NZBA Newsletter December 2007

Newsletter December 2007

Incorporation possibility for barristers next year

Advantages still an open question B

arristers will be able to incorporate once the Lawyers and Conveyancers Act 2006 takes effect, but commentators expect few to do so. The new act will come into force in July 2008 and provides for “incorporated law firms.” These are defined as companies providing services to the public, meaning that the legislation contemplates that barristers’ practices can be conducted through companies.

The New Zealand Bar Association has not discussed this issue yet and does not have a view about it. However,

treasurer Trevor Shiels said his personal view was that the legislation did provide for barristers to incorporate, but it was still not clear what controls would exist.

The advantages or disadvantages of incorporation would depend on those details.

However, he said the next part of the definition was much more controversial and unclear. It restricted who could hold non-voting shares to lawyers actively involved in the provision of legal services, relatives, or administrators of the estates of the lawyers or relatives.

Mr Shiels said the definition of “incorporated law firm” provided that the only persons who could be directors or hold voting shares were lawyers actively involved in the provision of regulated legal services by the company.

Mr Shiels said the New Zealand Law Society had wanted the right for family trusts to hold non-voting shares to be spelt out in legislation, but this had not ● Cont. on p.2

In this issue . . .

Incorporation possibility President’s report Council agenda ABA meeting Junior barristers Remedies issue Pakistani regime Bar Chat Benefits Portfolio Mentoring programme Compendium sales Council minutes Court of Appeal Practice note

p.1 p.3 p.4 p.6 p.7 p.8 p.9 p.11 p.12 p.13 p.13 p.14 p.15 p.19

Ph: (09) 303-4515

At the Australian Bar Association council meeting, from left, Tom Bathurst (president), Jim Farmer QC (NZBA president), Dan O’Connor (ABA hon. secretary).

Fax: (09) 303-4516

P.O. Box 631 Auckland Email: nzbar@nzbar.org.nz N.Z.1140 Bar Association Newsletter. September 2006. Page 1

Incorporation possibility for barristers: occurred. The society was accordingly of the view that the holding of shares by trusts was excluded by implication.

He said it was nevertheless strongly arguable that, so long as the people who were registered as shareholders in the incorporated law firm met the requirements of the definition, they could hold them in trust either for relatives or for others.

He described the society’s position as “somewhat surprising,” saying it was a leap of logic to assume that something not expressly included was impliedly excluded. It also appeared that the society was indicating that it would endeavour through practice rules to make it clear that shares could not be held by trustees.

“Quite why it would want to do so is not clear to me. It is also not clear to me what power the New Zealand Law Society might rely on as authorising such a practice rule.”

Mr Shiels noted that barristers paid tax on a receipts basis. There was a widely-held perception that this treatment must inevitably change if barristers incorporated. However, he said his view was that incorporation was not necessarily the decisive factor in this regard.

“Potentially more important for the taxation status of barristers is whether they have legally enforceable rights to recover their fees. Currently they don’t.

If the so-called intervention rule no longer remains, then it is probable that barristers will have legally enforceable rights to recover their fees.”

However, he said even this was unclear from the act. A legally enforceable right to recover fees was perhaps more likely to bring about a change in whether barristers could use a cash basis for tax returns. Mr Shiels said it was also his view that the advantages of a cash basis for tax could be overstated. It made no difference to the amount of tax payable, but potentially deferred tax from one

year to another. A change from cash to accrual accounting would certainly produce a significant one-off adjustment.

If incorporation was going to lead to that, it would need to be weighed up against the advantages that might be possible through incorporation.

Mr Shiels concluded that barristers who were going to incorporate might have good reason to do so promptly. The Inland Revenue Department had been quite aggressive in alleging that business reorganisations were being done for tax avoidance purposes. It would be much harder for the department to argue this if the reorganisation took place as soon as it was legally possible.

N

ew Zealand Bar Association president Jim Farmer QC, also commenting personally, said the notion of a law firm was that it consisted of more than one person. Barristers did not have the power to practise in partnership and it was an arguable point of law as to whether there was power for barristers to incorporate.

He agreed with Mr Shiels that the question of whether a barrister could sue a lay client for fees was critical to the tax situation. Associate Judge Gendall had recently decided that barristers could not sue for their fees.

George Barton QC disagreed with that judgment and took the view that Lai v Chamberlains, abolishing barristerial immunity, enabled barristers to sue for their fees. Dr Farmer said that he disagreed with that opinion.

Dr Farmer queried what benefits there would be for barristers from incorporation, asking whether these would be limited liability and a lower tax rate. However, he said, how would income be got out of the company for personal use? He also said the heart of the issue relating to barristers and incorporation was that barristers were supposed to be people who gave objective and independent advice.

“With incorporation, the company

Continued from p.1

will be the entity giving advice. This doesn’t seem to be consistent with the concept of a barrister.”

ADLS president Andrew Gilchrist said that, from his discussions with barristers, he believed there was a low level of understanding that it would in future be possible for barristers to incorporate.

“Those who have considered it ● Cont. on p.3

NZ Bar Association Official Newsletter EDITOR Catriona MacLennan Telephone: 09 378 0964 Email: catmac@clear.net.nz LAYOUT / DESIGN Graham Wear Telephone: 09 415 9968 Email: wears@clear.net.nz John Slane Telephone: 09 524 5643 Email: j.slane@xtra.co.nz EDITORIAL COMMITTEE Miriam Dean QC Convener Telephone: 09 377 8959 Email: miriam@barrists.co.nz Marian Hinde Telephone: Fax:

09 366 7757 09 303 4566

Jodi Libbey Telephone: 09 309 4690 Email: j.libbey@xtra.co.nz Stephen Kós Telephone: 04 472 9026 Email: jsk@40johnston.co.nz Monique Pearson Telephone: 09 303 4515 Email: nzbar@nzbar.org.nz

N.Z. Bar Association Newsletter. December 2007. Page 2

President’s Christmas message

Bar facing diverse, complex issues A

t my suggestion the full agenda of the Bar Council’s last meeting (on November 29) has been printed in this Newsletter as a means of illustrating how diverse and complex are the issues which the bar now faces and the activities which the Bar Association is increasingly involved in (see p.4). Four of these are worth particular mention: 1.

Regulatory changes to the practice of law – we have continued to work with the New Zealand Law Society in relation to changes to the organisation of the profession and the formulation of new practice

standards. Of particular relevance are the changes that affect the bar directly, including proposals to relax or even abolish the intervention rule by which direct access to barristers by lay clients is prohibited and new regulations relating to the appointment of senior counsel.

2.

Restructuring the way that the Bar Council works – the appointment of four vice-presidents on a regional basis.

3.

Forming links with Bar Associations

in other countries and in particular Australia and taking a greater interest in international events such as the suspension of the rule of law in Pakistan.

4.

The planning and expansion of our conference activities.

