of an unexpected court decision. The bill had proved to be highly controversial and it was the Supreme Court decision in Hamad and others v R which had led to its fast-tracking.

Mr Moore said that the recent Consumer Law Reform Bill was a good illustration of the objective of rewriting law to reflect modern needs and expectations, as well as public concerns.

“Periodic rewriting of the law is inevitable.

It is highly desirable in principle. However, to make the most of the opportunity presented to improve the layout, expression and clarity of the law requires a combination of good fortune and careful planning. Although lack of time has been identified as a challenge to the production of effective and refined drafting, this can be addressed in the policy development process, if ministers of the Crown and officials have the willingness to do so, by

allowing extra time for both the policy development and drafting stage of the legislation. Making the most of the opportunity also requires all involved in the drafting process to exercise a degree of discipline comparable to that when building a house or other building, or any engineering project involving complex processes.”

Mr Moore’s paper was followed by an address by the Chief Parliamentary Counsel for Victoria, Gemma Varley. The final session of the conference featured barrister Alan Galbraith QC, Emeritus Professor John Burrows QC and transTasman barrister David Shavin QC. Professor Burrows discussed statutory interpretation, comparing the current position with that in earlier times. He said that, in the past, there had been bad drafting but interpretation had been made simple by short judgments, not much context and literal interpretation.

By contrast, today there was simple drafting but interpretation was far more complicated.

Consideration must be given to the following four matters – • the scheme of the act, with legislation nowadays being more complex • the purpose of the act, including taking account of parliamentary supremacy and extrinsic materials such as Hansard, select committee commentaries and explanatory notes • other acts. New Zealand had a New Zealand Bill of Rights Act 1990, which must be considered, and • judicial processing.

Barrister Clive Elliott closed the conference by thanking the speakers and panellists for their contributions and praising the after-dinner judicial judicial speeches. Mr Elliott then thanked the “4Ms” for their contributions to the conference Melanie Sloss SC and the entire Victorian Bar; Malcolm Wallace and his organising committee with particular mention of Catherine Bibbey and Lisa Hansen; Melissa Perkin as Executive Director, ably assisted by Lisa Mills; and Miriam Dean CNZM QC for her massive contribution to the association overall and in particular to the conference.

NEW ZEALAND BAR ASSOCIATION ANNUAL CONFERENCE 24-26 AUGUST 2012, MELBOURNE

Chris Gudsell QC and Sandra Grant

Clive Elliott, Daisy Williams, David Shavin QC

Anthony Jackson, Rebecca Edwards, Christine Meechan and Sandra Grant

Malcolm Wallace

Bill Moore, Gemma Varley and Brendan Brown QC

Raymond Finkelstein QC

Stephen van Bohemen, Malcolm Wallace, Lisa Hansen, Hamish Hancock

Dr Anna Sandiford, Justice Fogarty, Helen Cull QC

Gillian Coumbe, Jason McHerron, Miriam Dean QC

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NZBA President Miriam Dean CNZM QC Speaks to World Bar Conference New Zealand Bar Association President, Miriam Dean CNZM QC, addressed the World Bar Conference in London on 1 July 2012, speaking during a session titled The Future of Advocacy – oral and appellate. The other speakers during the session were former Lord Justice of Appeal, Sir Stephen Sedley, and Hong Kong-based Russell Coleman SC. Ms Dean’s speech was titled The way forward in New Zealand. Ms Dean Miriam Dean CNZM QC began by providing a brief snapshot of events in New Zealand, beginning with the February 2008 conference Civil Litigation in Crisis – What Crisis ? She noted that the conference had highlighted concern that there was a crisis in the civil courts, with a pervading theme being that the courts needed to recognise that cases differed and that no one size fitted all circumstances. Ms Dean said that the Government, the judiciary and the legal profession were now working together to implement reforms, with a strong emphasis on workable proposals.

