NZBA Newsletter June 2007

Newsletter June 2007

President reports from Valencia

Challenging new issues to work on Writing this report from Valencia (as I am), the New Zealand legal system seems rather remote. Instead of commercial cases in the New Zealand High Court, I am embroiled in interpretation disputes about the meaning of articles in the protocol for the 32nd America’s Cup, provisions in the notices of race for the Louis Vuitton Cup and the match and design requirements contained in the America’s Cup class rule (Version 5.0).

At the inaugural bench and bar dinner, from left: Chris Gudsell QC, Jim Farmer QC (president), Colin Carruthers QC

Undoubtedly the most challenging issues from a lawyer’s perspective are ● Cont. on p.2

In this issue . . .

President’s report Draft rules Council dates Junior bar NZBA contacts Council minutes Marion Neller Libraries plan Bar chat Conference Executive Director Pre-trial conferences Justice Morris Lord Alexander

p.1 p.1 p.2 p.4 p.4 p.5 p.6 p.7 p.8 p.10 p.11 p.12 p.12 p.13

Ph: (09) 303-4515

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Draft rules: key issues identified

he New Zealand Bar Association has responded to proposed changes to the intervention rule set out in draft Rules of Conduct and Client Care for Lawyers prepared on behalf of the New Zealand Law Society. The new rules are required as part of preparation for the implementation of the Lawyers and Conveyancers Act 2006, which is expected to come into force on July 1, 2007. Draft rules were prepared by Associate Professor Duncan Webb and released for comment.

Fax: (09) 303-4516

P.O. Box 631 Auckland 1140

The Association’s response was contained in a five-page letter dated May 18, 2007 to NZLS president John Marshall, and two appendices, the first dealing specifically with the proposed barristeronly rules, and the second with the draft general rules. New Zealand Bar Association president, Jim Farmer QC, in the letter said that the Association had identified a number of key issues in respect of the barrister-only rules: ● Cont. on p.3 Email: nzbar@nzbar.org.nz

Continued from page 1

President reports from Valencia the highly technical provisions of the class rule. A lawyer’s interpretation of a document written by designers and engineers for designers and engineers is always in danger of being different from those who work with the rule on a daily basis. And of course the lawyer who is neither engineer nor designer will always struggle to understand the technical workings of the highly technological parts of a racing yacht. That of course is a problem that will be familiar to all of you who from time to time have to lead expert evidence on technical issues in a court case.

I have to say that I am intrigued by the existence of a truly self-contained legal system, with a hierarchy of rules that fall below what on the face of it seems to be a short and simple deed of trust written in 1887 in order to establish what is euphemistically called “friendly competition between foreign countries”. The America’s Cup is of course notorious for being anything other than friendly and, at least since New Zealand as holder of the cup relaxed the nationality requirements which led to a Swiss team consisting (almost) of everyone other than Swiss nationals taking the cup from us, is no longer truly a competition between foreign countries.

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eturning to the New Zealand legal system, I would like to congratulate those appointed to the rank of Queen’s Counsel. It is very satisfying that at last recognition has been given to the need to make a substantial number of appointments (12) after the small numbers appointed in recent years.

Standards at the bar are dependent on the example of its acknowledged leaders. The other side of that coin is that Queen’s Counsel must assume a responsibility for providing leadership, something which can take many different forms but which is vital to the health of the legal system.

This will be my last report as president of the New Zealand Bar Association.

Following an earlier stint of four years

in that position in the early years of the association, I took it on again three years ago because I felt that the separate bar was at a cross road. It could either continue as it had, as a voluntary body of barristers represented by a Council of enthusiastic barristers supported by a part-time secretariat. Or it could lift its game and step up to take a higher profile in the new legal environment that was developing and that the expected new legislation regulating the profession would stimulate.

With the continued growth of the separate bar, I had no doubt as to what the answer to that option was. The appointment of a full time executive director represented an essential first step to the establishment of the Bar Association as a more professional and influential organisation. But the tasks that the Council now takes on and the degree to which it is consulted on a wide range of important issues are also reflective of that development.

The future will, I am sure, involve a continuing need for the Bar Association to protect the position of the independent bar. It never ceases to amaze me that the role and importance of the separate bar is so poorly understood, as is reflected in some of the debate about the intervention rule and in particular by suggestions that it is anti-competitive and contrary to consumer interests. It may be that, by not explaining publicly our position, we have ourselves to

blame for these perceptions.

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he future too, I would hope, will see develop something akin to a partnership between the New Zealand Law Society, as the statutory regulator and principal representative body of the whole legal profession, and the New Zealand Bar Association, as the body that has the health of the judicial system closest to its heart. In key areas such as training, the setting and maintenance of professional standards and developments of processes of dispute resolution, the Association, through the expertise of its members, is perfectly positioned to assist the New Zealand Law Society in carrying out its regulatory functions.

I think too that the future must see the New Zealand Bar Association participating in international forums where issues of common interest and concern are addressed and debated in which we can both learn and contribute. We have already made a start in that direction through recent contacts with Australian Bar Associations and one of our Council members, Colin Carruthers QC, will be addressing the forthcoming ABA Conference in Chicago on our behalf.