Some of you will be fed up with all the debate about the intervention rule.

However, it remains the most important issue currently facing the bar, as the outcome of the debate will determine ● Cont. on p.5

Incorporation possibility for barristers: can’t really see a lot of benefit, though they would be delighted to be proved wrong.”

Mr Gilchrist said the only benefit would be for those on very high incomes, who could leave money in the company, paying tax at the company rate of 33 cents instead of the top personal tax rate of 39 cents. That would mean that the barrister would have an extra six per cent to invest and obtain interest on, although tax would be paid on the extra amount when it was taken out of the company.

“That to me is the only real advantage to it.”

Mr Gilchrist said there were no pluses in relation to protection from being sued. Although there were creditor protection benefits, he did not believe they were a real positive as he was not aware of any barristers facing financial problems.

He said one of his instructing solicitors intended to incorporate and sell his practice to the incorporated law firm. However, that was not an option for barristers as they did not have personal client bases while the intervention rule continued to exist.

Mr Gilchrist said he believed the real advantages of incorporation related to large firms, particularly in respect of income distribution and easier partner entry and exit.

His impression was that solicitors overall were not as keen on the idea of incorporation as they had been initially, and it was mainly large firms that would do it. Accountants obtained more benefits from incorporation than would lawyers, he said.

However, New Zealand Bar Association accountant, Sam Bassett of Markhams Auckland, said he perceived a number of advantages in incorporation.

He said there was scope for transferring

Continued from p.2

an existing practice to a company at value. The company could borrow to fund the purchase, and the interest payments would be tax deductible.

Mr Bassett said a company structure was also useful when negotiating leases as it was a familiar business structure.

Further, companies offered potential income-splitting advantages. He said it was very disappointing that the select committee had not allowed family trust shareholding in the companies, but that was an issue for the future.

Mr Bassett said he expected that a majority of new barristers entering practice after July 1 2008, would choose to incorporate. For those already in practice, it might be perceived that the complications of incorporation outweighed its benefits. For example, there would need to be compliance with the requirements of the Companies Act 1993.

■

N.Z. Bar Association Newsletter. December 2007. Page 3

Location: The Northern Club Date: 29 November 2007 Time: 10.00am – 4.30pm

AGENDA 1

Opening and introduction 1.1 Present 1.2 Apologies 1.3 Co-opting of Council Members 1.4 Appointment of Vice-Presidents 1.5 Appointment of Treasurer 1.6 2008 Council Meetings

2

Minutes of previous meeting

3

Action Items / Matters to discuss

4

Treasurer’s report

5

Executive Director’s report

6

Review of structure

7

NZBA framework – the way ahead (update from the Framework Committee) 7.1 Professional 7.2 Membership 7.3 Marketing

8

NZLS 8.1 Draft Rules of Conduct and Client Care update (C Gudsell) 8.2 Appointment of Senior Counsel (J Farmer)

9

10

NZBA

11

Rules sub-committee 11.1 Report on the Law Commission seminar - for noting 11.2 DC Rules submissions - for noting 11.3 COA (Civil) Amendment Rules submissions for noting 11.4 Minutes of High Court External Agencies meeting - for noting 11.5 Submissions of NZBA on Pre-Trial Appeal process - for noting 11.6 Joint Practice Note on Pre-Trial applications in criminal jury cases - for noting

12

International Bar Associations 12.1 ABA council meeting in Canberra (J Farmer) 12.2 NSW Bar Association visit in October (J Farmer/M Pearson) 12.3 NSW Bench & Bar dinner on 9 May 2008 NZBA representation (J Farmer) 12.4 Annual exchange of attendances at ABA and NZBA council meetings - for discussion 12.5 NZBA involvement in the World Justice project (C Carruthers)

13

Upcoming Events 13.1 NZBA/LRF joint conference update (M Dean) 13.2 NZBA/CBA joint conference update (M WardJohnson) 13.3 2008 NZBA annual conference (M Pearson) 13.4 Auckland new Silks bar dinner - deferred to February 2008 13.5 Court of Appeal conference dinner - 14 March 2008

14

General Business 14.1 Barristers paying for costs 14.2 Barristers’ conduct 14.3 Situation in Pakistan 14.4 Situation in Zimbabwe 14.5 Arbitration Day seminar 14.6 Bay of Plenty Times editorial

15

Next Meeting:

sub-committees

Pupillage and tutelage 9.1 Training model for junior barristers (C Gudsell) 9.2 Mentoring committee meeting update (M Dean) 9.3 Western Australia Bar Association (E Hudson) 9.4 ABA Residential Advocacy Course (J Farmer) Associate membership 10.1 Crown Solicitors 10.2 Barristers and Solicitors 10.3 Overseas Barristers 10.4 Judges’ Clerks

To be advised

N.Z. Bar Association Newsletter. December 2007. Page 4

Continued from page 3

Bar facing diverse, complex issues how we practise in the future and how we are perceived as barristers. As you know, the poll that was conducted of the bar some years ago indicated an almost 50-50 split between those who want to retain the rule (perhaps with some modification) and those who want to see it go altogether and who would wish the public to have unrestricted direct access to barristers.

I

t was interesting to learn of the experiences of the Australian states, which Terry Sissons and I did when we attended a meeting of the Australian Bar Association Council on December 2 in Canberra. In most of the states, including NSW, direct access under certain conditions including fee disclosures is now permitted. Not unexpectedly, the sectors of the bar that have taken advantage of this are the criminal bar and, to a lesser extent, the family bar. A consequence has been a considerable increase in the complaints that are made against barristers related to these direct access cases.

The appointment of four vicepresidents – Miriam Dean QC in Auckland, Chris Gudsell QC in Hamilton, Colin Carruthers QC in Wellington and Jonathon Eaton in Christchurch – follows an amendment to the constitution last August. The idea is two-fold: first, to share the leadership role with the president and, secondly, to provide an impetus for more local activities.

The Association is often criticised for being Auckland-dominated (though the constitution provides for proportional regional representation) and for being a remote national body. I see this as a partial answer to those criticisms and the hope is that there will be more local bar activity that will be generated by the appointment of the V-Ps. As just mentioned, Terry Sissons and I attended the ABA Council meeting in Canberra. This was the result of an

invitation from the ABA and followed initiatives by Glenn Martin SC and Stephen Estcourt QC, past and present presidents of the ABA, and by Michael Slattery QC, president of the NSW Bar Association, all of whom visited us in New Zealand expressing a desire that we develop closer relations.

There is no doubt that we have much to learn from Australia. They have faced all of the problems and issues that we are currently facing and have come up with solutions, some working well and others perhaps not so well. With this in mind but also because we do wish to try new things, the Council has decided to have our annual conference for 2008 in Sydney. The date has been set for the weekend of August 15-17, so put this in your diaries now.

