At the Bar September 2015

At The Bar September 2015

Mediation in 2015 Referral Advocates Law Society Complaints â&#x20AC;&#x201C; Staying Sane Under Siege New Approach to Member Benefits

From the President Elect INSIDE THIS ISSUE Pg 2 - From the President Elect Pg 4 - A Profile of the 2015- 2016 NZBA Council Pg 6 - Mediation in 2015 – A “Retro-Prospective” Pg 8 - The Values and Functions of a Referral Advocate Pg 12 - Law Society Complaints – Staying Sane Under Siege Pg 14 - LawSpot - Streamlining Access to Legal Advice in the Digital Age Pg 15 - Final Sitting for the Hon Justice White Pg 16 - NZBA Events Pg 18 - CSC – Accessing your Member Benefits Pg 20 - Cloud Back-Up - What Are the Risks? Pg 21 - Don’t Bet Your Life (Or Income) On It - New Member Benefit Pg 22 - Book Review – Balancing Work and Life Pg 25 - Dr Frances Pitsilis - Tips for Sustaining High Performance Pg 26 - Work Pressures Keeping You Awake at Night? Pg 27 - New Members Pg 28 - Petrol Head’s Corner – the Lexus RC 350F Sport Pg 32 - NZBA Council The views expressed in the articles in this publication may not necessarily be the views of the New Zealand Bar Association. EDITORIAL COMMITTEE Clive Elliott QC - Chair Tel: +64 9 309 1769 Email: elliott@shortlandchambers.co.nz Melissa Perkin Tel: +64 9 303 4515 Email: melissa.perkin@nzbar.org.nz CONTRIBUTIONS & ADVERTISING: Jacqui Thompson Tel: +64 9 303 4515 Email: jacqui.thompson@nzbar.org.nz DESIGN AND LAYOUT BY Kirsten McLeod Tel: +64 9 834 2224 NEW ZEALAND BAR ASSOCIATION Tel: +64 9 303 4515 Fax: +64 9 303 6516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz P O Box 631 Auckland 1140

Clive Elliott QC The task of writing the President’s column has fallen to me this issue, as Paul Mabey QC is overseas. We have been very busy since our last newsletter and there are a number of items worthy of mention.

Membership and Member Benefits Our membership has continued to grow in the last quarter - a list of the new members is on page 27. Membership not only brings a range of professional advantages but it allows access to NZBA training and to a wide range of products and services at preferential pricing. We are launching a new member benefit insurance product through Marsh and have added an additional 21 companies which offer member benefits, as a result of an alliance with CSC Buying Group. NZBA receives benefits from the Marsh, LexisNexis and Office Max Group Schemes so you are also assisting NZBA by taking advantage of these schemes. The new Marsh member benefit is a life insurance and income protection insurance package. We encourage members (whether or not they already hold such insurance) to read the article on page 21, which describes the package in more detail. There is also a draw with a chance to win a restaurant voucher each fortnight! The alliance with CSC Buying Group is detailed in an article on page 18. As a result of this alliance, members can now access information about all their member benefits via a very simple app which can be downloaded onto smart phones. This means that members will more easily be able to take advantage of their member benefits with accessible information presented at point of sale. While the alliance with CSC Buying Group offers members even more benefits, NZBA is keen to support CSC as it invests its profit back into communities which need extra resourcing and support. You should have received an email member benefit update advising how to access the app. If you have any questions please contact NZBA Administrator Lisa Mills at nzbar@nzbar.org.nz. We encourage you to take advantage of the extensive range of benefits and to use the member benefit app. NZBA wishes to record it’s thanks to AIG for its sponsorship of the development costs of the member benefit app.

Annual Conference The feedback from the 2015 Annual Conference has been excellent. The theme of Access to Justice was particularly relevant in the changing legal services landscape, with fewer being able to afford representation in courts. We were delighted to see the large number of delegates in attendance. Our thanks goes to all those involved with the conference organisation and to our presenters. An announcement about the venue and dates for the 2016 Annual Conference will be made shortly.

Recent Submissions and Consultations NZBA has recently written submissions on the following matters: • Duties for dealing with evidential video interviews in civil proceedings – this submission was a response to the Ministry of Justice with respect to proposed amendments to the Evidence Act 2006. The Evidence Amendment Bill seeks to regulate the circumstances in which evidential video interviews (EVIs) recorded by the Police may be made available in the context of noncriminal proceedings, not before a Court. • Duties for dealing with evidential video interviews in criminal proceedings – we responded to the Ministry of Justice with respect to the Evidence Amendment Bill and related to evidential video interviews recorded by Police. The aim of the Bill is to clarify the duties for those creating and dealing with EVIs. • Without Notice Applications - this was a submission to the Rules Committee on proposed changes to r 7.23 of the High Court Rules (HCR) (r 7.16 of the District Court Rules), which deals with certificates when lodging ‘without notice’ applications. • Proposed amendments to courts’ and tribunals’ powers and procedures – key elements of this submission to the Ministry of Justice addressed expansion of powers of Court Security Officers, expanding of the current powers under the charging order regime, changing the procedure for determining fitness to stand trial, changes to requirements for Police Officers to leave copies of search warrants with occupiers and broadening the power to issue arrest warrants to bring defendants to court where no summons has been issued. All submissions are available for viewing on the NZBA website. Our thanks go to all those who have contributed to these submissions on the NZBA’s behalf.

Outgoing Council Members On 1 October 2015 a new Council term commences. We have profiled the members of the new Council but (see p4) and take this opportunity to farewell and thank the outgoing Council members for their significant contributions and hard work on behalf of NZBA: TIM CASTLE (Wellington) Tim was admitted to the Bar in 1973. He has been at the independent Bar since 1989. He was also admitted as a barrister in NSW, Victoria and Fiji. Tim’s practice includes complex civil and criminal litigation, sports law and Maori and indigenous peoples’ rights. He has been a member of the Waitangi Tribunal since 2008. Tim has served on the Council since 2010 as a Vice President has been a member of the Law Reform Committee and was part of the team which organised the 2014 World Bar Conference. See www.capitalchambers.co.nz

HAMISH McQUEEN (Auckland) Hamish joined the Council in 2014 as a junior barrister representative. Before joining Shortland Chambers as a junior in February 2014, Hamish worked for two years as a Judge’s Clerk for the President of the Court of Appeal. Hamish assisted with organising the recent young lawyers mooting competition as well as serving on Law Reform Committee. He has recently left to study overseas. JUSTIN SMITH QC (Wellington) Justin Smith is a leading Wellington based barrister who handles general commercial litigation at all levels. He is a former Crown Prosecutor (1982-1986), was a partner at Kensington Swan at Wellington and Auckland (1988-1994) and a partner at Russell McVeagh in Wellington (1994-2007). Justin has been a member of our Council since 2011 and has served on our Law Reform Committee. See www.stoutstreet.co.nz MATTHEW SMITH - (Wellington) Matt is a barrister at Thorndon Chambers. His main area of practice is civil and commercial litigation, with a particular focus on public law. He has special expertise in judicial review and declaratory judgment proceedings. Matt is the author of the New Zealand Judicial Review Handbook (Thomson Reuters: 2011). Matt has been one of our junior barrister representatives a member of our Training Committee and Annual Conference Organising Committee as well as the World Bar Conference Organising Committee. Matt co-authored and presented a paper at the 2014 World Bar Conference. An article based on that paper can be found on p8. See chambers.co.nz MALCOLM WALLACE - Treasurer and Secretary, Vice President (Christchurch) Malcolm left partnership in 2004 to practice as an attorney in the Turks & Caicos Islands in the Caribbean, before joining the independent Bar in 2006. He has a wide range of experience in commercial and property litigation, insolvency, and resource management. He also has a particular interest in trust litigation, including challenges to wills and the validity of trusts and the actions of trustees. Malcolm joined Canterbury Chambers in March 2014. Malcolm has been on our Council since 2010, serving as Vice President for the South Island and as Secretary/Treasurer since 2012. Malcolm has has been a member of and recently chaired our Annual Conference Committee and was a member of the 2014 World Bar Conference organising committee. See www.canterburychambers.co.nz Once again, on behalf of the NZBA, I would like to thank these departing Council members for their significant contributions to the Association, both individually and together.

2015 – 2016 NZBA Council From October 2015 the new Council takes control of the NZBA. We farewell some valued council members, Justin Smith QC, Tim Castle, Malcolm Wallace, Matthew Smith and Hamish McQueen. The NZBA warmly welcomes its new Council.

PAUL MABEY QC – President (Tauranga) Paul was admitted to the Bar in 1977 and practised as a litigation solicitor for 18 years. He joined the independent Bar in 1994 and was appointed Queen’s Counsel as a criminal law specialist in 2000. Paul has been involved in criminal proceedings of all types in all Courts and commenced his presidency of NZBA on 1 October 2014, with his term finishing on 30 September 2016. See www.citychambers.co.nz CLIVE ELLIOTT QC – President Elect (Auckland) Clive is a barrister, registered patent attorney and arbitrator. Before going to the Bar in 2000, he was a partner and headed the litigation team at the firm now known as Baldwins and was with the firm for 17 years. Clive was appointed Queen’s Counsel in 2013. In addition to serving on various committees related to intellectual property, information technology and e-commerce, Clive has authored chapters in various publications on those topics and is President and a member of the management board of the Intellectual Property Society of Australia and New Zealand (IPSANZ). Clive is the NZBA President-Elect and heads the editorial committee for At the Bar. See www.shortlandchambers.co.nz PETER DAVEY (Auckland) Peter began his career with Bell Gully Buddle Weir before moving to Rotorua to take up a position as a Crown prosecutor. He was appointed as Senior Crown Counsel and also maintained a civil litigation practice for private clients. He later became a partner at Lowndes Jordan before joining the independent Bar in 2004. Peter chairs the NZBA Training Committee. See www.davey.co.nz JOHN DIXON (Auckland) John first joined the NZBA Council as the Associate Member representative, being at that time a partner at Meredith Connell. In addition to his eight years at the Crown Solicitor’s office, John spent several years in New York, including a stint at the King’s County District Attorney’s Office, Brooklyn. John joined the independent Bar in 2015 where he practises at Shortland Chambers in criminal law, regulatory law and commercial litigation. John is a member of our Criminal and Law Reform Committees. See www.shortlandchambers.co.nz