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ur annual conference in August breaks with tradition this year by moving from Queenstown to Christchurch. We have once again an interesting programme with overseas speakers. I commend it to members.

— Jim Farmer QC ■

COUNCIL MEETINGS Proposed dates and locations for remaining 2007 Council meetings are:

July 19

Auckland

August 17-19

Christchurch annual conference

September 27

Hamilton

November 22

Auckland

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

Continued from page 1

Draft rules: key issues identified ◆ It was imperative to formulate rules for the training of barristers and practice requirements prior to promulgating rules of conduct and client care for barristers sole; ◆ The intervention rule was not anti-competitive, but rather efficiency enhancing and promoted competition; and ◆ The Association supported some refinements to the current intervention rule, but with some key differences from the proposed changes.

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r Farmer said the Association considered that a prohibition on barristers commencing proceedings, filing documents and making demands or engaging in correspondence on behalf of the client was required to maintain barristers’ independence, promote competition, enhance efficiency and consequently benefit the consumer.

Barristers must not hold a client’s property. Any advance fees in a direct instruction situation must be placed in the trust account of an independent solicitor, or in an account which would ensure that the lay client had the same protection as if the funds were held in a solicitor’s trust account. The letter also advocated a prohibition on barristers practising in partnership to preserve their independence, enhance efficiency and prevent the cab rank principle from being undermined.

Appendix A of the Association’s response states that there is no precedent for what the draft rules propose in relation to barristers filing documents and conducting correspondence in either the United Kingdom or Australia, the two jurisdictions to which New Zealand generally looks for guidance

in law reform matters. The submission says that the Association agrees with the prohibitions in those jurisdictions against barristers carrying out such work. The letter and full responses can be viewed on the Association’s website – www.nzbar.org.nz Detailed work is also continuing on progressing proposals for a unitary model for societies under the new regime. The NZLS instructed former

Five-member board to be responsible for governance president Chris Darlow, and former vice-presidents Kerry Ayers and Warwick Deuchrass to report on how a one-society proposal could be developed and implemented. This would involve abolition of the district law societies, and the operation of an NZLS unitary model. A first options paper was released on February 21, 2007.

That was followed by consultation with district law societies, NZLS sections, the New Zealand Bar Association and other organisations.

A second options paper was then published on April 5, followed by a further round of consultation.

Recommendations were released and can be viewed at www.lawyers. org.nz/lawyersconveyancers.asp. The restructuring group is recommending an NZLS constitution providing for 14 unincorporated branches based on the current 14 districts, three sections (the Property and Family Law Sections and the Corporate Lawyers Association of New Zealand) and the New Zealand

Bar Association. The NZLS board will comprise the NZLS president and four vice-presidents and will be responsible for NZLS governance. There will be a single chief executive officer based in Wellington and accountable for all administrative functions of the council and the board. There will be two general managers – one regulatory and one representative.

The restructuring group is also recommending that regulatory and representative service delivery should be determined after a detailed review, which it is proposed should begin in the near future. The group states that member service locations are likely, at least initially, to remain as before, but changed regulatory functions under the new legislation may lead to a requirement for increased service capacity in the smaller districts.

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he recommendations were discussed at a special NZLS Council meeting on June 8. Drafting of a detailed constitution is now taking place. It will be available for interested parties to comment on throughout July, with the closing date for submissions being July 31. The redrafting of an organisational model is due to be completed by August 31, after which copies will be distributed to the council, NZLS board, districts, sections and other organisations.

The board will consider the model on September 20, and it is expected to be ratified by the council on the following day.

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Next Newsletter publication date: September 2007

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

Junior barristers and squatters . . . a few thoughts from the junior bar

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hen I recently informed a friend of mine that I had just become a junior barrister, she replied, “So you’re a squatter”. Having grown up on a small island in the south west Pacific, being called a squatter did not evoke positive images.

My look of indignation no doubt prompted her to explain further.

It turns out that in the United Kingdom, junior barristers are referred to as (affectionately or otherwise) “squatters”. Over there, the usual situation is that a junior barrister works in a chambers “rent free” and is provided a guaranteed income from one or more barristers.

Over the ensuing weeks, while I set about organising a post office box, an accountant, a domain name, an invoicing system, GST registration, and a business account, opting for squatter status did not look like such a bad idea. But now, looking back, setting up my own business, although challenging, was a tremendously satisfying experience.

For me (and hopefully most of you) being a junior barrister means stimulating and challenging work, control over your working hours and developing working relationships with more senior members of the bar. The only thing that seems to be missing is a junior barrister network. And that is what the NZBA is trying to achieve.

As the “junior” member representative on the NZBA Council, should any of you wish to express your views/ concerns/ideas related to being a junior barrister then please email me: lauren@laurenlindsay.co.nz. We wish to create a dialogue with junior members in order to achieve better representation of junior members by the NZBA, a social and support network between junior members, and interaction between the junior and other members of the NZBA.

◆ NZBA Conference August 17-19, Christchurch – programme to be confirmed ◆ Litigation Skills Programme August 19-25, Christchurch SUGGESTIONS We have lots of ideas to help foster a strong junior bar. Your thoughts are welcomed on the following: ◆ Practice management workshop for junior members: The focus of the workshop would be on how to set up your own business, including finding premises, hiring an accountant, time recording, billing systems and cash flow management.