Also on the conference front, we are conducting a joint conference with the Legal Research Foundation on February 22 2008 in Auckland on the subject of civil litigation. This has attracted top speakers from overseas and will examine the fundamentals of civil litigation and whether the judicial system is performing well. There will be opportunity to express views from the floor and your enrolment is encouraged.

I

would like to finish on a note that bears thinking about. At the ABA meeting, the development was noted that, particularly with the introduction of compulsory mediation into court processes, law firms were using the bar less and less, both in relation to the institution of proceedings including the settling of pleadings and in relation to the conduct of interlocutories, in the expectation that the case would be settled at mediation. This was, however, leading to a situation where, if mediation was unsuccessful, the proceedings were not ready for trial and a review of the legal underpinnings of the case was

having to be undertaken at a late stage when such review would not normally be appropriate.

I am pleased to wish all members a Happy Christmas and prosperous New Year and to do so against a backdrop of another successful year for the Association. Special thanks to our executive director, Monique Pearson, for completing a first year of great achievement and a welcome to her part-time assistant Kate McDermond (herself a qualified lawyer).

Jim Farmer President

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Next Newsletter publication date: March 2008

N.Z. Bar Association Newsletter. December 2007. Page 5

NZ Bar Association Council member TERRY SISSONS reports on the Australian Bar Association meeting he attended this month with the NZBA president, Jim Farmer QC

ABA welcomes closer ties with NZBA W

e attended the meeting at the invitation of the ABA president for the purpose of developing closer ties to the bar in Australia.

Each state is represented on the ABA by its president, chairman or a nominee. Tom Bathurst QC (NSW) was elected president, Peter Riordan SC (Victoria) vice president, Hugh Fraser QC (Queensland) treasurer and Dan O’Connor (Queensland) hon. secretary.

The topics discussed included: ♦ A review of the association’s investment position and a comparison with its benchmark allocation of investments; ♦ The residential advocacy training course to be held at Macquarie University NSW in January 2008; ♦ The election of two life members, Murray Gleeson CJ and Glenn Martin J, who both have a long association with the ABA; ♦ Planning the annual conference to be held in 2009 in London and Strasbourg; ♦ The World Bar conference to be held in Dublin and Belfast in June/ July 2008 (a New Zealand speaker will be sought for this conference); ♦ The policy on counsel speaking to the media, which is to be reviewed by the Law Council and the ABA; ♦ The Australian National Mediator Accreditation Scheme. The Council resolved to apply to become a recognised mediator accrediting body; ♦ Challenges facing the bar, including

large firms holding onto cases until the last minute, having prepared all the pleadings and attended the mediations required by the court.

Large firms increasingly offer a full service which excludes a role for the bar; ♦ Model rules of practice for barristers.

Revised rules are expected by mid2008; ♦ The treatment of judges and lawyers in Pakistan. The Council resolved to issue a statement following the lead of the New South Wales Bar and the Australian Law Council; ♦ Updating the ABA website to include requirements for appearing in different states, including robing requirements which can be quite tricky; and ♦ Revised minimum standards for PI insurance. NSW has approved a limited liability scheme based on minimum standards and Queensland and Victoria are working on a similar scheme.

Direct access reports Direct access to the ACT bar is available only in Family Court collaborative justice cases and is being considered for other alternative dispute resolution matters.

New South Wales allows direct access in three instances - instructions from corporate counsel; instructions from accounting firms which are often received in the name of corporate counsel; and more general direct access from members of the public. The first two do not provide any problems but the more general direct access leads to numerous complaints and problems

over matters such as competence and costs disclosure.

In Victoria the question of direct access is being considered in the course of preparing the Bar Association’s strategic review. The bar does not have a unanimous view on the merits of direct access.

Queensland has the same system of direct access as NSW but court rules do not make direct access easy. They do not allow barristers to carry out traditional solicitors’ work. Proceedings are issued in the name of the client and various other steps have to be completed by the client. A practice direction requires counsel to certify that the process has been explained fully to the client. There is often a breakdown in communications and tasks the clients are supposed to have undertaken do not get done. Queensland also experiences a disproportionate number of complaints from direct access cases which normally occur in criminal, family and small civil jurisdictions.

South Australia does not permit direct access.

The Federal Court has a pro bono scheme allowing direct access but these cases are generally assigned to experienced barristers and no problems have arisen. New South Wales and Victoria have duty barrister and pro bono schemes which provide experience to junior barristers. These have operated well.

State reports Following controversy arising out of the recent silks appointment round in Victoria, some disappointed individuals ● Cont. on p.7

N.Z. Bar Association Newsletter. December 2007. Page 6

End of a busy, exciting year A

s this is my last column for the year, I will not linger long. It has been a very busy and exciting year. Junior barrister initiatives are flying fast and furious. We have mentoring guidelines all ready to go and we are hopeful that the mentoring scheme will be launched early in the New Year.

The training sub-committee (focussing on a model for training new barristers) is working hard on coming up with a coherent approach to

Junior Barristers training junior barristers as they begin their career at the independent bar.

Next year we will be holding a Wellington junior barrister function during February.

There is also the joint LRF-NZBA conference entitled “Civil litigation in

Crisis – What Crisis?” which is being held on February 22 at the Stamford Plaza Hotel in Auckland. I would encourage all juniors to attend as it will be an excellent and thought-provoking conference. Details can be accessed on the NZBA website.

That’s it from me for 2007. Merry Christmas and Happy New Year.

Lauren Lindsay

ABA welcomes closer ties: have sought consultation and review.

The Chief Justice says he would not participate in the appointment process if it was subject to review.

In Tasmania most advocacy is carried out by solicitors and firms. The very small independent bar (about 18 members) has encountered a problem in maintaining standards without having the resources to run a readers’ course.

It now has the power to issue practising certificates and may make it a condition that members undertake a readers’ course run by another state.

provision for the president to speak to disappointed candidates.

In NSW two judicial appointments were recently made to the Federal Court without any consultation with the bar. There was only one complaint about protocol arising out of the recent silks appointment. The president spends time with disappointed applicants.

Continued from Page 6

In ACT there was one successful applicant for silk out of four applications.

There are 48 barristers and the Bar Council and judiciary try to keep the number of silks in proportion — currently six. The Bar Council decides who is entitled to take out a practising certificate, printed and issued by the Law Society.

■

Issues raised by South Australia were lack of consultation by the Attorney-General on the appointment of silks; no State Law Reform Commission; very little funding available for legal aid; and the possibility of setting up a pro bono scheme.

In Western Australia a new Bar Council is employing a full-time executive assistant. Five new silks have been appointed and a new Legal Professions Bill is likely to be passed by 1 July 2008.

Three new silks have been appointed in Queensland. A redrafted protocol for silk appointments includes a

At the ABA council meeting, ACT executive director Svetlana Todoroski and ACT president George Brzostowski SC. N.Z. Bar Association Newsletter. December 2007. Page 7

The thorny issue of remedies A

topical conference on the thorny issue of remedies was held at the University of Auckland in November.