JONATHAN EATON QC – Vice President (Christchurch) Jonathan joined the independent Bar in 1998 after 12 years practice in general litigation and as a senior prosecutor. Jonathan is a specialist in criminal jury trial and appellate litigation. Jonathan was appointed Silk in 2013. He practises in Christchurch at Bridgeside Chambers. Jonathan returned to the NZBA Council last year, having previously been a Council member from 2003 to 2010 including a 2 year term as the inaugural Vice-President South Island of NZBA and chairs our Criminal Committee. See www.bridgesidechambers.co.nz SIMON FOOTE (Auckland) Simon practises in commercial, criminal and regulatory matters with particular expertise in complex construction and engineering disputes and international arbitration. He has a particular interest in investment treaty arbitration and has been claimant’s counsel in an investment treaty claim against Australia as well as advising corporates on investment treaty issues. He is a member of Bankside’s Singapore Chambers and is a Fellow of the Chartered Institute of Arbitrators (UK) and the Arbitrators’ and Mediators’ Institute of New Zealand. Simon receives instructions as an arbitrator in domestic arbitrations. Simon is the new chair of our Annual Conference Committee, a member of our Training Committee and was Deputy Chair of the committee which organised the 2014 World Bar Conference. See www.bankside.co.nz LISA HANSEN - Vice President (Wellington) Lisa commenced practice as a barrister sole in February 2010. Prior to that she was a Crown Counsel at the Crown Law Office for 13 years. Her earlier legal experience included two years as a commercial solicitor at Caudwells, Dunedin (1991 to 1993) and three years as the Regional Solicitor for the Department of Conservation’s West Coast Conservancy (1993 to 1996). In addition to appearing in numerous inquiries, judicial review proceedings and resource management hearings, Lisa advises on employment, health, social security and education matters. She is a Gambling Commissioner and a member of Legislation Advisory Committee. Lisa is a member of the NZBA Training and Annual Conference Committees and was also part of the team that organised the World Bar Conference 2014. See www.barristerscomm.com GREG HOLLISTER-JONES - Associate members’ representative (Tauranga) Greg is the Crown Solicitor for Tauranga and senior partner of Hollister-Jones Lellman. He leads its criminal and regulatory practice. He was appointed at the first Crown Solicitor for Tauranga in 1998 and since then has undertaken major criminal trials for the Crown. Greg also acts for the Medical Council of New Zealand and the New Zealand Law Society in professional disciplinary cases. Greg joins the NZBA Council for the first time this year. See www.rhjl.co.nz

DENNIS JENKIN (Auckland) Dennis has over 38 years of experience in the law. He commenced practice as a barrister sole in 1989. Prior to that he was a partner in Cairns Slane & Co, in Auckland. He has a wide background and experience in all fields of court work with special emphasis on civil and commercial litigation, including product liability, tort cases, property law contracts, company and commercial disputes, trusts and estates and some employment law. He regularly presents seminars for professional organisations. Dennis is a member of the NZBA Law Reform Committee. See www.shortlandchambers.co.nz

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

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

ALEXANDRA SINCLAIR - Junior Barristers’ Representative (Auckland) Alex graduated in the top five in her year from Victoria University of Wellington’s Faculty of Law in 2013 and was admitted to the Bar in 2013. In 2012 she won both the Australian Championship Moot Competition and New Zealand Law Students Association Moot Competition. In 2013 she represented New Zealand in the Philip C Jessup Moot Competition in Washington DC where she was named as the 21st best speaker in the competition. In 2013 and 2014 Alex was a Judges’ Clerk at the Auckland High Court and in 2015 she joined Shortland Chambers. Alex has particular interests in conflict of laws, arbitration, land law, intellectual property and media law. Alex joined the NZBA Council in 2014 and is on the Training, Law Reform and Junior Members Committees. See www.shortlandchambers.co.nz

DAVID O’NEILL – Treasurer and Vice President (Hamilton) David is a barrister in Victoria Legal Chambers in Hamilton. He was admitted to the Bar in 1980 and worked initially for a law firm in Napier before returning home to the Waikato in 1984 to work in the family firm of O’Neill Allen & Parker, becoming a partner in 1985. He was initially engaged in criminal jury work. David joined the independent Bar in 1995. He mainly practises in the civil/commercial area of litigation as well as Family Protection and Testamentary Promises claims. David also undertakes arbitrations, both as counsel and arbitrator and is an Associate of AMINZ. Apart from his legal practice, David is a competitive rally driver and writes regular motoring columns for two publications, including At the Bar. David has taken on the role of NZBA Treasurer for the upcoming Council term. See www.nzbarrister.com ALICE OSMAN - Junior Barristers’ Representative (Wellington) Alice is a junior barrister at Stout Street Chambers. After graduating from the University of Otago in 2012, Alice worked for two years as a judges’ clerk at the Auckland High Court. Her key areas of interest include competition law and administrative law, and she has recently published an article on the use of international law in New Zealand judicial reasoning. Alice is a national coordinator of Law For Change, which promotes public interest law opportunities for students and young lawyers. In 2013 she co-founded the Public Interest Law Journal of New Zealand. Alice placed first in the 2015 Wellington New Zealand Law Foundation/New Zealand Law Society Young Lawyer’s Committee, which is supported by NZBA. Alice recently presented a paper at the 2015 NZBA Annual Conference.

STEPHANIE THOMPSON - Junior Barristers’ Representative (Auckland) Stephanie is a barrister at Bankside Chambers, working with David Williams QC. She graduated from Auckland University with an LLB (Hons) and a BA, obtaining the Dean’s Academic Excellence Award for Law and a Senior Scholar Award from the Faculty of Arts. Stephanie joined the Council as a junior barrister’s representative in 2014. In 2015 she was a joint winner of the New Zealand Law Foundation 2015 Ethel Benjamin Scholarship. Stephanie is a member of the Junior Members Committee. She plans to study towards an LLM at Cambridge University in 2016 focussing on international trade and foreign direct investment. DEAN TOBIN - (Dunedin) Dean was admitted to the Bar in 1984. He worked as a solicitor specialising in civil litigation until 1996, when he commenced practice as a barrister sole. Dean undertakes civil litigation in the District and High Courts and acts as an advocate in arbitration and mediation. His practice incorporates general civil litigation, copyright and intellectual property disputes, trust and family protection claims, insolvency, company litigation, construction disputes and sharemilking disputes. Dean was on the Intervention Rule Committee and is a member of the Law Reform Committee. See www.deantobin.com

Mediation in 2015 – a ‘Retro/prospective’ By Rod Joyce QSO QC* As professionals in the field of insurance claim mediation, Paul Moss and Peter Phillips, observe, “lawyers … ought to be healers – healers of conflict, and not warriors or hired guns. They speak of “the shared sense of purpose (mediation) engenders” in the parties and of “the scope for unusual deals going beyond adjudication of the dispute. It is … a substitute to (sic) a day in court (or arbitration) without the risk and expense”1. There are cases that must go to trial. Precedents are important, but not everyone can afford to facilitate their development. How much attention do we pay to the refrains that Moss and Phillips echo? Well, so far as I can see in 2015, quite a lot. Having recently returned to the wider world from the relative confines of the District Court, I am taken with the extent to which private mediation is thriving. Back in 1995 or thereabouts when civil work in the District Courts was very much the poor and neglected relation, I was asked to lead a representative group of practitioners and Auckland District Court staff in the exploration of ways of streamlining its processes. That group’s work led to the initiation of case management in the District Courts (a horse which has since run well in some races but also shown an unfortunate affection for counter-productive micro-management) included a focus on means by which a meaningful degree of costs mitigation might be achieved. All this led to outcomes including the adoption (first in Auckland and eventually country-wide) of a Judicial Settlement Conference (JSC) process as a significant feature of that court’s range of civil process. The rate of success of these conferences was boosted by the fact that oftentimes an absence of settlement on the day was the prelude to the achievement of that very soon afterwards. The 1995 case management developments in the Auckland District Court (where the pilot at that level was run) were matched by similar developments in the High Court which trialled a range of case management possibilities in Auckland and Napier. Over time, changes were introduced nation-wide in both courts and ensconced in the High and District Courts’ Rules. And these included the formal recognition of the JSC process.

Practitioners will, however, be aware that following a review in 2012 the High Court “… decided that from 1 February 2013 a judicial settlement conference will only be allocated where private mediation is, for some reason, in appropriate”. That review had been “… undertaken because the volume of judicial settlement conference work was leaving inadequate time for associate judges to deal with core judicial (adjudicative) work.2” It is perhaps ironic that the growth in popularity of the JSC process at High Court level, speaking volumes as it did for the value attributed to it by litigants and their lawyers, should have led to its virtual demise in that jurisdiction. I would hope that the same does not follow in the District Courts for it is at District Courts’ monetary levels that problems of proportionality (in cost benefit terms) bite most deeply. As lawyers know only too well, the substantial burden that litigation costs cast on most, including the so-called middle class, in the community has long been a bugbear of common law courts generally and efforts to contain them have been both innumerable and relatively unsuccessful. When it comes to costs recovery, New Zealand, ‘tradition’ supports, and the rules attempt by means of regularly reviewed daily rates (which feed into graduated formulae covering complexity and level of justifiable preparation) to maintain, a two-thirds level of contribution to actual and reasonable costs. As a flow on from the Lord Justice Jackson’s civil procedure reforms, in England and Wales there is now a much greater emphasis on proportionality. Costs that are disproportionate may be disallowed or reduced even if they were reasonably or necessarily incurred: this in the context of a system that generally rewards a successful litigant with something approximating actual costs. In terms of the England and Wales Civil Procedure rule 44.4 a standard costs award is now measured in terms including whether the costs actually incurred were: (i) proportionately and reasonably incurred; or (ii) proportionate3 and reasonable in amount … Associated reforms have included court supervised budgeting and costs capping for big, and fixed fees for small, cases. These kinds of changes, though perhaps bound to be unpopular in some circles, surely make

http://www.businessconflictmanagement.com/pdf/BCMpress_05.pdf https://www.courtsofnz.govt.nz/business/guidelines/judicial-settlement-conference 3 Italics added for emphasis 1 2

objective sense. But the century ago observation of John Galsworthy that ‘Justice is a machine that, when someone has once given it the starting push, rolls on of itself’4 still holds all too true, case management itself providing defined tracks (with numbers of way stations) down which the machine can still run relatively unhindered. Another example of unintended consequences. For a variety of reasons it certainly remains difficult for practitioners (whether practising as barristers and solicitors or as counsel at the bar) to contain case preparation simply on account proportionality. There is, for example, the understandable concern that a disappointed at trial client hunting for a scapegoat (often the kind of client who, prior to trial, shows ongoing dissatisfaction with the costs being incurred) will be tempted to sue the lawyer as a secondary target; especially if there is a perception that not every byway was explored in the readying of the case for trial. Such a claim may be quite devoid of merit, but that will not much diminish the resulting distraction and discomfort for the practitioner. It is not just dogged pursuit of ‘principles’ that costs money; it is the process itself. And short of turning to an inquisitorial system (which, with the need for innnumerable judges and associated – including investigative - support, would be to cast an enormous cost of justice burden on the community as a whole) no answer is in sight. So particularly with those cases that lie within the District Courts’ jurisdiction or are not far inside High Court entry levels (where maintenance of proportionality is most fraught with difficulty), resort to mediation at the earliest practicable point in time is surely to be encouraged. It is therefore heartening to note (when reference is had to any New Zealand law list) the considerable percentage of practitioners who emphasise mediation as an important tool in their legal kit. Private mediation frees the participants from the otherwise unavoidable shackles of the best court processes we have so far been able to devise. Its attributes of confidentiality, informality, and party autonomy surely have great appeal. The court process can be kept for when there is no place else to go, because only the binding judgment of a formal adjudicator will resolve the still extant differences. Mediators that parties themselves choose do not sit in judgment. They guide, not over-ride. They help the 4

parties to get to the bottom of their differences, clarifying and then restating them in neutral terms. That process assists reason to overtake emotion, opening previously unrecognised in the heat of the preceding conflict pathways to outcomes of the parties’ own making. Mediation by no means renders lawyers redundant. They can and should be integral to the resolution process. When working with litigants at JSCs I sometimes came across lawyers who appeared to have simply come along for the ride (the ‘giveaway’ being little sign of pre-conference preparation) and, on other occasions, lawyers who could not let go of courtroom-style posturing. But thankfully they were in a minority. The keys to truly and usefully supporting a client through any kind of alternative to court adjudication dispute resolution process must obviously include a warts and all in-depth grasp of the client’s case and a willingness to really listen to the other side’s point of view. Mediation demands objectivity but can also serve subjectivity – doing that, for example, by providing sea room for ‘unusual deals’ as Moss and Phillips have styled outcomes no court could give. Clients need to be encouraged to look forward to the opportunity to make choices from the range of reconciliation possibilities that mediation can uncover rather than to persist in looking back in anger. That will not always be easy, especially as properly prepared clients are those who have been well and truly reminded of all those things that litigants tightly wrapped up in their own cases are not keen to hear – reminders of the monetary and emotional levies that trial extracts, rehearsal of their cases’ weaknesses, and reiteration of the inherent uncertainty of litigation. As lawyers know, there is no such thing as an impregnable case, nor any such person as a judge who is infallible. And of course, court judgments quite often have to come down in favour of one of several, each with their own appeal to logic and justice, point of view. So especially in an age where individual autonomy is much valued, mediation is surely a ‘must’ for dispute resolution where party to party negotiation has not worked early on and those engaged favour a controllable outcome over a moment’s ‘fame’ as precedent setters. * Roderick Joyce, QSO, QC recently retired as a District Court Judge, is a Professional Teaching Fellow at the University of Auckland Law School and now offers his services as a mediator. For more information see: roderickjoycemediation.co.nz.