Significant developments had included a sweeping overhaul of case management, the scheduling of issues conferences early on in proceedings, electronic discovery, a High Court mediation pilot and a new scheduling approach. Ms Dean said that it had been recognised that new technology must be embraced. In addition, it was hoped that judicial specialisation would soon be implemented.

She said that the NZBA had in the past year focused on the future role of the female advocate, as women advocates still found it difficult to obtain good court experience. A seminar later in 2012 would explore how women advocates could be encouraged and assisted to undertake a greater share of advocacy work.

Ms Dean noted that lawyers and clients were continuing to turn to ADR with eagerness, with mediation now being the norm.

Future advocates – as well as ensuring agility in the courtroom – would accordingly have to sharpen their skill sets to be proficient in ADR. “Indeed, in the years ahead, the emphasis on good negotiation skills for the advocate can be expected to increase. Internationally-renowned lawyer and mediator, Robert Benjamin, uses the phrase “predictable irrationality” in describing functions of the human brain. He argues that, after 30 years, mediation is actually less popular than would have been expected, as clients fear they will be played for fools if they attend mediation and compromise to reach a settlement.

Lawyers attending mediation, says Benjamin, accordingly need to understand how to integrate the analytical and emotional aspects of human behaviour.”

Ms Dean said that all of these developments had profound implications for the training of future advocates. Law schools and professional courses needed to teach their students not just a sound knowledge of the law and of oral advocacy skills but also to be adept at high-level negotiation and mediation.

Persuasive, simple written arguments were now more important than ever.

Ms Dean said that, in an article in 2009, Associate Professor of Law at Bond University in Australia, Bobette Wolski, had examined the implications of two decades of civil justice reforms. She had noted that changes had required judges to take on the burden of case and hearing management and to adopt a more hands on role in pre-trial processes. But advocates also, she said, had been required to make major adjustments. In addition to broadening their repertoires of skills, they had needed to reorient their attitudes and approaches to contentious matters from that of hired guns or zealous advocates to that of cooperative problem solvers.

Ms Dean concluded that all this might mean that future advocates needed to be superhuman – but maybe that was what clients had always required !

Ms Dean told the conference that, although the advocate in New Zealand was not a dying breed, the role would in future differ markedly from its past scope.

“Proceeding mechanically along the track to a full trial and being the most competent advocate in a court room will no longer cut the mustard. Moreover, as in other jurisdictions, New Zealand has witnessed the growing popularity of mediation.

Not that this has translated to a reduced civil workload for the courts. Rather, the emphasis is changing, so predictions of fewer opportunities for advocates seem wide of the mark.”

Statistics contained in A Report from the New Zealand High Court on 2011 – The Year in Review indicated that the courts remained as busy as ever, said Ms Dean. A significant increase in summary judgments was of particular note. She observed that few civil cases actually went to trial but the statistics confirmed that setting down trial dates early was a key to achieving settlement.

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Colin Carruthers QC

The World Bar Conference – Advocacy: Past, Present and Future – London, 29 June - 1 July 2012

By Melissa Perkin, Executive Director, New Zealand Bar Association including the Stephen Biko inquest in 1977, introduced three speakers who had each practised in jurisdictions where the challenges to the rule of law confirmed to me how important the role of advocate is – the presenters were from Pakistan, Belfast and Zimbabwe. All three advocates had practised under the real threat of harm or death, a challenge which few advocates have to face.

The conference dinner speaker was the Rt. Hon Dominic Grieve QC, Attorney-General for England and Wales and Advocate General for Northern Ireland. The setting for the dinner was the Middle Temple Hall, constructed between 1562 and 1573 and virtually unchanged to this day, having survived the Great Fire of London and both World Wars. The first performance of Shakespeare’s Twelfth Night was recorded as having taken place there in 1602.

Melissa Perkin, Jenny Cooper & Miriam Dean QC The International Council of Advocates and Barristers (ICAB) hosts a World Bar Conference every two years. I had the opportunity to attend the 2012 conference, which was held for the first time in London, a month prior to the Olympic Games and predicted influx of over one million visitors. This is the only conference which brings all members of ICAB and guest jurisdictions together for three full days of visits, debate and discussion.