The Second International Symposium on the Law of Remedies was jointly organised by the University of Auckland and Canadian University of Windsor and was titled Advancing the Common Law of Remedies: Praxis and Pedagogy Throughout the Commonwealth. Issues discussed included assessing lost opportunities and other interests in quantifying loss, assessing ephemeral and other nonpecuniary losses, situations in which compensation was not adequate, and the globalization of litigation.

Human Dignity Cases Court of Appeal judge, Justice Grant Hammond told the symposium that judges might well be required to “get their hands dirty” to provide satisfactory remedies in cases involving breaches of human dignity Justice Hammond discussed how the law was to assess monetary compensation for breaches of the human dignity interest if, and when, a court was empowered to award such a remedy. He traced the legal system’s growing recognition of human dignity to the horrors of fascism and Nazism

during World War II, which resulted in legal and political commentary turning to the term “dignity” to identify rights of personhood. Both the United Nations Charter and the Universal Declaration of Human Rights proclaimed the dignity

rights or applications. But as with (say) the general concept of negligence, the concept does not involve a closed list and generates more applications over time and with better appreciation and articulation, in a context-specific way.”

International symposium

Justice Hammond said that human dignity was now a well-established legal norm, to which the courts were required to give effect. “But this is an area of the law where the relationship between right and remedy is more than usually important. The law of remedies is therefore faced with the important, if difficult, burden of awarding remedies (including compensation) which will give proper context to the norm itself.”

of humans, and the concept had also migrated into modern Bill of Rights’ texts and other quasi-constitutional documents. It had also had increasing influence in domestic law.

However, Justice Hammond said that there were very real differences across – as well as within – particular domestic jurisdictions. Some people saw human dignity as simply another way of expressing a general idea of human rights, while others saw it as a stand-alone value.

“In this thicker role, the functional role of dignity is primarily to help in the identification of a catalogue of specific

He suggested that the supposed moral and functional superiority of universalistic approaches over particularistic approaches was likely to be “wrong-headed.” “Judges may well have to get their hands dirty, by hard graft: either we overtly break human dignity down into more redressible components and address them systematically, or we will have to build up dignity attributes and awards slowly ● Cont. on p.9

NZ Bar Association 2007–2008 Council — Contact details Ph: 09 358 7090 Fx: 09 358 7091 P O Box 1800 Auckland

Jonathan Eaton Ph: 03 372 3466 j.eaton@bridgesidechambers.co.nz Fx: 03 365 2592 P O Box 13-868 Christchurch

Stephen Mills QC

David Bigio david@bigio.co.nz

Ph: (09) 309 1988 Fx: (09) 309 1987 P O Box 2133 Auckland

Christopher Gudsell QC ctgudsell@xtra.co.nz

Ph: 07 839 3290 Fx: 07 834 0587 P O Box 19085 Hamilton

Trevor Shiels

Colin Carruthers QC crc@crcarruthers.co.nz

Ph: 04 471 4275 Fx: 04 471 1195 P O Box 305 Wellington

Elliot Hudson elliothudson@xtra.co.nz

Ph: 07 839 6644 Fx: 07 838 9319 P O Box 19252 Hamilton

Kate Davenport kate@katedavenport.co.nz

Ph: 09 307 8787 Fx: 09 307 8788 P O Box 141 Auckland

Tony Hughes-Johnson QC achj@xtra.co.nz

Ph: 03 365 2158 Fx: 03 365 7273 P O Box 286 Christchurch

Miriam Dean QC miriam@barrists.co.nz

Ph: 09 377 8959 Fx: 09 377 8960 P O Box 4111 Auckland

Ken Johnston k-johnston@clear.net.nz

Ph: 04 471 2727 Fx: 04 499 4620 P O Box 5058 Wellington

President James Farmer QC jamesfarmer@queenscounsel.co.nz

Ph: 09 307 9820

stephen.mills@shortlandchambers.co.nz Fx: 09 307 1572

P O Box 4338 Auckland trevor.shiels@barristerschambers.co.nz

Terry Sissons terry.sissons@xtra.co.nz

Ph: 03 477 4030 Fx: 03 477 7320 P O Box 1219 Dunedin Ph: 04 471 1380 Fx: 04 499 8795 P O Box 23063 Wellington

Matthew Ward-Johnson Ph: (07) 579 0408 ward-johnson@tgachambers.co.nz Fx: (07) 579 0404 P O Box 13561 Tauranga Junior Barristers Representative Ph: 09 307 8771 Lauren Lindsay Fx: 09 307 8772 Lauren@laurenlindsay.co.nz P O Box 770 Shortland St Auckland

N.Z. Bar Association Newsletter. December 2007. Page 8

NZBA condemns actions of Pakistani regime The New Zealand Bar Association has joined the International Bar Association, the New Zealand Law Society and other law societies and bar associations worldwide in condemning the apparent collapse of the rule of law in Pakistan.

Mr Jim Farmer QC recently reported that steps taken by Pakistan’s President, Musharraf, involving the suspension of the country’s constitution, and the imposition of emergency rule, amounted

to a direct attack on the fundamental human rights guaranteed by the rule of law in democratic societies.

“The New Zealand Bar Association is gravely concerned by reports that legitimate protest action, including such action by Pakistan’s judges and lawyers, has been met with the use of violence

by Pakistani authorities involving the use of tear gas and batons,” Mr Farmer said. “An independent judiciary and legal profession is fundamental to the

maintenance of democracy, and mere political expediency can never justify the actions of the Pakistani regime as reported in the International media.”

Like the International Bar Association, the New Zealand Bar Association is concerned that unless Pakistan’s constitution is restored, there will be further deterioration of the situation leading to a more entrenched abrogation of democratic principles and abuses of human rights.

Continued from page 8

The thorny issue of remedies

and incrementally, in the time-honoured fashion of the common law.”

Justice Hammond reviewed six possible approaches to assessing compensation for dignity breaches.

These were the following: ♦

No judicial compensation (placing heavy reliance on declaratory and coercive remedies instead;

♦

Corrective justice (placing aggrieved parties in their original position);

♦

Economic models (setting damages at an appropriate level to deter misconduct);

♦

Distributive justice equality for all);

♦

Vindication models (dignity cases were regarded as significantly different from purely private law remedies and awards “marked out” offending behaviour and discouraged future breaches); and

♦

(substantive

Conventionalism (awards within a known range).

Justice Hammond said that there were weaknesses in respect of all of these models. He went on to consider in detail four cases in which the courts had dealt with human dignity interests, stating that one of the real difficulties in the way of corrective justice was that compensation necessarily turned on what the courts were supposed to be compensating for.

“What this might suggest is the need to get deeper into the substantive content of human dignity, and to inquire whether there are features of our humanity which are lost or detracted from, if dignity is infringed, and to then address those factors distinctly. This in turn might suggest that we need to break out dignity into more manageable bites, which may attract different responses. Dignity then becomes a starting point, not an end point, and one which is simply too large for necessary legal reductionism.”