Justice, Act II (1910).

The Values and Functions of a Referral Advocate This article is taken from a paper presented at the World Bar Conference 2014 by Claire Hogan (Ireland), Tetyana Nesterchuk (England and Wales) and Matthew Smith (New Zealand1). A copy of the full paper and the research on which it is based is available on the International Council of Advocates and Barristers’ website.2*

The Need for the Restatement of Values and Functions The specialist advocacy profession is currently perceived to be undergoing a paradigm shift. The worldwide financial crisis highlighted the need to provide efficient and cost effective legal services where quality has almost become secondary to cost. However, in some jurisdictions, the reforms which gave rise to the changes in the legal professional landscape had commenced well before the financial crisis. These reforms, coupled with pressures on funding, mean that many values and norms which we have taken for granted are coming under sustained pressure, and new values and norms have the potential to take hold. As a profession, we need to be astute to changes which society is undergoing and adapt to those changes, but without compromising the core values of our profession. In the days of consumerism and emphasis on consumerled services, we must, as advocates, remember that the legal justice system, of which we are an integral part, exists not only for the benefit of consumers of the legal justice system but for the benefit of society as a whole. We have to be mindful that changes to the structure of the legal profession do not lead to a fundamental shift in the way our legal justice system serves our democratic society. The Bar can only do so by reminding itself about the fundamental principles and values which are inextricably linked to its primary function in the society which it serves.

Research Approach Having been asked to present a paper on referral advocates with an international perspective, we were keen to adopt a wider perspective than merely our own home jurisdictions of England and Wales, Ireland and New Zealand. We were able to draw on the experience of the members of the International Council of Advocates and Barristers (ICAB),3 who were instrumental in organising the very conference at which we are lucky enough to present this paper. In particular, we have sought to distil the values and functions of advocates in Australia, England and Wales, Hong Kong, Ireland, Namibia, New Zealand, Northern Ireland, Scotland, South Africa and Zimbabwe. As a result, we were able to identify common threads and

shared values to ensure that our restatement of the values and functions of a modern specialist advocate could be of use across all of the ICAB jurisdictions, despite the inevitable differences in the structure and issues faced by the profession.

What is a referral advocate? When we refer to a “referral advocate”, we mean an independent self-employed advocate who accepts briefs to appear before court from any person on whose behalf they are instructed. The concept of the “referral advocate” entails practising as an individual and, in principle, the receipt of instructions from another professional who is acting for, and/or is an agent of, the client. These characteristics lie at the heart of what barristers are: individually independent and not the direct representatives of the client. The importance of the individual independence of referral advocates is reflected in the prohibition on barristers practising in partnerships, which exists in a number of ICAB jurisdictions. The barristers’ independence from the lay clients ensures the performance of their primary duty to the court to act in the interests of justice rather than “win by whatever means”.4 Another important difference between the independent referral Bar and employed advocates is that the former are subject to the so-called Cab Rank Rule and are professionally obliged to accept instructions regardless of any personal dislike for the client or the case. We note that in some ICAB jurisdictions, it is possible for advocates in limited circumstances to accept instructions directly from clients (for example via a direct access scheme). Advocates doing work in such situations would not strictly fall within our definition of “referral advocates” in carrying out that particular work, as they are not in receipt of instructions from another professional who is acting for, and/or is an agent of, the client. However, if appropriate safeguards exist, then the principle of referral advocacy can be preserved.

The Common Values of a Modern Advocate We consider that all modern advocates should and do subscribe to the following common values:

Hogan, C., Nesterchuck, T., and Smith, M. “The Values and Functions of a Referral Advocate”, Address at the World Bar Conference 2014, Queenstown, New Zealand. 2 See http://media.wix.com/ugd/987caa_6de17811c37a481d80d580164a9874e9.pdf 3 According to the ICAB Constitution, at para. 4(a), those members are the Australian Bar Association, the General Council of the Bar of England and Wales, the Hong Kong Bar Association, the Bar Council of Ireland, the New Zealand Bar Association, the General Council of the Bar of Northern Ireland, the Faculty of Advocates (representing the Scottish Bar), the General Council of the Bar of South Africa, the Zimbabwe Bar Association and the Society of Advocates of Namibia. 4 Arthur J S Hall & Co v Simons [2002] 1 AC 615 at 686E-F (per Lord Hoffmann). 1

(1) Justice – more precisely, this means acting in the interests of justice. It is inextricably linked to one of the most important functions of the modern advocate – ensuring effective administration of justice. This point was pithily made in Lord Clarke’s closing address at the 2012 World Bar Conference: “… the existence of an independent Bar is central to the working of the courts and thus the rule of law, and without the rule of law, justice and democracy are nothing. There it is in a nutshell.”5

(2) Independence – this can be an elusive concept to identify. The different aspects of independence valued by the courts and Bar associations in various ICAB jurisdictions are set out in detail in the paper from which this article is taken.6 However all advocates in the jurisdictions surveyed were subject to the Cab Rank Rule, which promotes access to justice by ensuring that legal representation is available to all who need it, including odious clients and unpopular causes. Observance of the Cab Rank Rule by referral advocates is essential for ensuring the practical realisation of the Rule of Law in our legal systems.7 The importance of the Cab Rank Rule was noted in 2002 when Lord Hobhouse said that the rule was “vital to the independence of the advocate since it negates the identification of advocate with the cause of his client and therefore assists to provide him with protection against governmental or popular victimisation”8. A few years later, the then President of the New Zealand Court of Appeal, Anderson P, described the “cab rank principle” as: “…a professional obligation to facilitate the administration of justice. It is not overstating the obligation to call it one of the foundation stones of a free and democratic society.”9 (3) Trust and personal integrity – Both judges10 and professional regulators11 rightly demand the highest standards of integrity from advocates. The integrity of advocates is bound up with their duty to the administration of justice as a whole, which is promoted by the relationship of trust between the Bench and the Bar, and indeed within the Bar itself. Yet, as Michael Beloff QC has pointed out, advocates do not possess some inherent morality - “they are cut from the same crooked timber of humanity as all of us”12. It is therefore important that we do not take our commitment to integrity for granted. It is a precious value which has to be preserved, protected and celebrated.

(4) Confidentiality – To obtain and retain the confidence of lay clients on whose behalf the advocate acts, it is essential that the clients’ affairs remain confidential. Confidentiality encourages and enables clients freely to discuss their intimate details without fear that they will be disclosed to the public. This is critical to establishing and maintaining the professional relationship. It also serves the interests of justice by ensuring that the real issues are before the courts and determined by the judges. There are two higher purposes for confidentiality: first, it recognises and gives effect to the dignity of the client; and secondly, it acts as a reminder to the referral advocate of his duty of loyalty to the client on whose behalf he or she acts.

(5) Courage – The advocate’s courage to fearlessly represent his client, whether in light of general public hostility or in light of hostility from the Bench, is just as important to the administration of justice as integrity. The value of courage was colourfully described by Judge Parry: “Advocacy is a form of combat where courage in danger is half the battle. Courage is as good a weapon in the forum as in the camp. The advocate, like Caesar, must stand upon his mound facing the enemy, worthy to be feared, and fearing no man. … Unless a man has the spirit to encounter difficulties with firmness and pluck, he had best leave advocacy alone.”13 Courage outside the courtroom is just as important. It takes courage to give honest advice to the client, rather than the advice the client wants to hear. This is even more so where honest advice means that the client would not instruct you again.

(6) Competence or excellence – It goes without saying that an advocate cannot represent his or her client or serve

Lord Clarke of Stone-Cum-Ebony, “Why the Bar matters and will go on mattering”, closing address at the World Bar Conference 2012 Op. cit, n1 7 See, for example, Lord Woolfe “The Twenty First Century Bar: What is it for?”, Inaugural Lecture, delivered on 7 May 2014 in the Signet Library, Edinburgh, at p. 10 8 Arthur J S Hall & Co v Simons [2002] 1 AC 615 at 739G-H. 9 Lai v Chamberlains [2005] 3 NZLR 291 (CA) at [106] (upheld by the Supreme Court at [2007] 2 NZLR 7). 10 See, for instance, Sir Thomas Bingham MR (as he then was) in Bolton v Law Society [1994] 1 WLR 512 at 518A: “It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness. That requirement applies as much to barristers as it does to solicitors.” 11 See Part D of each section of the Annex to the full paper (n5). 12 “A view from the Bar”: The 2010 Sir David Williams Lecture. 13 Judge Edward Abbott Parry, “The Seven Lamps of Advocacy” (London, 1923) at p. 23. 5 6

the interests of justice unless he or she is competent to do so.14 Availability of competent legal representation is fundamental to a just and fair system of justice. Similarly, for the public to have confidence in the administration of justice, they must have confidence in the ability of the legal profession to provide effective and competent legal advice and representation. However, there is no reason why we, as a profession of specialist self-employed advocates, should not strive for excellence rather than mere competence. Excellence in advocacy, knowledge of the law, courage to use that knowledge effectively, and client service within that context, sets apart the independent referral Bar from other professions and will ensure the survival of the independent Bar despite any structural changes to the profession and the increasing demand for cheaper services. The excellence of advocates and the judiciary is at least partly responsible for clients all over the world choosing to resolve their disputes in certain international jurisdictions. Nowadays, Inns of Court, the Faculty of Advocates, the New Zealand Bar Association, the Honorable Society of King’s Inns in Ireland (and, no doubt, societies representing barristers and advocates in other jurisdictions) are recognised as leading centres of advocacy training and expertise. They and all other members of ICAB should be encouraged to devise (or continue to improve) advocacy training courses to allow young advocates to hone their skills. Without this, the continuity of excellence at the independent Bar, which is its hallmark, cannot be assured. Finally, it is important that the culture of excellence is encouraged among young advocates since they are the future senior Bar and judiciary.

(7) Civility and camaraderie – The use of dubious tactics by an advocate and discourtesy more generally is likely to injure his reputation as an advocate and the reputation of the Bar as a whole. Advocates representing opposing sides to any dispute would do well to remember that they are both trying to serve the interests of justice by defending their clients’ rights by all proper and lawful means. This, however, should not prevent them from being civil to each other. We could do worse than to remember the words of Judge Parry in 1923, that we should set an example to other bodies of learned men and women and “Strive mightily, but eat and drink as friends.”15 An advocate’s contribution to the civilizing of humanity is evidenced in

their capacity to argue furiously in the courtroom, but then sit down as friends over a drink or dinner16. This habit is often interpreted by the layman as a mark of their ultimate corruption. In our opinion, it is one of their greatest moral achievements.