The three days, sessions and discussions focused on the provision of quality advocacy and provided an opportunity for serious debate about international issues directly concerning the legal profession around the globe.

The conference began with tours of the Supreme Court, housed in Middlesex Guildhall, which it shares with the Judicial Committee of the Privy Council. The Supreme Court was established by the Constitutional Reform Act 2005 and started work on 1 October 2009. The Court assumed the judicial functions of the House of Lords, previously exercised by the Lords of Appeal in Ordinary. These tours were followed by a reception at the House of Lords where some of the 350 participants from across the globe had the opportunity to meet.

Members of the Bench and Bar from England and Wales, Northern Ireland, Australia, Malaysia, Zimbabwe, Hong Kong, Pakistan, South Africa and our very own President, Miriam Dean CNZM QC, presented papers across a broad range of topics.

One of the most memorable sessions was Advocacy against the odds. Sir Sydney Kentridge of South Africa, a prominent South African lawyer who played a leading part in a number of the most significant political trials in apartheid-era South Africa,

Sunday morning commenced with a session on Advocacy Training: What the Young Bar needs. Our first speaker addressed the topic The Bar in a State of Crisis. As in New Zealand with the challenges to the Bar as a result of changes to legal aid funding, the same scenario is being repeated in a number of jurisdictions, including England, where changes to legal aid funding have resulted in cuts of over 350 million Pounds and funding for some 600,000 cases of legal aid in England and Wales are under threat. By way of example, a drink driving case under the fee regime would pay 75 Pounds. Such a case would typically require an average of three hours’ preparation, attendance at the hearing, travel and consultation with an expert witness. To do the work to the appropriate professional standard would require the barrister to work for under the minimum wage. In addition, changes in the ways which litigation is conducted and increased regulation of the Bar are all challenges to its existence. The need for more advocacy training was expressed as critical for the survival of the English junior Bar which is subject to the same difficulties as junior barristers in New Zealand face, with a lack of opportunity for pupillage. The need for a continued commitment to training by more senior members of the profession was vital, especially over the first seven years of practice.

A church service at the Temple Church, which serves as the church of Inner and Middle Temple, addressed by Mrs Justice Susan Crennan AC of the High Court of Australia, was a highlight. The Church was built by the Knights Templar, the order of crusading monks founded to protect pilgrims on their way to and from Jerusalem in the 12th century. More recently, the church featured as a key location in the filming of the 2005 movie The Da Vinci Code.

The final speaker was NZBA President, Miriam Dean CNZM QC, who addressed the topic of The Future of Advocacy: The way forward in New Zealand.

NZBA Past President, Colin Carruthers QC, successfully presented the New Zealand Expression of Interest to host the World Bar Conference in 2014. The Association is grateful to Colin for his significant work in achieving this goal. The Conference will be held in Auckland during the week of 21 to 24 April 2014 with the theme The role of barristers in constitutional development. A committee comprising Colin, Kate Davenport and Tim Castle is commencing work on creating the framework for this event.

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The World Bar Conference

Shelley Sage, Robyn von Keisenberg, Anne Hinton QC, Peter Hinton, Kate Davenport and Anthony Jackson

Conference dinner – Middle Temple

Dubai International Financial Centre’s Commercial Court- Footnote At The Bar in its June issued carried an article about the Dubai International Financial Centre’s Commercial Court. David Williams QC said that several practitioners had subsequently asked him for more information about the court. He said that, within the Emirate of Dubai, the long-established courts of general jurisdiction continued to deal with all criminal and family law matters. The DIFC court’s jurisdiction was confined solely to commercial cases.

Mr Williams said that the Chief Justice of the DIFC was Michael Hwang SC of Singapore. The other judges, in addition to Mr Williams, were the Deputy Chief Justice, Sir Antony Colman, a former member of the English Commercial Court; Sir John Chadwick, retired English Court of Appeal Judge; Sir David Steel, retired English Court of Appeal Judge and Justice Tan Seri Siti Norma Yaakob, formerly Chief Judge of Malaysia. In addition, there were two Emirati Judges, namely Justice Omar Juma Al Muhariri and Justice Ali Shamis Al Madhani.