Justice Hammond discussed American Professor Martha Nussbaum’s book, Frontiers of Justice, in which a capabilities approach was adopted. Professor Nussbaum had devised a list of 10 central

human capabilities – such as life, bodily integrity and practical reason – without which it was argued that a life was not a life worthy of human dignity. Failure to secure fundamental entitlements to citizens was a particularly grave violation of justice. However, Justice Hammond said that a key problem with such an approach would be the problem of the relative value to be attributed to each human capability. Any “high road” approach to monetary awards for breaches of dignity would require what amounted to a systems approach.

“A court would have to say, presumably in outline, what scheme it is pursuing before addressing the particular subset of the dignity norm for which compensation is being awarded, and how that is to be assessed.”

Justice Hammond said such an approach would represent an enormous endeavour, even for a final appellate court, with initial decisions perhaps having a disproportionate impact.

However, a start had to be made ● Cont. on p.10

N.Z. Bar Association Newsletter. December 2007. Page 9

Continued from page 9

The thorny issue of remedies

somewhere, and the readiness of courts in the western world to look to one another for guidance was encouraging.

Expectation damages Victoria University of Wellington Professor of Law, David McLauchlan, discussed issues relating to the assessment of expectation damages. He examined four recent cases, including the important decision of the House of Lords in Golden Strait Corporation v Nippon Yusen Kubishika Kaisha [2007] 2 WLR 691, to isolate the issues affecting the quantification of damages for breach of contract.

Professor McLauchlan noted that the compensatory principle was described in Golden Strait as the governing principle in contract. However, he said that its implementation often provoked major judicial disagreement, because of difficulties relating to actual quantification. He stressed the importance of the preliminary steps of identifying the content of the contractual obligation breached and accurately categorising the losses in respect of which damages were claimed.

He said that difficulties, and in particular the danger of double recovery, could best be avoided by adhering to the letter of the Robinson v Harman (1848) 1 Ex 850 principle.

This involved computing separately the plaintiff’s actual position and its promised position, and awarding the difference between the two.

In taking account of apparent offsetting gains made by the plaintiff as a compensating advantage, Professor McLauchlan said that the current law was in a dreadful muddle. He suggested a general principle that could be applied in such cases. This was that a benefit accruing to the plaintiff ought to be taken into account as an offsetting gain that reduced damages if:

a) it was received as a result of entry into the transaction in respect of which damages were claimed, and it would likely not have been received but for the breach, or b) it was a direct result of a dealing with the subject matter of the contract or action taken to avoid the consequences of the breach.

Professor McLauchlan said that, when these requirements were satisfied, the benefit was not a disconnected or independent benefit. “Given that the court seeks to ensure that the plaintiff is not put in a better position than if the contract had been performed, the touchstone should always be whether it can fairly be said that all or part of

Canadian court taking stronger line against inappropriate behaviour the loss in respect of which damages are claimed has either not been suffered or has been avoided or is offset by a gain made.”

Mandatory sanctions bad behaviour

for

Ontario Court of Appeal judge, Justice Robert Sharpe, discussed the recent phenomenon of awarding contract remedies to sanction bad behaviour in Canadian law. He said that there was an increasing tendency for Canadian courts to do this rather than compensating for the loss of the plaintiff’s economic expectation interest.

“Without explicitly abandoning the traditional rules, courts seem prepared to make damages awards that are motivated by a desire to impose a judicial

code of good commercial conduct.

Canadian courts are increasingly willing to award fiduciary damages explicitly based on the moral quality of the wrong and aimed at discouraging or deterring inappropriate behaviour.”

Justice Sharpe said that the Supreme Court of Canada had opened the door to registering strong disapproval of the wrongful conduct of employers.

Restitutionary damages were no longer excluded as a possibility for breach of contract. Another influence had been the fact that procedural reforms had unleashed class actions as potent judicial weapons to regulate conduct in the commercial sphere. Punitive damages, once exceptional in all areas of the law, were now encountered more frequently even in the commercial setting.

However, Justice Sharpe concluded that damages awards that departed from the classic model nevertheless remained the exception rather than the rule. He said that it would be wrong to exaggerate the significance of the developments. “We find judges responding to what are perceived to be exceptional cases with what they describe as exceptional remedies. In most cases, damage awards dictated by the classic model are ordered with little ado or debate.”

The exceptional awards were, he said, made in situations in which a breach of contract was combined with some other factor, such as a breach of trust, quasi-proprietary interests in employment or information, or the failure of effective regulation over large corporate or commercial concerns.

“By providing these remedies to reflect these concerns, courts have implicitly recognised the limitations of the traditional approach to the assessment of damages in commercial cases, but they have not declared war on the classic model, which remains largely intact.”

■

N.Z. Bar Association Newsletter. December 2007. Page 10

BAR CHAT Appointment of new judge of the High Court to sit in Wellington The Bar Association offers its warmest congratulations to Robert Dobson QC on having been appointed a judge of the High Court. Robert Dobson has been a leading barrister and Queen’s Counsel for a considerable time. He served for many years as a member of the Council of the New Zealand Bar Association and was its president from 2002 to 2004.

Appointment of new chairman of ICANN Congratulations to Peter Dengate-Thrush who was elected unanimously as the new chairman of the board of the Internet Corporation for Assigned Names and Numbers. The Bar Association wishes Peter well as he begins this new phase of a career already marked with accomplishment. Peter has been involved in ICANN since its inception.

Thank you The Council would like to acknowledge its appreciation of those members of the Association who have assisted it this past year in preparing submissions to the Rules Committee and other similar bodies on various proposed rules and regulations. In particular, the Council acknowledges the assistance of the following members on the following topics: Mary Peters/Phillip Skelton – Class Actions : Submissions to the Rules Committee Peter Gorringe/Grant Wilkin/David O’Neill – Proposed District Court Rules : Submissions to the Rules Committee

New Bar Association members The Bar Association welcomes the following new members to the independent bar and/or the Bar Association AUCKLAND Tracy Chubb

WAIKATO/BOP

Tanya Thomson

Philip Lang Trever Leigh

Peter Fuiava Richard Potter Fiona Patterson

WELLINGTON

Peter Castle Wendy Aldred

John Brown Mark Benvie Teresa Walker

CHRISTCHURCH Justice John Fogarty Jane Borthwick

Spy Corner Observed at the Auckland Town Hall on November 28 intently listening to John Banks, Mayor of Auckland, addressing a New Zealand citizenship ceremony – Colin Carruthers QC and Alan Galbraith QC. Is this a move towards political correctness by our senior bar?