The Functions of a Modern Advocate The functions of a modern advocate reflect in some measure the values identified above. In practical terms, however, the modern advocate performs the following functions: 1) Provision of specialist advocacy services – Specialist referral advocates, by virtue of their training and the natural focus of their practice, often have considerably more experience in the art of advocacy than their employed colleagues. The strength of advocates belonging to the referral Bar, as opposed to employed advocates, consists in the their ability to act for opposing sides in different cases. This variety of experience allows them to gain experience of advocacy for two opposing sides of the argument, which would not be available to their employed colleagues (at least not without moving to a different employer). In his recent book17 Richard Susskind spells out the suggested end of the legal profession as we know it due to economic demand for cheaper legal services, developments in IT and the use of online dispute resolution methods. However, even he acknowledges that: “… much of the work of the oral advocate is highly bespoke in nature and it is not at all obvious how the efforts and expertise of the courtroom lawyer might be standardised or computerised. Indeed, oral advocacy at its finest is probably the quintessential bespoke legal service.” For this reason, Susskind concludes that there is little doubt that the very high value and complex legal issues will continue to be argued before courts and that “the clients will continue to secure the talents of the finest legal gladiators who will combat on their behalf.”18

2) Provision of litigation advice – This includes advice on: prospects of success, evidence, compliance with procedural rules, procedural applications, and realistic advice on the costs of litigation and the impact it can have on peoples’ lives. Clearly the work of a modern advocate, at least in commercial and civil matters, is no longer confined to appearing in court. Nowadays, the trial represents the final phase of a long litigation process

See Medcalf v Mardell [2003] 1 AC 120, per Lord Hobhouse at [51]. Judge Edward Abbott Parry, “The Seven Lamps of Advocacy” (London, 1923) at p. 107 16 John R. Silber, quoted in the Wall Street Journal, 16 March 1972, at p. 14 17 “Tomorrow’s lawyers: An introduction to Your Future” (Oxford University Press, 2013). 18 At Chapter 6, “Trial lawyers and barristers”. 14 15

which is subject to case management by the courts. With the current emphasis on “hands on” case management by judges in many ICAB jurisdictions, and on alternative dispute resolution, effective advocacy depends just as much, if not more, on the steps taken by an advocate prior to bringing the case to court as on the “day in court” itself.

3) Provision of specialist and/or expert legal advice – More and more often, advocates are asked to give advice on how to proceed with a matter (e.g. structuring transactions, restructuring a business, setting up family trusts, etc.) so as to avoid litigation or investigation in the future. This role is a prophylactic one: to avoid or mitigate legal (including litigation) risk. 4) Problem-solving – Today’s advocate is expected to possess more general skills in problem-solving. He or she is required to have knowledge of the alternatives to litigation. The growing use of alternative dispute resolution is common to many ICAB jurisdictions. Modern advocates need to adapt to the changing nature of dispute resolution and be able to advise their clients on all potential choices open to them. In some of the ICAB jurisdictions, New Zealand and Hong Kong being examples, there is a professional obligation on advocates to keep clients advised of alternatives to litigation19. This professionally incentivises the advocate to act as a problem-solver. To properly advise the client on their choices, advocates need to be able to understand the client’s objectives, including commercial or financial concerns. While these extra-legal matters do not affect the advocate’s legal analysis, they may often be relevant to identifying and

helping to weigh the options practically open to the client. Finally and closely related to the need to understand the client’s extra-legal objectives, a modern advocate must be aware of the role of the modern media and be able to advise clients on media strategy compliant with the law, including the court’s procedural rules.

Conclusion The legal profession must recognise modern drivers of change, including globalisation and digitisation, and it must respond to them. But it is important not to forget the values the profession stands for and the functions it best performs. Many of the values and functions of the modern specialist advocate are not new but rather they reflect practices developed and lessons learned over many years by the specialist advocates who came before. Their legacy serves as an apposite reminder not only of the living nature of our legal justice system, but also of our need to ensure that we are vigilant to look backwards as well as forwards as we mould the values, the functions and indeed the expectations we place upon the shoulders of modern specialist advocates, to ensure that those advocates reflect and can meet the needs of our ever-changing society. Claire Hogan20 Tetyana Nesterchuk21 Matthew Smith22 Law Library, Fountain Court, Thorndon Chambers Dublin Chambers, Wellington Temple, London

* The NZBA thanks the authors for allowing the article to be abridged and published in At the Bar.

19 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (New Zealand), rule 13.4; para 116A of the Code of Conduct of the Bar of the Hong Kong Special Administrative Region. 20 See http://www.lawlibrary.ie/members/Claire-Hogan/5532.aspx 21 See http://www.fountaincourt.co.uk/people/tetyana-nesterchuk 22 See http://chambers.co.nz/our-barristers/matthew-smith/

Law Society Complaints – Staying Sane Under Siege! By Margaret Malcolm LLB MBA* Like so many things in life these days, legal practice is increasingly complex and stressful. But there is nothing quite so debilitating as receiving a Law Society complaint. There was a time when practising as a barrister sole was seen as the pinnacle of legal practice and certainly a more straightforward option for those who intended to focus on advice and court work. The luxury of having no trust account, minimal staffing issues or business partners to worry about, not to mention being your own boss, immune from being sued by disgruntled clients and having the wonderful luxury of flexible working arrangements – were the best of all possible working lifestyles in the law. Unfortunately, in more recent years, things have changed. Barristers now need approval to practise on their own account; arrange escrow accounts to hold fees in situations where they don’t need an instructing solicitor; ensure clients are informed in advance of work to be undertaken, what fees are expected and procedures for making complaints. Most barristers now have professional indemnity insurance in case of being sued. Practice life for a barrister has changed and this is resulting in more complaints being investigated by the Law Society. Last year the area of law resulting in the most Law Society complaints was family law with 23% while complaints about criminal law and civil litigation were each at 10% of total complaints received. If one adds in employment law and immigration, this makes up about 50% of all complaints investigated by the Law Society last year. Of course, not all these complaints would be against barristers as solicitors are clearly practising in these areas of law as well. However, it is an indication that the areas of law which tend to be the domain of barristers are now the subject of more Law Society attention.

There is an art to responding to Law Society complaints. Being overly litigious and adversarial is not necessarily the best approach. Nor is it a good idea to try to manage the complaint yourself. The types of conduct that result in complaints still primarily arise from a breakdown in the lawyer-client relationship because the client believes he or she has not received the service or result that was expected. Allegations of negligence or incompetence, inadequate reporting, overcharging, failure to follow instructions, delay and discourtesy – all feature as major sources of discontent from unhappy clients. Over many years of dealing with complaints, the most difficult and distressing were those where a good lawyer has bent over backwards to try and assist an impossible client. Unfortunately, some people become so obsessed with their feelings of injustice that they are incapable of rational consideration of their reality. The best strategy for handling complaints is: 1. Have systems and processes in place that avoid opportunities for complaints in the first place. Spending time in the initial stages of taking instructions; reviewing options; setting expectations about possible outcomes and costs and recording these discussions can prevent huge amounts of angst and are essential to providing protection in the event of later relationship breakdown. The Terms of Engagement letter needs to be well drafted – including the procedures for making complaints – as required by the Rules of Conduct and Client Care. 2. Maintain good communications with clients. This is easier said than done in a busy barrister’s practice. It can be exhausting dealing with the workload. Good secretarial or junior barrister help can alleviate a lot of the load but, in the end, it is you the client wants to hear from. 3. If things start to go bad, don’t put the file away and hope things will improve. Keep that file front and centre and, if necessary get some help. 4. Line up a colleague to talk to about problem files and problem clients. If there is no-one obvious, then contact someone on the Friends Panels operated by ADLS Inc or the NZLS.

5. If the dreaded letter from the Law Society arrives in your in-box or in-tray, don’t ignore it! Get the file and find someone who can help you draft responses. Engage pro-actively in the process. Under the Rules of Conduct and Client Care, all lawyers must have in place procedures for handling complaints by clients “with a view to ensuring that each complaint is dealt with promptly and fairly”. This can include the “reference of complaints to an independent lawyer for consideration”. The NZLS complaints process can be daunting. A barrister who was recently the subject of a complaint said she felt “under siege” with no support or assistance being offered when she received notification of a complaint from a former client. The process took months and was incredibly stressful. Eventually, the Standards Committee decided to take no action. The complainant then referred the matter to the Legal Complaints Review Officer. This resulted in further communications, lengthy explanations and a hearing, which after many months, resulted in the complaint being dismissed. Having a complaint hanging over your head for months – in some cases, more than a year – can take an enormous toll on your health and mental wellbeing. There are many lawyers who believe the legal profession is over-regulated and that the Lawyers and Conveyancers Act has gone too far in its consumer protectionism. According to the most recent NZLS Regulatory Report, 87 per cent of complaints files closed in the year to 30 June 2014 resulted in no action being taken or were resolved or withdrawn. This does suggest

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that there needs to be a much more robust approach to receiving and investigating complaints. Most complaints should be dismissed at a much earlier stage. It also suggests that, when a complaint is received, lawyers should take a firm approach to dealing with the complaint and seek to have it dealt with as quickly as possible. The NZLS operates an Early Resolution Service. In the last reporting year, 774 complaints were referred to that service and the average time to conclusion was 30 days. However, the total number of complaints received by NZLS last year was 1,630. Taking into account complaints still being investigated from earlier years, it is likely closer to 2,000 lawyers are dealing with a complaint at any time. It is no wonder the legal profession has the highest rates of stress and depression. A barrister’s life is about dealing with disputes and other people’s distress. If the client feels they have not achieved the outcome they want, it is far too easy for them to complain. If you receive a Law Society complaint, get help and remember 87% of complaints result in no action being taken or are resolved or withdrawn! * Margaret Malcolm is a former Professional Standards Director and Executive Director of Auckland District Law Society and has helped hundreds of lawyers resolve complaints through communication and mediation. She is now a practice management, business consultant and director and holds a practising certificate as a barrister sole. For more information see www.margaretmalcolm.co.nz

Speakers include: The Hon Chief Justice Allsop AO, Federal Court of Australia The Hon Chief Justice Tom Bathurst AC, Supreme Court of NSW Professor Andrew Burrows QC (Hon) FBA DCL, University of Oxford The Rt Hon the Lord Hope KT PC, House of Lords The Hon Justice Susan Kiefel AC, High Court of Australia Professor David McLauchlan, Victoria University of Wellington The Hon Justice Andrew Phang, Supreme Court of Singapore

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LawSpot – Streamlining Access to Legal Advice in the Digital Age by Nick Mereu*