◆ Inaugural junior barristers’ function July 27, Auckland. (See Association’s website for details.)

◆ NZBA website – section devoted to junior members: This would indicate the junior’s legal specialities and “availability for work” status. It would serve the dual purpose of assisting junior members in getting work from a wide range of sources and informing the middle and senior bar who is available to take on a particular task.

◆ NZBA Council meeting, July 19, Auckland

Till next Newsletter — Lauren Lindsay

UPCOMING EVENTS

NZ Bar Association 2006–2007 Council — Contact details Ph: 09 358 7090 Fx: 09 358 7091 P O Box 1800 Auckland

Miriam Dean QC miriam@barrists.co.nz

Ken Johnston k-johnston@clear.net.nz

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

Vice-President Christopher Gudsell QC ctgudsell@xtra.co.nz

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

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

Stephen Mills QC

Ph: 09 307 9820

Treasurer Trevor Shiels

Ph: 03 477 4030 Fx: 03 477 7320 P O Box 1219 Dunedin

Bruce Gray QC bdgray@shortlandchambers.co.nz

Ph: 09 309 1769 Fx: 09 366 1599 PO Box 4338 Auckland

Terry Sissons terry.sissons@xtra.co.nz

Ph: 04 471 1380 Fx: 04 499 8795 P O Box 23063 Wellington

Colin Carruthers QC crc@crcarruthers.co.nz

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

Stuart Grieve QC stuart@grieve.co.nz

Ph: 09 358 1716 Fx: 09 358 1718 P O Box 4555 Auckland

Matthew Ward-Johnson

Ph: 07 579 0408 Fx:07 579 0404 P O Box 13561 Tauranga

Kate Davenport kate@katedavenport.co.nz

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

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

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

President James Farmer QC jamesfarmer@queenscounsel.co.nz

trevor.shiels@barristerschambers.co.nz

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

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

P O Box 4338 Auckland

ward-johnson@tgchambers.co.nz

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. June 2007. Page 4

NZBA Council Minutes T

he Council met on Thursday, May 10, 2007 in Wellington. Apologies were received from Stuart Grieve QC, Bruce Gray QC, Jonathan Eaton.

Lauren Lindsay was co-opted to the Council as the junior member representative.

Trevor Shiels reported on the Association’s financial year-end accounts and bi-annual GST report which had been filed.

The Council discussed expanding the bulk-buying portfolio to bring members further bulk-buying privileges and discounts. IT hardware, practice management software and telecommunications (telephone conferencing) were mentioned.

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On April 1 the Association’s new website was launched – www.nzbar. org.nz. The Council agreed that the site should be interactive and regularly updated.

Justice Randerson, Chief High Court Judge, attended part of the Council meeting. Topics discussed included the draft High Court Rules and the Law Commission’s project on access to court records. It was noted that the revision of the High Court Rules does not attempt any significant changes to the High Court Rules except in a few areas which are clearly flagged in the accompanying material sent out for consultation. The revision is mainly concerned with formatting, reordering the rules in a more logical fashion and modernising of language. Ken Johnston is to consider the draft rules and provide comment to the Rules Committee.

Stephen Mills reported that submissions were required no later than June 30.

The Chief Judge advised that the Law Commission has produced a report on access to court records which ● Cont. on p.6

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Continued from page 5

NZBA Council minutes proposes a disclosure regime similar to that under the Official Information Act. Members of the judiciary have expressed some concern about this approach. The government has now referred the Law Commission’s report to a select committee for consideration.

In the meantime the Rules Committee is considering changes to Rule 66 of the High Court Rules which are necessary following the decision of the Supreme Court in Mafart and Prieur.

as a barrister sole (subject to additional underwritten premium costs) and a “suspension of practice” extension that allows members to retain cover for up to 18 months without additional charge when practice activities are suspended e.g. maternity leave or sabbatical. This extension does not provide for the refund of any premium already paid.

Apart from the new optional extensions, the premium terms and cover limits remain unchanged.

dinner with the NZLS. Essentially, the event would resemble a bench and bar dinner.

The Association’s response to the NZLS draft Rules of Conduct and Client Care was discussed at length. [A copy of the Association’s response is now available on the Association’s website.]

Details of the 2007 annual conference actual sessions are almost finalised. A programme will be available shortly and a copy will be posted on the Association’s website.

Colin Carruthers QC spoke to his memorandum about the High Court meeting with external agencies.The next external agencies meeting is scheduled for August 8, 2007.

C o l i n Carruthers QC, Chris Gudsell QC, Stephen Mills, Ken Johnston and Terry Sissons reported on their meeting with the delegation from the NZLS restructure working group on April 4, 2007 in which it was discussed that the Association was seeking to be involved with the NZLS in an information sharing and specialist contribution role.

Chris Gudsell reported that it seemed likely following the meeting that the Association would have a role on the Council and that is what has been recommended by the restructure working group.