Jim Farmer proudly displays the 2007 winning trophy for the Keel and Offshore Racing Championship N.Z. Bar Association Newsletter. December 2007. Page 11

Member Benefits Portfolio Did you know that the New Zealand Bar Association has access to many great offers including discounts from specified suppliers for a range of products and services? The Association’s Member Benefits Portfolio includes a number of products and services that are available to members of the Association and in some cases extend to family and support staff. The Council has carefully selected third party organisations which understand how barristers and chambers work. These organisations have been awarded supplier status.

Members will shortly receive a print copy of the Member Benefits Portfolio listing details of the benefits and discounts and also the contact details of each supplier. In the meantime, however, if you have a query or wish to find out more about a particular product and/or service, please contact the Executive Director at nzbar@nzbar.org.nz.

These benefits extend to: Accounting Services

Accountants and business advisers. First ½ hour consultation free plus a 10% discount off the first year’s accountancy fee.

Discovery Services

For fast, efficient and effective support service to help manage your discovery. 10% discount on all discovery services for Association members.

Filing Systems

Transform your filing system. Free filing consultation for members.

Fuel Card

Enjoy 4 cents per litre discount off the pump price (petrol & diesel). Additional cards available to staff and family.

Glengarry

Log on to the Association’s website to receive a Glengarry discount card and significant discounts. Available to family and staff of Association members.

Koru Club

Qualify for corporate rates.

Legal Publications

Negotiated discounts on legal publications.

Mobile Plan and Phones

Members can join the NZBA Plan and keep their number plus get an account credit.

Significant monthly savings. Available to family and staff of NZBA Members.

Office Copiers

Negotiated discounts on digital copiers/printers/fax machines.

Office Stationery

Never pay retail again! Discounts range from 10%-50% off the list price on commonly purchased office supplies.

Personal Insurance

A comprehensive but manageable insurance scheme to protect your home, contents, income, life and health with a single ‘tick box’ insurance programme.

Practice Management Software

One easy to use solution which can be tailored to barristers’ individual needs. Includes case management, financial management and integrated partner email.

Printing and copying

15% - 20% off standard copying and printing price lists.

Professional Indemnity Insurance

Professional indemnity insurance for members.

Property

For all your property requirements.

Telephone Call Rates

Direct savings on your land line call rates.

Telephone Conferencing Rates

Telephone conferencing call rate discounts.

Vehicle Rental Rates

Corporate rates for your vehicle rental.

N.Z. Bar Association Newsletter. December 2007. Page 12

NZBA drinks function

Auckland members of the Association celebrated some early Christmas cheer at an informal gathering held at the Wine Chambers on Thursday, November 29. The occasion marked the first anniversary of the Association’s full-time executive director, Monique Pearson, and also to welcome Kate McDermond as the Association’s new part-time administrator. Photographed from left to right: Back Row: David Bigio, Phil Rice, Mark Colthart, Brett Harris, Kate McDermond, Philip Rzepecky, Monique Pearson, Gillian Coumbe Front Row: Robyn Kaisenberg, Mary Peters, Jim Farmer QC, Monique Pearson, Liz Sinclair, Gary Gotlieb, Kate Davenport

Mentoring programme will give valuable support and guidance The Council is pleased to announce that it will be launching next year a mentoring programme to assist junior members in their professional development. It will provide an opportunity for these members to receive valuable support and guidance from more experienced members of the Association.

The scheme has been devised by a committee comprising Miriam Dean QC (convener); Kate Davenport; Lauren Lindsay; Ken Johnston and Monique Pearson.

Full details of the programme will be available in the New Year.

New Zealand Bar Association Merchandise The Association has produced a branded executive compendium which is now for sale to Association members at a cost of NZ$6000. This cost includes GST, postage and packaging.

The compendium is manufactured in black soft grain koskin and includes a pen and lined writing pad.

Members wishing to purchase a branded compendium may do so by emailing the Association at nzbar@nzbar.org.nz or downloading the purchase form from the Association’s website www.nzbar.org.nz.

Please direct your order and payment of NZ$60-00 to: The Executive Director New Zealand Bar Association P O Box 631 Shortland Street Auckland 1140 N.Z. Bar Association Newsletter. December 2007. Page 13

New Zealand Bar Association Council

Summary of meeting minutes The Council met on Thursday September 27, 2007 at the Hamilton Club.

The Council expressed a special vote of thanks to Stuart Grieve, Bruce Gray and Matthew Ward-Johnson for their valuable contributions during their time on the Council and welcomed Elliot Hudson as a new Council Member.

In the absence of Trevor Shiels, Monique Pearson spoke to the financial accounts. Twenty full members have joined the Association during the period July 19 to September 25, 2007 bringing the recorded total membership to 778 (621 full, 92 associate, 56 judicial, 9 honorary).

A real estate company offering a comprehensive selection of residential and commercial properties from around New Zealand has approached the Bar Association to be included in the Member Benefits Portfolio. Members who are interested in searching for property and/or receiving advice on rent reviews will have available to them a dedicated account manager.

Final arrangements are being made to enable members to register online for a Glengarry card. It is envisaged that the Glengarry link will be displayed on the Association’s website. Members will be entitled to up to 17.5% off a selection of products.

The meeting discussed the matter of administrative resources required by the Executive Director. The Council agreed that there was sufficient administration to employ a part-time assistant. Michael Ring QC has generously offered the Association the use of the MGP Chambers’ reception workstation.

A Barrister Training Sub-committee

was formed comprising Jim Farmer QC, Chris Gudsell QC, Terry Sissons, Lauren Lindsay and Monique Pearson to concentrate on an appropriate model for training of junior barristers in New Zealand. A report is to be provided to the Council at the next meeting.

Lauren Lindsay reported that Peter Gorringe, David O’Neill and Grant Wilkin had volunteered to assist the Rules Sub-committee with submissions on the proposed District Court Rules 2007. The Council recorded its appreciation to the members for their support.

A Framework Committee was formed consisting of Jim Farmer, Chris Gudsell, Terry Sissons, Lauren Lindsay and Elliot Hudson.The committee would centre on the future of the Association and how best it could represent its members.

In the absence of Miriam Dean QC, Monique Pearson spoke to the minutes of the Mentoring Scheme Committee meeting. Guidelines for the programme were discussed. The final programme would be presented at the next meeting.

The Council agreed to an annual exchange of attendances at Australian Bar Association and NZBA Council meetings. Monique Pearson to liaise with her ABA counterpart to facilitate the necessary arrangements.

Jim Farmer reported to the meeting that he and Monique Pearson had been invited to the NSW Bar Association.

Jim Farmer had been asked to formally address the local bar on international practice covering issues such as the legal and practical obstacles to admission and types of work that are realistically attainable. Monique Pearson was invited

to meet with the Executive Director.

The Council viewed this as a great opportunity.

Conferences (the joint conference with the Legal Research Foundation) and the possibility of a conference with the Criminal Bar Association were discussed.

Minutes of the High Court External Agencies meeting of August 8 were reviewed and noted.