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Upcoming Events and Recent NZBA News Sentencing Advocacy Competition – High Court Wellington The New Zealand Bar Association sponsored the Sentencing Advocacy Competition, which is run by the Ministry of Justice and open to law students from Victoria University of Wellington. The competition was held on 14 August 2012, with entry being limited to 16 competitors.

The winner received a prize of $700 and the runner-up a prize of $300. NZBA Wellington vice-president, Tim Castle, presented the prizes on behalf of the Association.

New Council NZBA president-elect, Stephen Mills QC, will formally take up the role of president of the Association from 1 October 2012 when the new Council term commences and the Association’s current president, Miriam Dean CNZM QC, steps down. Due to more nominations being received in the Auckland region than there were places available, an election was conducted. The successful nominees were announced at the Annual General Meeting on 25 August 2012.

Advocacy Seminar – Get Up and Speak Up – 27 September 2012 Auckland NZBA and the Auckland Women Lawyers’ Association are co-hosting a seminar in Auckland which will be of interest to women litigators at all levels but is particularly targeted at those who are ready to take the lead and are looking for opportunities to do so. Senior members of the Bench and Bar will address participants.

Appointment of NZBA Training Director Due to the desire of the Council to expand the number of training initiatives, a decision was made by the Council to appoint a part-time Training Director, who is to assist the Executive Director to expand the number of seminars the Association offers. Jacqui Thompson, who is a qualified lawyer and librarian, was appointed to the role in June.

If you have any suggestions about topics you would like the Training Sub-Committee to consider, please contact Jacqui at jacqui.thompson@nzbar.org.nz.

Meetings with the Ministry of Justice Representatives of the Association are meeting with the Ministry of Justice as part of the review of the Fixed Fees Legal Aid regime.

New Members of the New Zealand Bar Association The New Zealand Bar Association is very pleased to welcome the following new members who have joined the Association since June 2012: Mr Robin Arthur Judge David Burns Mr Michael Byrne QC Mrs Helen Coutts Mr Malcolm Dreaneen Mr Carl Dunne Mr Frank Godinet Mr Anton Heyns Ms Kerry Jacobs Mr John Land

Auckland Auckland Brisbane Christchurch Auckland Auckland Auckland Auckland Wellington Auckland

Mr James Mahuta-Coyle Ms Gemma Mayes Mr Andrew Peterson Ms Nazmeen Rasheed Ms Dorothy Thresher Mr Peter Webb Ms Helen White Miss Gayle Williams Mr Jason Wren

Wellington Auckland Auckland Auckland Hamilton Auckland Auckland Hamilton Christchurch

“Go Girls” Tweet Marks Female Judicial Appointments A jubilant “Go girls” was used as a tweet in July 2012 to mark the appointments of three women to New Zealand’s higher courts. Court of Appeal Judge, Justice Susan Glazebrook, was appointed to the Supreme Court. High Court Judge, Justice Christine French, was appointed to the Court of Appeal and Auckland lawyer, Sarah Katz, was appointed to the High Court Bench.

Attorney-General Christopher Finlayson issued three press releases on 26 July to mark the appointments.

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Bench and Bar Dinner Auckland, 19 July 2012

Dan O’Connor, Chris Gudsell QC, Miriam Dean QC and Chief Justice Dame Sian Elias

Graham Kohler, Alan Dormer and Rebecca Edwards

Justice Helen Winkelmann and David Williams QC

Philip Selth OAM, Melanie Sloss SC and Bernard Coles QC

Jeremy Sutton and Peter Davey

Sir Grant Hammond and Sir Edmund Thomas

Justice Mary Peters, Gillian Coumbe, Justin Smith and Sandra Grant

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Gravitas: What It is And Why It Matters for Barristers

by Emily Morrow Consider the following.