LawSpot is a free online legal Q&A service. Its purpose is to make the law more accessible to all New Zealanders. This article explains the service and how barristers can not only be involved, but gain from the service. When Richard Susskind suggested in 1996 that email would soon become the most common method that lawyers communicated with their clients he was ostracised by the UK legal community and accused of bringing the legal profession into disrepute. Now, well and truly vindicated, Mr Susskind (OBE and author of Tomorrow’s Lawyers) suggests that the nature of legal service delivery is poised to change more radically over the next two decades than it has over the last two centuries. LawSpot is the first mover in New Zealand to streamline peoples’ access to legal advice in the digital age. More and more, people are relying on the internet for their first source of legal information. LawSpot’s website, www.lawspot.org.nz, not only provides an encyclopaedia of answers to common or generic legal questions, but also links people to private lawyers where they need more detailed assistance. Questions submitted to the website so far have involved issues ranging from employment law: “can my employer demand a medical certificate for unpaid sick leave”, to consumer rights: “does a dentist need to replace a filling if it falls out”, and the perennial pub discussion: “is it illegal to ride a bike while intoxicated”. LawSpot is a charitable trust founded in 2012 in partnership with the Wellington and Hutt Valley Community Law Centres. Its mission is to “empower everyday New Zealanders by providing greater access to the law and legal services in general”. Originally LawSpot was staffed by volunteer lawyers and operated like a community law centre. But the site quickly outgrew its resources, receiving more than 50,000 site visits and 5,000 questions in its first six months. As well as requests for community legal advice, LawSpot started receiving many questions from people who were outside of the community law focus, and just needed an online ‘first port of call’ when hunting for legal advice. LawSpot had questions from large family trusts about trust property and from small business about employment disputes. LawSpot is now harnessing community law centres and law firms across the country to better meet the high user demand. A newly renovated LawSpot website will launch in September 2015. Lawyers who have LawSpot accounts will not only be able to draft and publish answers to generic legal questions on the website, but LawSpot will now also automate client referrals for clients who need further detailed or paid legal advice. Barristers are ideal partners for LawSpot as they are able to both publish answers directly on the website and, if properly

authorised, can now also take advantage of the intervention rule changes and take referrals directly from LawSpot. LawSpot can offer barristers access to pro-bono work easily and efficiently through the website. Barristers can pick and choose any questions they would like to answer and LawSpot can record their contributions and pro bono time they have given. Advice given on the website to date has so far related to employment, tenancy, family and relationship property, criminal, and wills, trusts and estates areas of law, but LawSpot also strives to help anyone else who has a legal problem and needs help taking the first step. There are no bounds on the types of questions that come in and the types of clients that need help. For more information about the service and how to register for an account, visit www.lawspot.org.nz after the site relaunches in September, or email Nick Mereu on ceo@lawspot.org.nz. * Nick Mereu is the CEO of LawSpot and Legal Counsel at Insurance Council of New Zealand. He has been involved with the website since its beginnings. What is LawSpot? A website that provides everyday New Zealanders with an answer to their legal questions or a referral to a lawyer who can help. What is LawSpot looking for? Barristers who want a flexible way of managing their pro bono contributions to the community and who are interested in accepting referrals from LawSpot that could lead to paid work. LawSpot will be officially providing services to the public from September 2015 onwards and is expecting many questions to come in after that date. What’s in it for you? • An easy way to manage your pro bono contribution. • Another avenue to market your legal services to potential clients. • Making it easier for potential clients to find you and access your services. • Client referrals from LawSpot are free. What do you need to do next? • Check out www.lawspot.org.nz after the relaunch in September. • Register for a lawyers’ account. • Check out our fancy training materials • Ask us any questions you like. • Get LawSpotting!

Final Sitting for the Hon Justice White No.1 Court, Court of Appeal, Wellington, Friday 28 August 2015 The final sitting for Justice White was a rare ceremonial sitting for the Court of Appeal. Speaking for the Government, the Attorney-General described the Judge’s career as long and distinguished, both at the Bar and on the Bench. Justice White was a partner in the firm now known as Kensington Swan, before going to the independent Bar in 1986. He took silk two years later. The Attorney noted that the Judge had specialised in commercial and administrative litigation and had appeared in a huge variety of cases both for and against the Crown. He commented that it was no exaggeration to say that the Judge had appeared in more of the early cases on the Commerce Act 1986 than any other lawyer in New Zealand. For the Law Society, Mr Chris Moore said that few lawyers have given back to the profession as selflessly and as continuously as Justice White had, and he noted that aside from his work on a wide range of committees for the Law Society, the Judge had been one of the shapers of the Lawyers and Conveyancers Act 2006. It was the Judge who was the architect of the fundamental obligations provision of s 4 of the Act. “While this was a codification of pre-existing principles,” said Mr Moore, “the simple genius of capturing and articulating them has put them front and centre of all considerations by the organised profession”. Both the Attorney and Mr Colin Carruthers QC colourfully recounted the circumstances of Justice White’s appointment to the Bench. Mr Carruthers, speaking for the NZBA, said that his appointment was to many a surprise, not because it was undeserved or unwarranted, but because many had thought that he had decided on a different career path. The Attorney suggested that in fact, on hearing the news of the Judge’s swearing in, Sir Thomas Eichelbaum had fainted. While acknowledging Sir Thomas’ surprise at the news, Mr Carruthers somewhat disappointingly described the Attorney’s story as hyperbole. Justice White in his reply credited Sir Thomas with giving both himself and Mr Carruthers their starts in law. The President of the Court of Appeal, the Hon Justice Ellen France, recorded the contribution the Judge had made to the work of the Court since his appointment to it from the High Court, saying that the “judgments written by Justice White while on this court reflect the Judge’s careful and meticulous approach and the width of his practice and experience prior to appointment to the Bench.” They reflected a broad understanding of and interest in legal principles and a love of the best traditions of the law. When dealing with issues related to statutory interpretation, Justice White’s approach was notable for the careful attention paid to both statutory text and purpose. Mr Carruthers noted that one of the features of Justice White’s time on the bench was that he was very much aware of justice being seen to be done and that he went

out of his way to be fair and courteous to those appearing before him. “Losing litigants,” Mr Carruthers said, “could not have felt that they had not been heard or been disappointed with the way in which they were treated. The result may well have been a different matter.” Justice White’s contribution to common room debate on important issues such as who should be the next All Black first-five was mentioned by Ellen France P. According to Mr Carruthers, it has been said by one of his friends that being a judge in New Zealand was really only a hobby. Justice White’s real job was being on a judicial panel for rugby. In what he suggested was an unprecedented move, Mr Carruthers then produced an exhibit, asking that it be described as a present from a grateful nation – namely an All Black hat to encourage the Judge on his forthcoming trip to England and Wales to watch 15 World Cup games. An insight into the Judge’s career was provided by Justice White himself who advised that there had been 42 permanent judges of the Court of Appeal since its establishment in 1952, and he had known all 42. He himself was no. 38. He said that: “In my time as counsel, I also appeared before 30 of the permanent members and four of the Chief Justices and during the last four years I have sat with 13 of the permanent members of the Court, as well as some 23 of the High Court Judges who provide such invaluable assistance as members of our criminal and civil divisions.” Justice White described the Court as one of his legal homes and paid tribute to those he had sat with. Over the last five years the Court had determined each year on average 500 substantive appeals (both criminal and civil) as well some 150 miscellaneous applications. It was one of the busiest courts in the country. Of the 500 appeals heard each year, and allowing for Supreme Court reasoning variations in appeals that are dismissed, the decisions of the Court are effectively final decisions in 95 per cent of the cases it hears. The Court’s commitment to justice and its work ethic, said Justice White, are achieved through the collegiality of its members, which was a significant feature of the Court. Justice White concluded by noting that it had been a great privilege and a particular pleasure to have had the opportunity to be a member of the New Zealand judiciary, first with his colleagues in the High Court at Auckland, and then in the Court of Appeal. The NZBA congratulates Justice White on his career achievements and wishes him well in his future endeavours.

Have you used your Member Events Annual Conference 2015 – 6-8 August 2015 Benefits App yet? The highly successful 2015 Annual Conference was held in Napier. Its theme was access to justice. Delegates heard from a range of speakers on the increasing challenges facing the public, the profession and the judiciary. The sessions allowed discussion of possible solutions and strategies that can be adopted to meet these challenges.

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In addition to the conference sessions, the delegates enjoyed the social functions including an informal dinner at the Art Deco Masonic Hotel and a wine tasting session, formal dinner and debate at Mission Estate.

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Panelists Simon Foote, Dr Anna Sandiford and Justice Simon Moore

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Speakers: Hon Justice Helen Winkelmann Hon Justice Geoffrey Venning Hon Justice Raynor Asher Hon Justice Simon Moore Karen Clark QC Luke Claasen Helen Cull QC John Dixon Hon Robert Fisher QC

www.nzbar.org.nz Simon Foote Chris Gudsell QC Frances Joychild QC John Katz QC Julian Miles QC Alice Osman James Rapley Dr Anna Sandiford Stephanie Thompson Bridgette Toy-Cronin

07 823 7979 | www.csc.org.nz Organising Committee Malcolm Wallace (Chair) Simon Foote (Deputy Chair) John Edgar Lisa Hansen Matthew Smith Lisa Mills Melissa Perkin

Junior Barristers’ Mid-Winter Drinks 13 August 2015 by Hamish McQueen, Junior Barrister Representative, NZBA Council The New Zealand Bar Association and Shortland Chambers hosted the third annual Auckland junior barristers’ midwinter drinks function on the evening of 13 August. Shortland Chambers kindly sponsored the evening. Practising as a junior barrister is becoming an increasingly popular pathway, and this was reflected by those attending the event, with around 50 juniors and members of Shortland Chambers gathering together for the evening. There was a diversity of juniors in attendance from the civil bar, criminal bar, judges’ clerks from the Auckland High Court and solicitors from the Public Defence Service. Daniel McLellan QC and Andrea Manuel addressed the function, with both providing insightful and light-hearted speeches about their paths to the Bar and their work as barristers. Andrea passed on her five top tips for good practice as a barrister, and talked about the benefits of being at the Bar. Daniel commented on the value, as a barrister, of being able to take on a wider variety of work than might be possible in a firm and using his experience of being able to develop a varied practice covering media and defamation law following his move to the Bar. The event was enjoyed by all. Both the NZBA and Shortland Chambers look forward to continuing it as part of the Auckland legal calendar in the years to come. The NZBA is committed to developing and supporting the junior bar. The NZBA is keen to hear from juniors (up to 7 years PQE) about the types of professional development events they would like to see. Please send comments or inquiries to NZBA Executive Director, Melissa Perkin, at melissa.perkin@nzbar.org.nz.

Stephen Laing (Judges’ Clerk), Alexandra Sinclair (Junior Barrister, Shortland Chambers), Peter Wright (Shortland Chambers)

Alexandra Sinclair introduces the speakers, Andrea Manuel and Daniel McLellan QC

Bill of Rights Seminar 20 August 2015 This year marks the 25th anniversary of the New Zealand Bill of Rights Act 1990 (NZBORA), the 40th anniversary of the Treaty of Waitangi Act 1975, the 175th anniversary of the signing of the Treaty of Waitangi and the 800th anniversary of the Magna Carta. We were fortunate to be able to call on the Chief Justice, the Rt Hon Dame Sian Elias GNZM PC QC, the Rt Hon Sir Geoffrey Palmer KCMG AC QC and Dr Andrew Butler (partner, Russell McVeagh) to present a seminar on the Bill of Rights in practice and its relationship with Treaty issues. The highly successful seminar was ably chaired by Dr Gerard Curry. It was followed by a launch of the publication of the second edition of Dr Andrew Butler and Dr Petra Butler’s book “New Zealand Bill of Rights Act: A Commentary”, (2nd ed. LexisNexis 2015). The NZBA would like to thank event hosts Russell McVeagh and sponsors LexisNexis for their contributions and support.