The NZLS Board/Council Meeting programme of September 20-21 were reviewed and noted.

Jim Farmer referred to a paper entitled Specialisation and Best Practices in IP Litigation which had been circulated to Council members. After a general discussion the Council agreed that they were interested in looking further into this matter.

Details of the new silks dinner are almost finalised. Invitations will be sent out to all members before the end of the year.

The meeting discussed the following other 2008 events: ●

COA conference and dinner: March 14 (Wellington Club)

●

Bench and bar dinner : May

●

Junior barrister events: Wellington (February);Christchurch (July); Auckland (October)

●

Annual conference: August — The meeting discussed the possibility of hosting the conference off-shore. (It has now been decided that the conference will be held in Sydney on August 15-17.)

N.Z. Bar Association Newsletter. December 2007. Page 14

THE PERMANENT COURT OF APPEAL: A celebration of fifty years (1958 – 2008)

This is a reminder of the conference which is being organised by the Legal Research Foundation to be held in Parliament Buildings,Wellington on 14 March 2008 to celebrate the 50th anniversary of the New Zealand Court of Appeal. It is an important milestone in the ongoing development of New Zealand law and should not pass without the chance for reflection on the changing work and achievements of the court.

An impressive array of speakers will reflect on the work of the permanent Court of Appeal over this period in their areas of expertise – Professor Richard Boast (indigenous rights), Professor Emeritus Jim Evans (precedent), Professors Mark Henaghan and Nicola Peart (relationship property), Professor Tony Smith (criminal law), Professor Mike Taggart (administrative law), Professor Stephen Todd (accident compensation and tort law) and Professor Peter Watts and Dr Julie Maxton (equity in commercial dealings). The Right Honourable Sir Ivor Richardson will also, as something of an “insider”, deliver a paper on the development and achievements of the court.

It is expected that a good number of present and past Court of Appeal judges will be present. Undoubtedly, it will be especially informative and interesting to have comments and insights from present Court of Appeal judges on the areas of work which will be the subject of the one day conference.The conference is being followed a dinner organised by the New Zealand Bar Association and the New Zealand Law Society at the Wellington Club.

To register for the conference or obtain further information on it, visit www.legalresearch.org.nz or contact Barbara Relph of the Legal Research Foundation on info@legalresearch.org.nz.

As a Barrister you will soon be able to incorporate ...

Barristers will be able to incorporate when the Lawyers and Conveyancers Act comes into force. This is scheduled for 1 July 2008.

We act for a significant number of barristers as well as the NZ Bar Association. As a Chartered Accountancy firm we have ourselves gone through the transition from a partnership to an incorporated firm.

We can assist with: ● New set-up as an incorporated Barrister ● Valuation of existing business ● New remuneration structure with dividends and salaries. ● Accounting and general taxation compliance.

Please contact: Sam Bassett – sam.bassett@markhams-akl.co.nz DDI: 09 306 7103 Or Geoff Hatten – geoff.hatten@markhams-akl.co.nz DDI: 09 306 7101 Markhams MRI Auckland Level 10, Q & V Building, 203 Queen Street P O Box 2194, Auckland www.markhamsmri.co.nz

Register online through the Association’s website to receive your Glengarry Card and receive the following benefits on selected products: ● Wine: Up to 17.5% discount ● Beer: 10% discount ● Spirits: Various discounts Additional benefits include: ● Same day free delivery ● Exclusive weekly corporate offers ● Secure online shopping including account maintenance ● Dedicated account manager ● Weekly in-store tastings N.Z. Bar Association Newsletter. December 2007. Page 15

New Zealand Bar Association and Legal Research Foundation Joint Conference

CIVIL LITIGATION IN CRISIS – WHAT CRISIS? The New Zealand Bar Association, together with the Legal Research Foundation, is holding a conference in February 2008 on a topical and timely theme : “Civil Litigation in Crisis – What Crisis?”

Apart from its annual conference for members, this is the first time the Association has been involved in organising a conference to a wider audience.The theme is particularly relevant to those at the bar who have a civil litigation practice.

Confirmed speakers include: ●

●

●

Sir Gavin Lightman, retired High Court judge, (England and Wales) – who has had some provocative comments to make on the adversarial system and whether it is suited to deliver justice in a timely and inexpensive way.

The Honourable Justice Hansen – who delivered the F.W. Guest Memorial Lecture for 2006 on the issue of “Court Administration, the Judiciary and the Efficient Delivery of Justice : A Personal View”.

The Honourable Justice McColl, judge of the Court of Appeal of Australia

Other judges and senior practitioners involved include Jim Farmer QC, Robert Fisher QC and the Honourable Justice Chambers.Also, the conference organisers are particularly pleased that a consumer’s perspective will be given by Grant and Marilyn Nelson who, as a result of their five year litigation experience, have endowed $1m to the University of Otago to establish a Legal Issues Centre.

Jim Farmer QC, president of the New Zealand Bar Association, urges all members of the independent bar practising in the civil courts to attend this conference: “Barristers need to be up with the current thinking of those who interest themselves in reforming civil processes — for better or for worse — and contribute to the debate if they have a concern about the conditions under which they run cases”.

Similarly, Justice Raynor Asher, as president of the Legal Research Foundation, notes: “The adversarial system and the procedures that underpin it are coming under increasing pressure. Some change, perhaps in due course substantial change, will occur. This seminar offers practitioners an opportunity to participate in the debate in a ground breaking seminar, where the issues will be for the first time fully debated and developed in a New Zealand context”.

As Justice Hansen said in his memorial lecture, the current problem with the civil (and criminal) litigation processes is “too serious to be flippant about. Many techniques have been attempted to reduce delay, and although the system is much more efficient than the days of Jarndyce v Jarndyce it is still far from satisfactory.” Attempts at reform to date, as His Honour says, “have essentially been designed to refine our existing system”.The time has come to consider whether “we cling to our system, self-righteously and self-satisfied that it is the best in the world,”or, whether we “at least question our system, and to debate whether there is a better one”. This will be the theme of this conference – whether there is, indeed, a better way forward. It is an opportunity to consider, not only from the lawyer’s perspective, but also his/her clients’ what we are entitled to expect from the court system.

The conference will be held at Stamford Plaza in Auckland, on Friday February 22, 2008.

To register for this full-day conference please send an email with your details to: info@legalresearch.org.nz or phone Barbara Relph at (09) 309-9540 and an invoice will be sent to you.

N.Z. Bar Association Newsletter. December 2007. Page 16

INTERNATIONAL CONFERENCES International Advocacy Teachers’ Conference 2 – 4 January 2008 The second International Advocacy Teachers’ Conference to be convened by the Australian Advocacy Institute will be held in January 2008 at the Monash University Campus in the historic city of Prato in Tuscany, Italy.

The institute invites all involved in advocacy teaching to attend.