The Council discussed the possibility of a joint c o n fe re n c e with the Queensland Bar Association in March 2008. The Council agreed that as this event was too close to the NZ Bar Association’s own conference in August, the Association would not participate in the 2008 joint conference but would offer support of Association/Council members to facilitate sessions at the conference.The Council agreed to promote the Queensland Bar Conference on the website.

The Association was contacted by the media regarding the “Sex trial transcript altered for appeal”. Stuart Grieve QC responded with the Association’s views and confirmed that Chief District Court Judge Johnson had dealt with the matter appropriately.

Disclosure of court records: some concern from judiciary

Terry Sissons conducted a review of the regulations that set civil court fees and will draft and circulate a report regarding two issues raised: (1) whether the fees will impede access to justice and (2) whether the waiver system is working.

Professional indemnity insurers have agreed to the retention of current terms for the new insurance period commencing May 1, 2007. Further enhancements being offered to members include “run off” cover for past practice activities before commencing practice

Jim Farmer QC held that the NZ Bar Association needed to establish a global presence. It was noted that the World Bar Conference is being held in Dublin on June 27, 2008 and that this was an obvious conference conducive to official attendance. To be discussed at the next meeting.

On Jonathan Eaton’s recommendation, the Council agreed that an annual exchange of attendances at Bar Council meetings should be encouraged between New Zealand and Australia.

The meeting discussed jointly hosting the Court of Appeal golden jubilee

Discussion took place about the importance of libraries and library support in the various districts.Miriam Dean QC is to liaise with Catriona MacLennan regarding the consultative document and executive summary and establish to what extent the Association needs to be involved.

The next meeting will be held in Auckland on July 19, 2007 ■.

Manager Leaves Marion Neller recently concluded her time as manager of the High Court at Auckland after 40 years with the ministry.

Ms Neller has accepted an 18 month secondment with the ministry as national training adviser after which she intends to retire.

The Association wishes to record its thanks to Ms Neller for the great service she has provided to the bar and to the court system over the years, and wish her all the best in the future.

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

Libraries blueprint released T

he district law societies’ libraries steering group is requesting that an initial establishment board be appointed as soon as possible to implement the recommendations of a report on the future of the district law society libraries. The report, The Future of Law Society Libraries in New Zealand – A Recommendation, was commissioned by the group in the run-up to the implementation of the Lawyers and Conveyancers Act 2006, which is expected to come into force on July 1 2008.

Arrangements for the future of the libraries need to be made as part of the new regime being introduced by the legislation.

An initial consultative document was produced by report authors

Two possibilities for ownership of national service Catriona MacLennan and Geoff Brodie.

Submissions were received over a two-month period, and a final report has now been produced to provide a blueprint for the future of the libraries as the one-society proposal continues to move forward.

The report stresses the need for a high quality, national library service universally available throughout New Zealand for the benefit of both the entire profession and the judiciary. The document recommends that the new service be at least of the standard of the existing services, centred on the libraries currently provided by the Auckland, Wellington and Canterbury District Law Societies together with the additional libraries provided by the Otago and Waikato Bay of Plenty districts and the satellite libraries provided elsewhere.

The report calls for the service to be funded by a levy on all practitioners, with the addition of user pays where

appropriate. The Lawyers and Conveyancers Act provides for funding by means of a levy for a five-year period.

The authors state that, wherever possible, the libraries should be situated in court buildings for the benefit of the profession and the judiciary and to assist the administration of justice.

It is suggested that there should be co-operation with the judicial library resources wherever possible.

The new service will be overseen by a national board comprising a mix of practitioners, the judiciary and librarians.

A draft charter or set of objects is set out in the report, which lists nine suggested objects. These include providing a comprehensive legal information/library service to the legal profession and judiciary. The guiding principle should be that legal information of a high quality is made universally available to the profession and bench, thereby ensuring that the public has proper access to justice and to the courts in an efficient, equitable and effective way.

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ther objects include regular consultation with the profession and judiciary to determine the needs and wants of the profession, and making recommendations to and negotiating with the New Zealand Law Society on the appropriate levy to be charged by the society for libraries. It is also proposed that the board should be alert to the possibilities for co-operation with institutions such as the Ministry of Justice, the judges’ libraries, and university and other law libraries.

The board will also be charged with recognising the intangible heritage value of the library holdings and ensuring that these assets are preserved intact for the benefit of future generations in appropriate cases. The authors suggest that the board be required to formulate and present to the board of the New Zealand Law Society for approval annually proposals for the provision and further development of the law library service throughout New Zealand.

The report notes that the universally available library service can only be achieved if each district law society resolves to hand over ownership of that society’s library assets to a suitable new body. It is suggested that there are only two realistic possibilities for such a body: ownership of the library resources could be vested in the New Zealand Law Society, or a dedicated incorporated society could be established. The document says that either structure could be made to work, with the choice between the two alternatives coming ● Cont. on p.11

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. June 2007. Page 7

Inaugural bench and bar dinner Bench and bar dinner

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n the tradition of the annual bench and bar dinners held by bar associations in Australia, the New Zealand Bar Association hosted its Inaugural bench and bar dinner on May 9, 2007 at the Wellington Club. It was a hugely successful evening with an inspired choice of guest speaker, David Carruthers, former Chief District Court Judge. There was a very good attendance of judges from many different courts and a good cross-section of barristers from around the country.