New Member Benefits App Puts Discounts at Your Fingertips By Jenna Shaw* NZBA has recently partnered with the CSC Buying Group to provide members with an even wider range of products and services with significant savings. As part of the change, our member benefit partner AIG assisted by providing sponsorship for the development by NZBA and CSC of a phone app, which allows members to quickly and easily access these savings. Information on all member benefits is also available on the NZBA website under the member benefits tab. The future of member benefits is not only here, it’s right in your pocket... in the form of the newly released NZBA Member Benefit App. Launched at the NZBA Conference in August, the app was sent to attending delegates by text message. A large number of you have already been using it to access instant savings on 44 nationwide brands such as Office Max, Marsh, Bunnings and Noel Leeming, as well as enjoying one-stop, one-touch access to all the other member benefits — now literally — at your fingertips. There are significant savings to be made by using your Member Benefits App to purchase products and services that you are probably already buying. For example: • Planning a weekend deck-building project? Your Bunnings trip could cost you about $300 less...so let your DIY fantasies run wild. • Fancy popping down to Queenstown for a romantic getaway? Stay at the Millennium, Heritage or Copthorne hotels and save an average of $70 per night on your accommodation. • Just moved house and in need of an appliance upgrade? The outstanding “cost plus 10%” member benefit at Noel Leeming means you can purchase the flat screen tv of your dreams, without sacrificing your partner’s coffee machine needs or the kid’s Playstation 4. With the release of the app, your member discount at Office Max also got an upgrade, with savings of up to 50% off already-low prices on all your office and stationary needs. This includes furniture, cleaning products and coffee and tea for your break room, covering all of your office essentials at once. The Member Benefits App was developed by the NZBA in partnership with CSC Buying Group, a not-for-profit organisation that believes in added value and creating richer businesses and communities through every day

savings. By facilitating nationwide group buying, CSC helps you spend less on your daily purchases and save for what really matters, while investing profit back into communities that need extra resourcing and support. This means that every time you use your Member Benefit App to purchase from CSC suppliers you are not only saving money, you are giving back to the wider community through meaningful projects and initiatives. At home in New Zealand, CSC Buying Group supports the disability sector, funds and runs sports and health programmes for kids, and partners with other local philanthropic businesses and organisations to become involved in charity projects such as a recent Nepalese Banquet fundraising dinner for the rebuild of Nepal after the earthquake. CSC also works with suppliers and other partners to provide aid and relief abroad where it is needed. Following Cyclone Pam’s devastation of Vanuatu in March this year, CSC was able to send a shipping container of food and building supplies to that community, with the container itself being transformed into a home for a family who had lost theirs. In this fast-paced world driven by technologies and economies, CSC Buying Group has found a way to meet the demands of today without losing sight of people and how connected we all are. It is a difference you can feel, and now NZBA members are part of that vision too. For those not at Conference, or who have yet to install the app, here is how you can get started.

For iPhones: 1. A text has been sent to your device. 2. Click the link and save the app to your home screen by tapping the “share” icon at the bottom of the screen.

got that at under half-price!”

Craig, Member Benefit App access information on howUser to

For Android phones (Samsung, HTC, Huawei): 1. A text has been sent to your device. 2. Click the link and save the app to your bookmarks. 3. Add the webpage icon to your home screen. Unfortunately every phone model is different so the app is unable to do this automatically, but Googling “[your phone model] add webpage to home screen” should deliver easy to follow instructions. 4. For older phones and troubleshooting, just contact NZBA at nzbar@nzbar.org.nz and tell them what model your smart phone is so they can help you out.

obtain discounts on the NZBA website. Once your app is installed, just touch the icon on your home screen to access all your member benefits — click the logo of each supplier for your discount details, and show your phone at point of Expires 31St May 2015 Powered by CSC to Buying Group purchase redeem the offers.

“I was building a new deck at home and decided to try using the Member Benefit App hope you enjoy the instant at Bunnings. I saved $300 on theWe cost of the savings in your pocket, and the feel-good factor that comes from timber!” making a real difference with your buying behaviour. Dave, Member Benefit App User

* Jenna Shaw is the Strategic Marketing and Communications Executive at CSC Buying Group. Visit www.csc.org.nz or contact office@csc.org.nz

The NZBA Member Benefits App can only be installed on one device, so at this stage it cannot be shared among family members or staff. The app also only works on phones, and cannot be used on your iPad, more at laptop or computer. Members can however

w.nzbar.org.nz

07 823 7979 | www.csc.org.nz

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Cloud Back-Up: What Are the Risks? By Chris Peace, Risk Management Consultant The cloud is a network of servers, accessed via the internet, which is used to provide a service to the end user. It’s no one “thing” because different companies own servers. You probably already use some cloud services such as, for example, an accountancy service. However you may not currently back-up data into the cloud and instead rely on backing up locally. Now is the time to consider the risks of both types of back up of data.

What about (un)certainty? One uncertainty around a cloud service is that of the provider continuing in business. It is best to choose a provider that has been around for some time so you can check their track record. You should check that their B2B cloud service model minimises the threat of allegations of illegal distribution of videos, photographs, music or other data that might lead to legal action against them.

What is “risk”? It is worth considering what we mean by risk. Risk has all sorts of definitions, but the one I like best is the effect of uncertainty on objectives. This might be a positive or negative effect. Not all risk is negative. Sometimes a risk can give us gains (e.g. when we make contributions to a superannuation fund where the investments might increase in value).

What about the integrity of the data centre? In general, your provider should always have more infrastructure than is required. This often is referred to as N+1. That is, if their servers require an uninterruptible power supply of X minutes, they actually provide 2X; if they need 2X they provide 3X, and so on. Similarly, if the data centre requires one standby generator, make sure they have two. It is even better if there are two (or more) independent data centres that are geographically remote from each other. In this way the Cloud offers durability as well as accessibility.

Local back up v Cloud storage: Most of the time, an on-site back-up system will work well. Equally you may send back up discs to a storage facility, where the risk is limited to loss en route or loss or damage at the facility. However, once in a while the damage may be so widespread that your servers became inaccessible. This happened to some businesses after the February 2011 Christchurch earthquake when their servers were in the red zone cordon. New Zealanders are exposed to earthquakes, volcanic eruptions, floods and other natural events that could damage infrastructure or our workplaces. Those businesses using cloud data storage are able to protect their information against this kind of wide spread damage. Cloud back-up should mean that all but the last few minutes or even seconds of your data is available. It will be also be accessible from elsewhere in New Zealand, or even the world, which is a very big plus if you have service people who are geographically spread. Under this model, you would still be able to access and update client data while you sorted out new accommodation and IT. Storage expansion: There is also the ability to quickly expand your storage if circumstances change without having to buy and install new servers, especially if this is a short-term need. A caveat on this is that you would have to be sure that the running costs were cheaper than the capital costs of buying and maintaining servers and that the system had good IT security.

What are your objectives? Each business owner needs to think about the effect that loss of data or IT capability would have on the business. If you rely on supplying goods or services to customers, how long before the inability to process orders results in loss of business? How long before the inability to create and send invoices has an impact on cash flow? If your back-up systems could do with some improvement, perhaps it’s time to have a conversation with your colleagues and ask some of the questions outlined above. Taking the time today may result in better sleep and pay dividends down the track. * Chris Peace established Risk Management Limited in 2003 to help clients establish effective risk management frameworks, including systems for business continuity, and to carry out major risk assessments. He also provides in-house and public risk management training courses. For more information see www.riskmgmt.co.nz Ricoh IT Services can help you with tailored solutions for all your business technology needs. Contact Roly Smoldon, GM Ricoh IT Services, rsmoldon@ricoh.co.nz

Don’t Bet Your Life (Or Income) On It By Helen Condon and Mark Rogers This article outlines a new NZBA member benefit from Mercer Marsh Benefits™1. Most people wouldn’t think twice before insuring a house or car, but often neglect to insure their ability to earn an income and protect their family. The concept of insuring ourselves and our income is no different to protecting any other asset. In fact, future income is likely to be the largest and most valuable asset that we can choose to protect. Income protection is designed to pay you an income if illness or injury means you are unable to work for an extended period of time. How would your family cope if something happened to you? How would you maintain your lifestyle and protect those that matter most? Most people are aware that ACC can provide some support if you are injured, but it doesn’t cover illness. So what happens if you are unable to work following an illness? Life insurance provides a tax-free lump sum benefit that can be put towards credit card debts, mortgages, health expenses and funeral costs. If you are diagnosed with a terminal illness, an advanced lump sum payment of your life insurance can assist with ticking items off your bucket list. The NZBA, in partnership with Mercer Marsh Benefits™, is launching a comprehensive personal insurance package that is designed to give you and your family peace of mind. The plan, offering Life and Income Protection insurance at competitive premium rates, is available to all members of the NZBA working more than 15 hours per week. The benefits are provided and underwritten by Sovereign Assurance, who are New Zealand’s largest life insurer. They pay out more claims than any other life insurer in New Zealand and, in 2014, Sovereign paid out over $330 million in claims – that’s over $6 million a week.

Special Concession We have negotiated a window of opportunity for all members of the NZBA. Members have 60 days from 1 October 2015 in which to join the plan on-line with automatic acceptance of pre-existing medical conditions. This means that acceptance is provided to all members up to the age of 65, regardless of medical history, with life cover renewable up to the age of 70 if you remain a member of the NZBA.

Fortnightly Lucky Draw promotion Every fortnight during the 60 day automatic acceptance window Marsh will be running a prize draw. If you accept a policy during this period you will be entered in to the draw with the chance to win a restaurant dinner voucher to the value of $250. Terms and Conditions apply**. Policy Coverage We have negotiated a standard package for members to provide a maximum of $100,000 for life insurance, and 75% of your annual fee income up to a maximum of $60,000. This is the equivalent to an annual base salary of $80,000. However, if you feel that the coverage under the standard package is not right for you, additional benefits can be applied for (subject to application and acceptance by insurers). Already have Life Insurance or Income Protection in place? We understand that many members might already have coverage in place and these may be joint policies with spouses. If this is the case we are able to offer a full free review of your current insurance and look at options to move your cover to take advantage of the automatic coverage. In addition to this, we can also provide cover to your spouse through the facility (subject to application and acceptance by the insurer). Plan website Marsh will be launching a dedicated website for all members of the NZBA with the link being made available through the NZBA Member Benefits App and the NZBA website. If you have any questions about the NZBA personal insurance plan, please contact Mercer Marsh Benefits™ on 0800 805 333 or email mmbnz@marsh.com .

Here’s some food for thought – Did you know? • In New Zealand, there is one death every 16 minutes2. • Of adults with a disability 42% were caused by disease or illness3. • Every day about 24 New Zealanders have a stroke. A quarter of these occur in people under the age of 654.

**TERMS AND CONDITIONS FOR RESTAURANT DRAW The winner will be drawn by means of a lucky draw and will qualify to win a dinner voucher to the value of $250 sponsored by Sovereign Assurance. All NZBA registered members who accept a life insurance or income protection policy (between Thursday October 1 and Tuesday December 1 2015) are eligible to go into the draw to win the prize. Marsh’s decision is final and no correspondence will be entered into. The prize is not redeemable for cash. You agree to these terms and conditions by entering the competition. A prize draw will take place fortnightly during the period of the competition and the winner will be contacted by phone or email. Your name will remain in the draw during the entirety of the competition length; however, if you win, your name will be removed from any further draws. © Copyright 2015 Marsh Ltd. All rights reserved. 0615

Mercer Marsh Benefits™ is a joint venture between MMC sister companies Marsh Limited and Mercer (N.Z.) Limited. Statistics New Zealand, Population clock, September 2014 2013 Disability Survey, Statistics New Zealand 4 The Stroke Foundation of New Zealand, 2014 1 2 3

The End of the Work Life Balancing Act? by Jacqui Thompson* Balancing Work and Life: a Practical Guide for Lawyers Julia Batchelor-Smith** RRP $50.00 - Members who subscribe to the NZBA e-library plan should contact Matt Pedersen at matt.pedersen@lexisnexis.co.nz to take advantage of their discount.