This will be a forum where future directions of advocacy teaching in all jurisdictions will be examined and discussed, with a view to bringing together teaching approaches from a variety of sources. Select speakers from Australian and international advocacy bodies will examine the changing role of the advocacy teacher. It will not be just a comparison of what is done now... the conference will encourage a frank discussion on the future and how all advocacy teachers can adapt to meet head-on the challenges of teaching in the 21st century.

Relevant details can be found at www.advocacy.com.au.

Australian Bar Association Residential Advocacy Course 21 – 25 January 2008 The ABA Residential Advocacy Course (to be held in conjunction with The New South Wales Bar Association) is based on the demanding intensive advocacy training offered each year by the South Eastern Circuit Bar at Kebel College, Oxford.

The first such course was held at the University of Western Australia, Perth in January 2007 and was a great success.

Twenty barristers from around the country attended and were coached by senior members of the bar from the United Kingdom, New South Wales,Victoria, Queensland, South Australia, Western Australia and Tasmania.

The second course is being held from 21-25 January 2008 at the Macquarie Graduate School of Management (MGSM), North Ryde.

For more information pleas visit the ABA website http://austbar.asn.au

Bar Association of Queensland 15 – 17 February 2008 The Bar Association of Queensland will hold its annual conference at the Sheraton Mirage, Gold Coast in February 2008. The programme has been designed to provide an outstanding conference of presentation to assist barristers with their continuing professional development needs.

Sessions will be delivered from distinguished presenters: The Hon Chief Justice Doyle AC, Supreme Court of South Australia, The Hon Justice May, Family Court of Australia and Dr David Bennett AO QC on “Sinful Advocacy”. There will be several ethics and practice management sessions including a hypothetical debate facilitated by The Hon Justice Glenn Martin on the theme “Talking to the media”. Another topical session will be on acting for the government in criminal and civil jurisdictions – expectations and ethical obligations.

Download a registration form at www.qldbar.asn.au

World Bar Conference 27 – 30 June 2008 The International Council of Advocates and Barristers is holding its 2008 World conference in Dublin and Belfast from 27 - 30 June 2008. The object of the Council includes the promotion and maintenance of the rule of law and the effective administration of justice – its focus falls on matters particularly important to the bar worldwide including the New Zealand bar.

Many eminent speakers will be addressing attendees, including the President of Ireland, Mary McAleese; Robert Fisk, Middle East correspondent, Independent Newspapers UK; Paul Gallagher SC, Attorney General of Ireland; Justice Ruth McColl, judge of the New South Wales Court of Appeal; Ms Beatrice Mtetwa, president of the Zimbabwe Law Society; and John Cooke, judge of the European Court of First Instance, to name only a few of the speakers.

It promises to be an exciting conference and members can obtain information — or register and pay on line for the conference — at www.worldbaronline.com N.Z. Bar Association Newsletter. December 2007. Page 17

Insurance Matters The Association’s exclusive insurance programme Balance, provided by Crombie Lockwood, has recently introduced specialist Life & Health services to its portfolio. Insurance Matters is a quarterly comment on securing the reputation, income or property of NZ Bar Association members The Restive Season – Jack Tull MA, LLB With the Christmas holidays fast approaching, the prospect of a break from work allows us to spend valuable time with our families.

When asked what is the most important thing to us the answer is invariably, “The health and welfare of my loved ones”. What we don’t ask often enough is what is the depth and quality of our first line of defence if that “health and welfare” is threatened – our medical insurance?

To help answer that question you need to appreciate the relationship between your insurer, Medsafe and PHARMAC. As a division of the Ministry of Health, Medsafe’s mandate is to review the research, literature and clinical trials of treatments and medications to establish their efficacy and safety. Obviously this includes weighing up any side effects against the benefits.

PHARMAC is a government agency. Its mandate is to make decisions about how to best utilise the government’s pharmaceutical budget. While it too takes into account clinical benefits and risks of treatments (in conjunction with the particular health needs of Maori and Pacific peoples), availability and suitability; its key focus is budgetary impact. In other words the Government’s priorities for health funding and such other criteria as PHARMAC sees fit.

The effect of these two bodies’ slightly different agendas for you and your insurer is that there will be many safe and effective treatments which PHARMAC will not fund, due to budgetary constraints.

Such drugs include Vytorine which has excellent clinical trial results for cardiac conditions, Metrix in the treatment of carcinomas, and Herceptin for the treatment of various cancers including breast cancer.

Consequently, many of the drugs which are not funded or subsidised by PHARMAC, are hugely expensive. The outcome is that hundreds of thousands of New Zealanders have medical insurance but still aren’t covered for non-PHARMAC drugs. Are you one of them? More importantly, isn’t this the kind of hole in your life that you want filled for your “loved ones” before a medical crisis strikes?

Let’s face it, “T’is the season to be jolly” – not jolly sick.

Jack Tull is a specialist Life & Health adviser who, along with Jeremy Bernstein, also of Crombie Lockwood, advises members of the Association on their personal welfare insurance needs. Jack can be contacted on 09 623 9926 or 027 498 3882, jack.tull@crombielockwood.co.nz; Jeremy is available on 03 365 3763 or 027 495 9273, jeremy.bernstein@crombielockwood.co.nz N.Z. Bar Association Newsletter. December 2007. Page 18

Practice note on pre-trial applications in criminal jury trial cases The Chief High Court Judge and Chief District Court Judge have issued a practice note on pre-trial applications in criminal jury trial cases which came into effect on December 1, 2007.

It provides for a greater degree of formality in the processes for pre-trial applications on evidence issues under s 344A Crimes Act 1961 and all other pre-trial applications.

A party objecting to the admissibility of evidence is required to give written notice of the objection and the grounds.

The party seeking to call the evidence

may then file an application and the objecting party lodges a notice of opposition within stipulated time limits.

Simple forms are provided for this.

The objective is to ensure there is reasonable precision in stipulating the grounds of objection and the grounds supporting the admission of the evidence. It is also designed to promote the early and efficient disposal of pretrial issues.

The party seeking to call the evidence (usually the Crown) has a discretion as to whether to call the impugned evidence

and as to whether the issue needs to be resolved pre-trial or is better dealt with at trial. Judges will also exercise their discretion and may decide not to determine an application pre-trial if it is considered better to leave it to the trial Judge to determine at trial.

For other pre-trial issues, for example, applications for severance, stay, or a discharge under s 347 Crimes Act a simple process for applications and notices of opposition is provided for.

The practice note and forms are available on www.courtsofnz.govt.nz

NZBA Annual Conference Preliminary Notice SYDNEY ● 15 TO 17 AUGUST 2008 Members, mark your diaries now!

Programme to be released in the New Year Visit the Association’s website for regular updates www.nzbar.org.nz

N.Z. Bar Association Newsletter. December 2007. Page 19

Greetings of the season and best wishes for the New Year

N.Z. Bar Association Newsletter. December 2007. Page 20