At the bench and bar dinner.

From left, Chris Corry, Chris Gudsell QC, Stephen Mills QC

• Graeme Little SC, Ailsa Duffy QC, Matthew Ward-Johnson, Warwick Smith

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

May 9, 2007, in Wellington Next year’s dinner will be held in Auckland and we will advise members closer to the time.

• Judge Caroline Henwood, Terence Stapleton

• Mary Peters, Karen Stevens, Maria Dew, David Bigio

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

All this and jazz too

Bar chat . . .

BAR TO JAZZ UP CHRISTCHURCH The 2007 New Zealand Bar Association annual conference will be held in Christchurch between August 17 and 19.

Appointment of new silks The Bar Association offers its warmest congratulations to the 12 new silks on their call to the inner bar: John Marshall Deborah Hollings Bruce Corkill Christopher Gudsell Matthew Casey Nicholas Till Stephen Mills Susan Hughes Stephen Kós Campbell McLachlan Robert Lithgow Karen Clark

Moving to Christchurch means the travel will be easier and cheaper especially for young members and we are very keen this year that we get a good turn out from the junior bar. As well, the hospitality of the Crowne Plaza Hotel and other venues is something to look forward to.

The conference begins on Friday night with an informal dinner at a jazz bar, “Fat Eddie’s”.

New members The Bar Association welcomes the following new members to the independent bar and/or the Bar Association: AUCKLAND Alex Ashmore Charl Hirschfield Claire Mullord Daisy Williams David Amodeo Helen Gilbert Helen Holland John McBride Lauren Lindsay Lewis Turner Sally O’Brien Sam Carey Shane Hutton HAMILTON Gina Jansen Jarom Keung Michael Curran

TAURANGA Glenn Dixon Matthew Goodwin WELLINGTON Gregory King Justin Smith Les Taylor Victoria Casey NAPIER Jonathan Krebs Scott Jefferson CHRISTCHURCH Graham Howard Kevin Clay Lynne Harrison Rob Osborne

The work programme will be held on Saturday. Professor Jim Raymond is a North American academic who has lectured on legal writing all over the world. In particular, Professor Raymond has worked with judges in New Zealand, Australia, Canada, England and the US on judgment writing. He will help us to understand how judges seek to write judgments so that our written submissions can be tailored more accurately to judges’ requirements.

The Council has little doubt that all members – from the junior to the most senior – will benefit from hearing Professor Raymond on the subject of written advocacy.

Following this, Justice Michael Kirby of the High Court of Australia and Justice Winkelmann and Kieran Raftery from New Zealand will lead debate on when oral submissions should depart from synopsis.

The afternoon programme addresses the interface between the bar and the media, which is particularly topical at the present ● Cont. on p.11

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

‘Incredibly exciting’ six months From the

Executive Director

T

he last six months have been incredibly exciting for the Association. Among our achievements are a hugely successful inaugural bench and bar dinner held recently at the Wellington Club, an increase in membership of just under 100 new members (bringing the total membership of the Association to 770) and a new and improved website (www.nzbar.org.nz) which was launched on April 1.

In addition, the Association has achieved further enhancements to professional indemnity coverage being offered to members. A number of members have experienced difficulty in obtaining “run off” cover for past practice activities before commencing practice as a barrister sole. Generally speaking, the insurance market is reluctant to provide “run off” cover to practitioners when such “run off” cover is not a continuation of cover from a practice previously insured by the same insurer. The concession to Bar Association members, while being subject to additional underwritten

Continued from page 10

All this, and jazz time.

Justice Tony Randerson, John Billington QC and Deborah Coddington will explore when it is appropriate for barristers to talk to the media, what media want from barristers and how best to deal with the media.

There will be a formal dinner at the Christchurch Art Gallery on Saturday night.

Conference packages are well priced. Early indications are that a large attendance can be expected.

We look forward to seeing you all at Fat Eddie’s and the following events.

■

premium costs, does provide a solution to a difficulty experienced by some members in recent times. Insurers have also agreed to a “suspension of practice” extension that allows members to retain cover for up to 18 months without additional charges when practice activities are suspended, during, for example, maternity leave or sabbatical.

This extension does not provide for the refund of any premium already paid.

Apart from the new optional extensions, the premium terms and cover limits remain unchanged.The new extensions offered to members are available on request. “Run-off” cover will be subject to additional premium charges quoted by the insurers on a case by case basis. If you require further information, please contact John Martin at AON on (04) 8194000.

The Association’s bulk-buying portfolio continues to grow and the Council is currently negotiating with the following suppliers: ◆

TFB New Zealand Limited — for their award-winning practice

management software “Partner for Windows” ◆

Premiere Global Services — for reduced telephone and web conferencing rates

Practice Management software: With almost 30 years in the legal industry, TFB have a range of practice management solutions which can be tailored to barristers’ individual needs.

The Partner for Windows suite is made up of a number of individual modules which together form a complete family of systems to meet the back and front office needs of the busy barrister.