Several solicitors in a firm are considering referring a matter to a particular barrister. This barrister is known to be technically highly skilled and capable.

However, when the solicitors are discussing the possible referral, one remarks “He lacks gravitas. I’m not sure Emily Morrow he has what it takes”. What exactly does this mean? What does this individual need to do to address that concern?

while tailoring the way one presents appropriately.

Tailoring oneself to situations requires that one is internally consistent, but also highly attuned to the reactions of others. One needs to be firmly personally grounded, but also standing outside oneself observing the situation critically, objectively and accurately. It’s a subtle dance that requires some skill.

Gravitas is sometimes defined as “ dignity, gravity, solemnity of manner, substance, weightiness”.

Defined this way, gravitas has a heavy, sombre, and dark aspect. However, when professionals think of gravitas, they often mean something different. They are referring to an elusive quality that enables some people to instill confidence in others quickly, reliably and appropriately. It goes beyond technical competence, charm, charisma and intelligence. People with gravitas speak crisply and directly, make eye contact, have excellent workplace relationships, successfully lead teams, are funny or serious when appropriate etc..

They have “the whole package”. It’s second nature and it’s genuine. One cannot be both disingenuous and have gravitas.

Do you have this elusive quality? It’s not the sort of thing people typically tell you. There are subtle clues one gets by watching the reactions of others. In a group, do people stop and listen when you speak?

Are your ideas commented upon and utilised by the group? Are you offered leadership roles? Do people seek out your advice about thorny issues in the workplace and even sometimes heed it? Do you feel “comfortable within your own skin”? These are all good indicators of having gravitas.

That said, I don’t think gravitas and solemnity always go hand in hand. For example, a lawyer with whom I work is cheerful, energetic, warm and emotionally intelligent. She laughs frequently, can be silly and interacts easily. Everyone enjoys working with her.

Nevertheless, she is the most highly respected and influential lawyer in the firm and has a powerful “slipstream” into which others are pulled. She’s a real leader and no one questions her importance to the firm. She has gravitas in spades.

Consider the issue of gender and gravitas.

Men are often assumed to have gravitas, whereas women may be assumed to lack it.

Such assumptions can undermine women in the workplace. However, gravitas is a human characteristic and it goes beyond gender. It may present somewhat differently in men and women, but it’s equally important and real for both.

So, how does one have gravitas? I think it has to do with consistently knowing and being oneself,

Gravitas matters because it differentiates adequate performers from real stars. It becomes more important the older one gets, particularly in a tough economy. Age can work against you in the workplace, except when it’s coupled with gravitas. Then it’s a winning combination.

Some people naturally have gravitas. Others successfully cultivate it. Doing so requires some consistent attention and focus. The first step is to understand what gravitas means to you and to create an intention to manage yourself accordingly. Reflect on what works for you and what doesn’t. Stick with the former and jettison the latter. When you begin to notice positive changes in the ways others respond to you, you’ll know you’re on to something. After a while, consider asking other professionals whose judgment you trust for some feedback. Practice makes perfect.

Don’t doubt it for a minute.

EMILY MORROW, BA, JD (Juris Doctor), was a former lawyer and senior partner with a large firm in Vermont, where she built a premier trusts, estates and tax practice. Having worked in Sydney and Vermont, Emily now resides in Auckland and provides tailored consulting services for lawyers focusing on non-technical skills that correlate with professional success; business development, communication, delegation, self-presentation, leadership, and team building/management. For more information visit www. emilymorrow.com

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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 DANIEL PANNETT - Juniors Barristers Representative Ph/ Fax: 09 307 9826 PO Box 4338 Shortland Street, Shortland Chambers, Levels 10-13, 70 Shortland Street, Auckland 1140 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 JUSTIN SMITH Ph 0064 4 9171080 Fax 0064 4 4729029 P O Box 5722 Wellington 6145 justin.smith@stoutstreet.co.nz

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