However you have to warm to a book that plainly states that the primary issue with the term “work/life balance” is that we become tied up in trying to separate the two spheres entirely or we muddle them in a misguided attempt to restore a mythical balance: “from a common sense perspective, balancing work and home life must be an outmoded concept. The two spheres simply cannot be kept separate any longer (even if we wanted them to be).” The answer, suggests Batchelor-Smith, is achieving work/ life blending. This is a more realistic goal and we should give up the balancing act. Blending is having one contented life rather than switching between two separate lives. This is a concept that Generation Y has already embraced. For example, Gen Y thinks nothing of taking a work call at home. But in exchange, they expect the work lines to be blurred so that they can access social networks at work, take longer at the gym during the day, or take personal calls without frowning from those above. Blending therefore involves a recognition of having one life and not two. Recognising this allows you to focus on the rewards you achieve overall.

Self-help books can be similar to life skills seminars; we feel inspired for five minutes after reading/attending but then our old habits quickly reassert themselves and we are back to where we started – except feeling guilty about it. However every now and then a book comes along which lets you take away something valuable that sticks in your memory. This book is one of those. The author, Julia Batchelor-Smith, is a senior associate in litigation at one of the top tier firms. She combines her practice with being a mum, a competitive ballroom dancer and writing and speaking on strategies for practice management and on gender equity. To fit all of that in, it can be assumed she practices what she writes about. The book is an easy and fast read. It is well written in a familiar format: each chapter outlines the issues related to a particular topic and then recounts the personal experiences of others lawyers, who are mostly at the top of their profession. To some extent this focus on lawyers is a shame, as what Batchelor-Smith has to say could easily benefit many people in other professions.

Technology has enabled us to redefine our boundaries. We no longer leave work behind at the end of the day. Batchelor-Smith suggests that we look for blending opportunities and make peace with the fact that our boundaries need to be fluid. This resonates for many of us, particularly if you spend some of your timing working from home. This may be a good way to achieve blending. Instead of facing the commute into the office and the distractions of colleagues wanting to chat about both social and work issues, many people find this a more productive way of working. But it is about being fluid with time boundaries and creative about how you communicate with others. Importantly, the book makes the point that while blending is great, muddling is not okay – don’t take calls at home when you are distracted by dealing with children or other activities, or from a café where background noise will make it difficult for all on the call to hear. Your clients and colleagues are owed your full attention. I was in the middle of a teleconference call at home with QCs and the judiciary giving me their valuable time, when my cat proudly brought a mouse into my office. This is not a normal workplace hazard for most. I admit my concentration did waiver. I now firmly close the door before beginning calls or online meetings. And then carefully search the house for escaped rodents afterwards. Some of the suggestions for identifying blending

opportunities definitely belong in the higher income bracket (having your child carer bring the kids into town for a special lunch date springs to mind). However many are simply common sense. One great suggestion is to develop a thick skin. As blending work and life is an inherently subjective concept, what is appropriate for you may not be right for others. Don’t let what other people think of the way you run your life to enter into the equation. Of course, having said that, your colleagues’ and your boss’ opinions are relevant. Batchelor-Smith then goes on to identify effective practice techniques, and the chapter headings in this section show the areas to concentrate on. Not all of these can be covered here but a couple need emphasising: Prioritising your daily workload – a lack of prioritising can lead to serious stress. The first step is to identify what is important and what is urgent. Only matters that are both important and urgent require immediate attention. Batchelor-Smith outlines the decision matrix from Steven Covey’s book The Seven Habits of Highly Effective People1 and then provides simple but effective suggestions on how to actually implement prioritisation of work. Overcoming procrastination – this can rapidly descend into a seriously destructive habit that will hamper your productivity and effectiveness. To get a handle on it, you need to consciously resolve to break the habit. Work out when you are most likely to procrastinate and what your triggers are. Procrastination is a waste of time and energy. If you want to get motivated, just start. Waiting until you are in the mood is simply an excuse for indulging in procrastination. Marketing on a time budget – as Batchelor-Smith says, most lawyers have a love/hate relationship with marketing, but it is an inescapable requirement for them. Again she identifies some practical techniques and tools to help undertake this, from a simple happy birthday to a client, to setting up Google alerts to notify you when something that might interest your clients comes. Care is needed with this; in my experience, some lawyers stress themselves by rushing to be the first to announce a news item to clients, but may not explain clearly why the client should care. Don’t rush to print; instead comment knowledgeably in a timely but measured way. The chapters on progressing your career are useful but one comment stood out for me from the section on Keeping it in perspective. Don’t be a victim, BatchelorSmith counsels, as the negativity will spill over into your 1

personal life. Take responsibility for your choices and if you are unhappy, do something about it. Of course, left unspoken is the inevitable implication that one of those choices might be not to be a lawyer, or not to have a career path that aims to achieve the top levels of the profession. The material on parenthood and the law and women in the law covers very important areas and Batchelor-Smith writes about them in her usual practical and non-judgemental style. In fact, the book has a strong focus on women. Of the 57 lawyers who contributed, 43 were women. The material is interesting and deserving of a thorough reading rather than a light summary in this article. I was very interested in the section on self-care strategies because we get a lot of feedback on how stress and overwork is affecting those in the legal profession. The advice was mostly common sense and realistically did not purport to offer a magical instant cure. Batchelor-Smith recommends we embrace the 80/20 rule (aim to live well for 80 percent of the time), eat well, drink water, exercise, get enough sleep, remove toxic people from our lives, talk about problems, limit self-destructive behaviour, invest time in relationships, have a hobby and take time for ourselves. Batchelor-Smith also notes the importance of resilience. Resilient people thrive on challenges, bounce back from adversity, reach their full potential and have a positive impact on others. In order to be resilient however you need to learn optimism, and have an outlook of positivity. Resilient people also seek and give support and may demonstrate self-awareness and empathy. The final chapters deal with managing stress, financial literacy and nurturing important relationships. Again, they deserve reading rather than a fast skim. However BatchelorSmith’s style of writing makes it easy to take in the material quickly. Having reached the end of the book, it is worth turning back to the first chapter. This states that you can have it all - so long as you know what “it all” means for you. It is time, Batchelor-Smith writes, to give ourselves a break. “It is far more productive and positive to focus on your own personal goals that to compare yourself to an elite minority”. *Jacqui Thompson, NZBA Training Director/Newsletter Committee. **Julia Batchelor-Smith will be speaking at the CWLA Professional Women’s Conference 2015 in Christchurch on 9 October 2015. For more details see www.cwla.org.

Covey, S The Seven Habits Of Highly Effective People: Powerful Lessons In Personal Change (Simon & Schuster Ltd, 1999)

Tips For Sustaining Your Highest Performance at All Times by Dr Frances Pitsilis, MB BS (Mon) Dip Obst, Dip Occup Med, FAARM, ABAARM, FRNZCGP* This is the first of a two part series of articles. In the next issue, Dr Pitsilis will discuss her High Performance Programme and how to use it. Everyone knows that people often vary in their abilities, but in some professions, the demand for high performance must be constant and reliable. In the end, how you view your life and your work influences your response to the events happening around you. Maintaining control of how you think about things and manage your work and life is going to be important all the way through. The ultimate goal is to perform at a high level without this affecting your ability to perform and your health. Burnout, no matter how mild, needs to be avoided. What are the symptoms of poor performance? When people don’t perform well at work they may notice that they are unable to concentrate or think analytically. They may also lose confidence. Some people either have a poor appetite or go the other way and have cravings for sugar and salt. Alcohol intake may well increase. Other symptoms include low morale, a lack of confidence, becoming indecisive, feeling less commitment to work, and even behaving badly at work. People may find themselves becoming more argumentative and having difficulty with people that they don’t normally have difficulty with. And ironically, overwork can itself be a response to not doing very well. Mild burnout includes symptoms like finding it difficult to get to sleep, and functioning better late in the evening. In fact, if you are still awake at 11pm, you get a second wind and then it is hard to go to sleep. We all can get a little bit tired around 3pm as a normal biorhythm. However, people who are starting to burnout find that this mid-afternoon fatigue is far more severe. When it is associated with feeling anxious, we call this “wired and tired”. Other people may find that they get tension headaches, agitation, salt and sugar cravings, pulse rate

increases and more sweating occurs. Moderate burnout symptoms include salt and sugar cravings, significant afternoon fatigue, significant headaches, muscle weakness and muscle pains. The person can no longer handle stressful events and takes longer to recover after stressful events. They just cannot go to sleep and they start getting every virus that is around. People can get bloating, diarrhoea and irritable bowel, and women get worse premenstrual syndrome. Severe burnout is something no-one wants. People may look pale, have hollow cheeks and look unwell. They wake up tired, they become lightheaded, have low blood pressure, get depressed and then can develop chronic illnesses like chronic fatigue syndrome, fibromyalgia syndrome or gastric ulcers. People can develop other chronic illnesses like chronic pain syndromes, anxiety, depression, heart attack and stroke, poor concentration and brain fog. Help is at hand There are seven useful rules for enhancing your performance: 1. Don’t get burnt out – the cost of burnout is too high and you are expendable. Full recovery (and we know it is never really full) can take up to two years. 2. You cannot have it all – look around you. Everyone seems to “have it all” but they don’t really. There is always a price to pay whether it be a marital breakdown, a health issue, or the financial cost of poor performance. If you want more at work, something has to go – so you must decide what it will be. 3. Put your own mask on first – yes, that is right. It is like the air hostess says, “look after yourself first because no one else will look after you”. If you can look after yourself it means you can look after your family and your clients, and your work. 4. Stop and take a regular reality check – what I mean by that is stop and examine your life, your work, what is important and what really isn’t important. Think about the way you think – is this causing you to create problems that don’t exist?

5. Put “first things first” – sometimes people can fill up their days spending a lot of time on trivial things that don’t get them anywhere. It is important to look at your priorities like relationship building, planning, prevention of problems, etc. and schedule these as a priority as compared with trivial matters and time wasting activities. Research has found that businesses that spend 85 per cent of their time on “important but not urgent” activities (planning, values clarification, preparations and presentations, relationship building) are the most successful. Twelve per cent of time should be devoted to “urgent and important” activities (crises, deadline2 driven work) and 2% spent on unimportant non-urgent matters (trivia, junk mail, escape activities). 2

Covey, S. et al First Things First (Free Press, 1996)

6. Don’t overwork – too much work and not enough of everyday life is bad for your health. In Japan there is actually a term for sudden death from overwork “Karoshi”. 7. Follow the Dr Pitsilis High Performance Programme. This will help you to prevent poor performance and how to enhance your performance and resilience. This topic will be covered in the next issue of At the Bar. * Dr Frances Pitsilis is a highly experienced doctor who consults over a broad range of health areas including second medical opinions for chronic illness. She was featured in the 10 part TV series “ Is Modern Medicine Killing you?” She speaks and writes widely about motivation, achievement, resilience and stress in life & work. For more information, see www.drfrances.co.nz

Work Pressures Keeping You Awake at Night? by Kirsten Taylor If you’re struggling with stress or sleeping troubles this may be having adverse effects across many other areas of your life including your work performance or your relationship with friends and family, not to mention finding time to exercise and eat well. There is overwhelming evidence to show that sleep is literally THE foundation of all health and wellbeing. Not getting enough sleep each night has been shown to alter the expression of over 700 genes in the body. Studies show links between lack of sleep and a vast array of health conditions including anxiety, depression, cardiovascular disease, diabetes, premature ageing, memory loss, substance abuse and weight gain. With approximately half of the NZ population having sleeping troubles it’s no wonder there is an increasing prevalence of these health conditions within our communities. Quality sleep supports optimal healing and repair in the body as well as better preparing you for the daily challenges of life. By prioritising your sleep, you are protecting yourself from all aspects of ill health, giving your body the most powerful of anti- stress strategy and ensuring you get more out of your day. If you find it hard to achieve your 8 hours of sleep each night, read on for our top sleep tips below.