Partner for Windows has two main modules, Accounting Partner and Document/Case Management. One of the many highlights of the Partner for Windows software is its interface with Microsoft Outlook which allows users to file incoming and outgoing emails directly to a client or matter file.

Telephone and Web conferencing: Second only to Telecom in size, Pre● Cont. on p.12

Continued from page 7

Libraries blueprint released down to a matter of interpretation of the legislation. A final choice should only be made once it has been conclusively established that the option to be adopted is legally sound.The report suggests that counsel’s opinion, a court declaration or an amendment to the legislation might be required to resolve the matter.

concentrated and significant legal research was not simply a process of cutting passages from materials ordered from a library, website or database and pasting them into legal submissions. This pointed to the need for soundly-based resources, and not just in three, four or five main centres.

The authors state that the consultation process threw up many very good ideas and suggestions as to the library services to be supplied.

One strong theme in the debate was the proper place of technology and the extent to which libraries could adequately be provided via electronic or online resources. It was apparent that New Zealand was fortunate in having a strong bar throughout the provinces.

The submissions also recognised that

The report calls for the appointment of an initial board to set up the new library service as soon after early June as possible. The board could then assist in the process of selecting the correct legal structure and placing the proposal to create the national service before the districts in accordance with the timetable proposed by the restructuring group working on the one-society proposal.

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N.Z. Bar Association Newsletter. June 2007. Page 11

Continued from page 11

Pre-trial Conferences

Streamlining move for High Court

T

he Chief High Court Judge, Justice Tony Randerson, has advised that after consultation with affected parties and the profession, a system of pre-trial conferences for trials in the High Court is to be implemented where this is not already occurring.

The purpose of the conferences is to endeavour to streamline trials and to avoid unnecessary adjournments.

The focus will be on longer trials but, in some registries, conferences will be held for shorter trials as well.

conference with a copy of the checklist the judge will use.

CIVIL TRIALS (a) The conferences will be held as far as practicable by the trial judge approximately 10 working days after the date fixed for service of the first witness statements;

The following arrangements will apply:

(b) At second conference, an associate judge will normally allot the fixture date, specify the setting down date, make timetable orders for the exchange of witness statements and set the date for the pre-trial conference; and

(a) The conferences will be held as far as practicable by the trial judge between five and 10 working days prior to trial, and

(c) Registry staff will send notices to counsel of the date of the conference along with a standard form agenda for that conference.

(b) Registry staff will send notices to counsel of the date of the

The system will be kept under review and modified as required.

CRIMINAL TRIALS

Obituary

Justice David Morris Justice David Morris spent much of his time as a prosecutor in the No 1 courtroom at the Auckland High Court and it was there that he was at his best, Queen’s Counsel Stuart Grieve told a memorial sitting held on May 25 to honour the late judge.

recalled that he and David Morris had at that time both lived in the Auckland suburb of St Heliers, and had driven to work in a jointly-owned Fiat Bambina.

“The minimal fuel consumption had great appeal – (to) me on my meagre salary, (and to) David’s Scottish parsimony.

Mr Grieve, a council member of the New Zealand Bar Association, and speaking on behalf of the presidents of the Association, the New Zealand Law Society, the Auckland District Law Society and the New Zealand Criminal Bar Association, said that he was privileged to speak at the gathering.

“I did many trials as David’s junior and I have always appreciated how fortunate I was to have the opportunity to learn from him.”

His association with Justice Morris and his family stretched back 40 years, to when Mr Grieve first joined Meredith Connell as a junior lawyer. Mr Grieve

However, Mr Grieve said that there were others whose association with Justice Morris stretched back even further, whether professionally or as friends, or both. They included friends and colleagues from his law school days, mentors and partners in Meredith ● Cont. on p.13

‘Incredibly exciting’ miere Global Services’ telephone conferencing facility has been operational in New Zealand for five years. Awarded best telephone conferencing service by the Australasian Teleconferencing Association, Premiere Global Services will offer Bar Association members significant savings on telephone conferencing rates when compared against Telecom rates. Other benefits include online billing, 24/7 operator customer support, security (pass code access to conference, conference lock, roll call, recording calls) and toll free 0800, mobile and international toll free access from 25 countries About 12 months ago the Association promoted a fuel offer to members from Cardplus / Caltex. I am pleased to advise that Cardplus Ltd have since established their own fuel card operation and as a result can now offer members further discounts and benefits. For more information please visit www. membercard.co.nz Investigation is also under way in relation to computer equipment. The Council is exploring a bulk-buying arrangement for members to purchase a complete range of commercial desktops, laptops, printers, file servers and associated devices at heavily discounted rates.

Members will shortly receive a package of material relating to the discounts and benefits of the above products and services.

T

he line-up for the upcoming six months promises to be exhilarating with an inaugural junior barristers function planned for July, the annual conference and AGM in August (this year in Christchurch) followed by the litigation skills programme also in Christchurch. — Monique Pearson

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

Lord Alexander of Weedon QC O

ne of the attractive features of the Privy Council era from the standpoint of New Zealand counsel was the opportunity to work alongside some of the great English advocates, to see them in action before judges of the highest intellectual calibre, and to learn from them. An outstanding example of a top flight English advocate who appeared in several New Zealand Privy Council appeals was Robert Alexander.

Lord Denning, before whom he often appeared, described him as “the best of his generation”. It is appropriate to note his passing in this Newsletter. In doing so, I shall incorporate some of the remarks made by his close friend, Lord Phillips, Lord Chief Justice of England, at a service in tribute to Lord Alexander at St Margaret’s Church, Westminister last year.

Lord Phillips mentioned Bob Alexander’s humble origins and his entrance on a scholarship to King’s College, Cambridge. He read for the bar at the Middle Temple, because it offered the best scholarships. After some years on the Western Circuit Justice Roskill spotted his talents and persuaded him to move to commercial chambers in London. After taking silk in 1973 there followed a long series of high profile cases, beginning with Kerry Packer’s battle with the cricket authorities and including the Jeffrey Archer defamation case. Lord Phillips recalled that Bob Alexander was a wonderful advocate, whose secret was a vigorous analysis of the facts, sound research of the law and, above all, the appearance in every case of a personal conviction in the merits of his client’s cause.

I

first met Bob Alexander when I went with Paul Temm, QC for advice in relation to the proposed Privy Council appeal in the Myers case: Coleman v.

Myers [1977] 2 NZLR 225. We were very impressed. When the Erebus case came along, I secured Bob’s services for Air New Zealand. This led to Bob’s first appearance in a New Zealand Privy Council appeal: Air New Zealand Ltd v.

Obituary Mahon [1983] NZLR 662. When the first conference had been completed, I asked Bob if I might listen to his closing speech in the Packer case, due a day or so later. It had been running for about six weeks. He said that he would not be giving the closing because he had promised to appear for BP in another important case (BP Exploration Co. (Libya) v. Hunt No. 2, [1982] 1 All ER 925 (HC; CA; HL), which involved the consequences of the expropriation by

Libya of oil concessions held by BP and Nelson Bunker Hunt. Anthony Morritt, QC, who had not been counsel in the Packer case, had been retained to give the closing address! This was a telling indication of the demand for Bob’s services.

In the Erebus case, Bob appeared for Air New Zealand, with Lloyd Brown, QC and Richard McGrane (the latter then at Russell McVeagh and now a partner at DLA in London). I appeared with Lyn Stevens for the Air New Zealand ● Cont. on p.14

Continued from page 12

Justice David Morris Connell, Solicitors-General with whom he worked, defence counsel, and judges.

Mr Grieve said that there was probably no judge Justice Morris respected more than Sir Trevor Henry (who has just died, aged 105). “Prosecutors and defence counsel alike will remember Sir Trevor for a trademark phrase frequently used in his summings up to juries. There would be mention of some defence point or evidence by way of preface, ‘Give that evidence the weight you think it deserves.’ And then it would come, with a slightly quizzical tone, sometimes with a gently raised eyebrow, ‘It’s a matter for you.’ On appeal in a transcript of evidence, it was generally regarded as an appropriate and correct statement of the law. To those in court (it was) a none too subtle dismissal of the point in issue.”

Mr Grieve said the colleagues who respected, liked and admired Justice Morris graphically illustrated the measure of the man.

“David will be remembered as one of the law’s characters. He was widely

recognised as one of the country’s foremost prosecutors. His forte was the jury trial – and the facts,” said Mr Grieve.

“That is not to say he was wanting in his knowledge of the law. Far from it. Behind his hearty demeanour and Scottish accent there was a keen intellect. In his final year in law school – 1958 – he was senior scholar in law, a fact he did his best to conceal.”

Mr Grieve described Justice Morris as without peer as a jury advocate. “He had sound judgement and understanding which enabled him to relate easily to jurors. He was a formidable crossexaminer with an instinct for the jugular.

Generally he preferred a broad sword approach. He was not a man for too much detail. He had the courage and conviction to ignore it.”

Mr Grieve said the profession extended its sympathy to Justice Morris’s wife Barbara and to his family, and saluted Justice Morris.

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N.Z. Bar Association Newsletter. June 2007. Page 13

Continued from page 13

Lord Alexander of Weedon QC executives and Robert Smellie, QC appeared for the Attorney-General with Noel Anderson. For Justice Mahon, the line up was Sir Patrick Neill, QC, David Baragwanath and Robert Chambers.

Thus there were five future New Zealand judges involved in the case.

on the law. He was appointed chairman of Justice and also treasurer of the Middle Temple. He undertook various public activities, including chancellor of Exeter University, chairman of the Royal Shakespeare Company and chairman of the MCC.

Apart from the altogether extraordinary general public interest aspect of the case, it provided an unusual opportunity for effective advocacy since the law lords decided to exhaustively examine the facts to see whether there was any foundation for the findings of misconduct made against the Air New Zealand executives. As a result, the case ran for almost three weeks. The Neill/ Alexander contest was an absorbing clash of the titans. Robert Alexander’s eloquent advocacy played an important part in the decision of the Privy Council, not only to unanimously affirm the findings of breach of natural justice made by the Court of Appeal, but also to hold that there was no factual basis for the findings of misconduct.