• Reduce Stress. Stress is undoubtedly the most common reason for sleeping problems. Cortisol, a hormone produced during times of stress, is stimulating by its very nature and can have a serious impact on your ability to fall asleep and stay asleep. Do all that you can to mitigate the stress in your life. If you find you have a ‘second wind’ from 10pm until 1am and become energized at this time, or you go to sleep and wake again an hour or 2 later, or several times in the night – cortisol may be an issue for you. You can reduce cortisol with these tips: - Make sure you are in bed by 9.30pm with the lights out by 10.00pm. - Take a blend of vitamins and minerals which will help your body to manage cortisol response and nourish your nervous and adrenal systems. Look for a formula with a combination of the following ingredients: Magnesium, B vitamins, Vitamin C and tart cherry (a natural source of melatonin). - Introduce stress reducing activities such as yoga, meditation and regular exercise. - Limit your caffeine consumption throughout the day as this will put the adrenal system into overdrive and cause a spike in adrenaline and cortisol. It can take up to 9 hours for the caffeine to be processed by your body so try not to consume any caffeine after 2pm to prevent it from interfering with your sleep. As an alternative consider drinking decaffeinated coffee or caffeine free herbal teas or pure water throughout the day.

• Set an alarm to start your bedtime wind down routine 1 hour before your anticipated sleep time. Switch off your laptop and stay away from screens of all kinds. It has been scientifically proven that interactions such as emailing, texting and Facebook etc. can delay sleep onset by up to 1.5 hours so try to avoid interacting with technology in the lead up to bedtime as the light emitted from these screens can interfere with the body’s production of melatonin (your sleep hormone) and stop you from getting your much needed rest. • Wash your worries away. A warm bath helps your muscles relax. Research has shown a hot bath or shower half an hour before bed helps bring about a change in your body temperature which is needed to fall asleep. • Minerals and nutrition for relaxation. Mineral deficiencies are a leading cause of sleep disturbances as they can adversely impact on the nervous system and the body’s ability to handle stress. Minerals taken before bed can have a positive impact on naturally sedating the nervous system. They help neurons to “fire” more functionally. Find a formula which contains nutritional co-factors that support all phases of sleep and take it each night before bed. • Breathing Techniques. Deep slow breathing can reset your nervous system and induce a state of relaxation which will enable you to get to sleep. If you are not sure where to start there are some fantastic guided mediations and breathing technique videos online.

• Avoid Alcohol. Don’t use alcohol as a sedative to get you to sleep as it does not promote good quality sleep. You don’t get the full phases of sleep and it will often wake you up between 12am and 3am which according to Chinese medicine is ‘Liver’ time. • Prepare for tomorrow. Check your schedule as you finish work for the day so you are not wondering if you have forgotten anything for the next work day. Make a list of everything you need to do the next day. Keep a note book by the bed in case you get some ideas that need to be remembered. Write them down and then forget about them until tomorrow. • Develop a regular sleep routine. Go to bed at the same time each night and get up at the same time each morning 8 hours later. Even in the weekend try to get into a good sleeping pattern. Have a wind down period before bed with no stimulating activities involving the TV, computer, electrical device or intense physical activity. This is your time to unwind and relax. • Make sure your bedroom is a comfortable temperature (18.5° C to 21°C) and reduce outside noise and light. Use ear plugs to reduce outside noise and blackout curtains and/or an eye mask to block out light. This encourages your body to achieve the deeper restorative phases of sleep. * Kirsten Taylor is the Managing Director of SleepDrops. She is a qualified Naturopath, Nutritionist and Medical Herbalist. For more information see www.sleepdrops.co.nz

New Members The NZBA welcomes the following new members: Luke Acland Kent Arnott Ani Bennett Miles Beresford Amy Burrows Gregory (Bill) Calver Charlotte Griffin Julia Graham Aniva Hansen Frances Iggulden Noel King

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Petrol Head’s Corner – the Lexus RC 350F Sport By David O’Neill* Lexus New Zealand contacted me and asked me to review their new Lexus RC 350F Sport. They don’t have an outlet in Hamilton and so the press car was sent down by car transporter and I picked it up from Waikato Toyota. My first impression was that it was a stunning looking car. It’s very low, long and wide. It’s incredibly stylish. From the front end it has the new, what is described as “predator style” grille, and it does look good. From the side it’s long, low and very eye-catching. From the back – yeah – okay. And then you get inside – whoo hee! Very cool! I’ll talk some more, later in this piece, about the interior. The car is 4.7m long but only 1.4m high (think waist height). It has a 3.5 litre V6 quad cam motor in it. The maximum output is 233kw and claimed fuel consumption is 9.4 litres per 100km. That’s not too bad for a car which weighs 1.7 tonnes and has a stonking great V6 in it. However I wasn’t able to achieve that figure (don’t know why…….). I wasn’t too sure what to expect when I first got in the car, but the first thing I noticed is that it was hard to get into. I am a lot taller than 1.4m, so had to sort of slide down and shuffle sideways into the vehicle. However, once in, the allencompassing seats were something else. I have driven a few cars by now and I have to say that the seats in this Lexus were the most comfortable seats I have ever encountered in a motor vehicle. They are

truly a cut above any other seat in any car I have driven. You actually feel like you are sitting in them rather than on them. They wrap right round you and have seat heaters and blowers plus about a million different ways to electrically adjust them. The same can be said of the passenger seats, back and front. The whole family travelled to Auckland in the car and surprisingly it fitted everybody quite comfortably, including my leggy 13 year old son. I wouldn’t want to try it with adults, but all said and done, it’s not a car you buy to carry four people around in. The boot is fairly big. I didn’t try the golf club test however, but it looked like it would fit a set of golf clubs and a trundler quite comfortably. The rear seats do flop down to make it into a hatchback. Somehow I suspect Lexus stuck the “flop down” button in there to appease somebody – though not too sure who. If you really wanted a car to lug around loads of stuff then get something else. Starting price is $122,500. It’s not cheap but it’s seriously a cut above a lot of others when you come to gizmos and the serious bits of kit. When you get inside the car it completely surrounds you. The steering wheel slides up and forward when the ignition is turned off and slides back into position when you start the car. You gotta love this keyless ignition. If you have the keys in your pocket you can walk up to the car, touch the door handle and it unlocks, hop in the car and push the start button and it starts. There is nowhere to put the key, so it has to be kept in your pocket. If only they could invent a device that would lock the car as you walk away from it, without having to grope around and find the keys and press the lock button, then it’d be the complete package. The instrument panel is a virtual one and can be configured to give truckloads of information. The car settings for navigation, radio, media, phone, etc, are all

from a large screen in the middle of the car controlled by a touch pad at your fingertips. I had to learn to avoid touching it inadvertently because I’d either get instructions on how to get to Invercargill from the sat/nav system or the radio station would change to the Concert programme when I was listening to Coldplay on the Bluetooth from my iPhone…… I would tell you everything that’s in the car, but it would mean that this article would go on forever. To be frank, there wasn’t much that was missed out. It had everything that opened and shut and extras for Africa. The sound system was 17 speakers (I wouldn’t have a clue where they put them all), and the sound was pretty fantastic. The seats you already know about – the best seats I have ever sat in in a car (do you get the picture)? The performance was not quite what I expected. I knew it had a 3.5 litre V6 with quad cams, so thought I was going to be getting a real fire breathing monster. However, the curb weight, without anybody in it, is just less than 1.7 tonnes. It’s a pretty heavy car. It’s got a pretty cool feature where you turn a rotary knob to put it into “sport mode” and the colours on the rev counter change. Push it down to return it to “normal” and the colours change back. If you are feeling all overcome

by the Green Party, then you can turn it to the left (yes, that’s true) and it will go into “economy mode”. I didn’t try “economy mode”. Surprisingly, I had it stuck in “sport mode”. [Editorial note: we’ll get him into a hybrid if it kills him...] While the car didn’t shift ground phenomenally quickly, it was a very smooth and classy tourer. However, when you put your foot down the sound is absolutely glorious. Frankly I would buy the car just for that. It really did sound stunning and it wails and howls once you get up into the rev range. Listen – it’s a boy thing – okay! The finish on this car is beautiful. The quality of the material used is extremely high and my understanding is that this is the sort of thing that Lexus consistently do year in and year out. If there was a gripe it was trying to get in and out of the car. It’s fine once you are in, but when you are my size (a little bit larger than ordinary), it’s tough trying to get into the massive front door (the only door available), if you are in a car park. The doors are huge, as they have to be, to allow rear passengers to get in and out, but I found it quite difficult to enter and exit and do the Houdini thing to sit down or slide out. Handling wasn’t too bad for a car of this weight and

size. It felt well balanced and I thought it went around the corners pretty well. If you gave it too much welly, traction control kicked in and straightened the car up (of course I wouldn’t do that …)! Petrol use was fairly heavy. I achieved about 11.1 litres per 100km and that was over a five day period around town and then up to Auckland and back. However, I didn’t think that was too bad for gas use because it did have a big motor and you are lugging a fairly heavy car around. The more I drove it the more I liked it. I thought value for money it was pretty good. It would be a great addition to anyone’s garage, particularly if it was just you and your better half at home with the kids having shot through. It is a very smart looking car. The cabin is chocka block full of all the goodies known to the motoring world, plus a few extra. I didn’t get to try them all out. A lot of them are present in all the high end cars so weren’t hard to work out. Some of them were simply out there. I didn’t have time to plod through the owner’s handbook so left them alone. It had some rather cool touches, such as changing the ambience of the LED lighting in the dashboard by selecting a different colour. It was littered with LED lights on the outside and the internal lights didn’t have the

traditional switches, but rather you touched them and they came on and to turn them off you touched them again. It had a weird feature of letting you know, in the external rear vision mirrors, when a car was too close to either side. The edge of the mirror lit up like a fluorescent barley sugar, which caught your eye, telling you a car coming up from the rear was too close. It was weird because you thought somebody had thrown something at the mirror, but it was just the warning light telling you that somebody was closer than, say, four or five feet. The only other odd thing about it was that the handbrake (as they are called traditionally) was a pedal that sat above the footrest in the driver’s foot well. I think it was there because they had run out of space to put it anywhere else. In summary, I liked it. It is a good looking car, goes well and is super comfortable, and so would grace anyone’s garage. * Petrol Head David O’Neill is a barrister practising in Hamilton. David is a member of the NZBA Council and writes regularly for At the Bar.

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