On retirement from Natwest, Bob accepted international arbitral appointments and also undertook some barristerial work. His last appearance

I

n subsequent years, Bob appeared as counsel for the successful appellant in Chase Securities Ltd v. GSH Finance Pty Ltd [1989] 1 NZLR 481, a significant contractual interpretation case. He also appeared, with Douglas White as his junior, at the tail end of the famous Finnigan v. Rugby Union litigation when the Rugby Union unsuccessfully sought special leave to appeal the Privy Council.

This was the only Privy Council case where Bob was on the losing side.

Although everyone thought that Bob was destined for a judicial career that would culminate in an appointment as a law lord, it was not to be. Between 1987 and 1989 he had chaired the Takeover Panel with conspicuous skill. In 1988 he accepted a life peerage. Out of the blue in 1989 he received an invitation from Lord Boardman to follow him as chairman of Natwest Bank. The wider horizon that this invitation offered was irresistible.Though he spent the next 10 years at the bank he did not turn his back

‘We help keep the flame of freedom alive’ on a New Zealand Privy Council appeal was to lead Gerard Van Bohemen for Watercare Services Ltd, a defendant in Hamilton v.Papakura District Council [2002] 3 NZLR 308 (PC). Both defendants (the Borough Council represented by Christine Meechan) avoided liability, albeit by only a three to two majority.

(According to the NZLR, for the appellant was a certain M.E. Casey, QC – a premature appellation, but, as of May 2007, now a correct one!)

In recent years one of Bob’s particular projects was to argue for a Judicial Appointments Commission.

This latter objective was achieved by the appointment of the Judicial Appointments Commission in 2006.

Those who had the pleasure of friendship with Bob will recall his courtesy and charm. As Lord Phillips said, “Once met, Bob was not easily forgotten. Bob cared about many things but above all he cared about people.

When he talked to somebody, whoever that might be, he made that person feel that he or she was the very centre of his interest and attention.”

Bob Alexander loved his visits to New Zealand. He was a keynote

speaker at the New Zealand Law Society conference in Christchurch in 1987. A good example of his eloquence is his article “The Role of the Advocate in Society” which appeared in the July 1992 New Zealand Law Journal at p.232.

His article concluded as follows:

“Let me come back to the essential role of our profession. We are there to uphold justice, and to represent our client. Any case for a client in court is a matter of acute anxiety. I have myself twice been a litigant: once as chairman of the Bar Council, and later as chairman of the Takeover Panel. In each case I was acting in a representative capacity, without the additional concerns which affect a personal litigant, but even so I felt vividly what clients go through. Have I been correctly advised? Will the judge understand the case? Is the other side leading him astray? Will he appreciate the reality which lies at the heart of the dispute? Will he be bold enough to find against the authority of the state?

“When asking all these questions, I realised that to secure the correct answer I was very largely in the hands of my advocate. I needed his skill, common sense, courage, tact and articulacy. He was, in a very real sense, a champion who stood alone for me in answer to a most important challenge. I have rarely felt so dependent upon anyone at any time. In each case, I was immensely well served and felt abundant gratitude.

“I mention this to stress, from the perspective of those who engage our services, just how important is the work we do for our clients. It is demanding, it may be very exhausting, and sometimes we have our failures. If we strain every sinew to perform to the best of our ability, it is all immensely worthwhile.

Not least is this because by doing so we help to keep the flame of freedom alive.

We can be quietly proud of our role in society.” — David Williams, QC

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

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E A S E

2007. IPageT15 Y A N N.Z.DBar Association S ENewsletter.

C March U R

New Zealand Bar Association grants for the litigation skills programme 2007 August 19-25, 2007, Lincoln University, Christchurch Trailing the New Zealand Bar Association’s annual conference in Christchurch is the New Zealand Law Society Litigation Skills Programme. This week-long programme provides in-depth hands-on training in successful courtroom advocacy.

The teaching methods for the programme have been adapted from those of the US National Institute for Trial Advocacy (NITA). Each day of the programme allows for intensive practice of discrete advocacy skills and encourages participants to learn by doing and by observation.

Throughout the course participants are guided by speciďŹ c, candid and constructive critique from experienced faculty members from all over New Zealand.

Day One is structured around leading evidence, cross-examination and production of exhibits.

Day Two will allow participants to practise cross examination and impeachment, Day Three will involve the examination of expert witnesses and on Day Four there will be mini trials and drills on opening addresses. In Day Five participants will practise closing arguments and begin preparation for the full mock trials, which take place at the Christchurch courts on Day Six. The New Zealand Bar Association is offering a full scholarship each to two recent new members of the independent bar.The grants are being offered by the Council as an indication of its determination to support the initiatives presently being taken to improve the standard of litigation skills of those at the independent bar. Applicants do not have to be a member of the New Zealand Bar Association but must be eligible to join, i.e. practising as a barrister sole. The scholarship recipients will be required to join the Association and will be expected to remain members for a minimum of three years.

The closing date for applications for the course is July 2, 2007.

For further information please contact Ruth Payne, Advocacy Programme Coordinator, NZLS CLE, ruth.payne@lawyers.org.nz or Tel: 04 463 2943

June 2007

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