NZBA Newsletter March 2006

New Zealand Bar Association THE OFFICIAL BAR ASSOCIATION NEWSLETTER

Big changes coming in District Court Rules

M

ajor changes to the District Court Rules will be contained in a draft bill expected to be introduced to Parliament by mid-2006, says Rules Committee chairperson Justice David Baragwanath.

Justice Baragwanathʼs three-year term on the committee expires in May this year and he says he is keen to see the reforms completed before he relinquishes his position.

Justice Baragwanath describes the role of the Rules Committee as ultimately being to ensure that procedural laws deliver in a timely fashion on the rights promised by the substantive law. The requirements for affordable and speedy justice mean that rules must be as cost-efficient as possible, creating a constant tension between the needs for confidence in the legal system and the drive for efficiency.

The committee is required by section 51B of the Judicature Act to have 10 mandatory members: the Chief Justice, two High Court judges, the Chief District Court judge and one other District Court judge, the Attorney-General, the Solicitor-General, the chief executive of the Ministry of Justice, and two barristers and solicitors nominated by the Council of the New Zealand Law Society

In this issue . . .

District Court Rules pp.1,3,4 QC appointments pp.1,2 Presidentʼs report p.6 Obituary: Robert Fardell QC pp.7,8 Recovery rates p.8 Stakeholders meeting p.9 Council report p.10 Bar Chat p.10 Nigel Hampton QC p.11 Witness coaching pp.12,13

and approved by the Chief Justice.

In addition, the Chief Justice may appoint any other person to be a member for a special purpose.

Justice Baragwanath describes as notable the work of the Chief Parliamentary Counsel, George Tanner QC, in assisting with drafting for the committee.

Justice Baragwanath says that a dynamic, constantly changing society means that courts and rules must also change, but that does not entail a wholesale ditching of the lessons of the past. He notes that the role played by practitioners on the committee is crucial, saying Tom Weston QC, Christopher Finlayson

MARCH 2006

Appointment of QCs: looking at reforms The Attorney-General has announced a further round of appointments of Queenʼs Counsel.

There appears to be broad acceptance that the present process of appointment requires some reform; in particular, the process would benefit from being more structured and more consultation and dialogue between senior judges and senior practitioners.

Judges and the bar see candidates from rather different perspectives.

The former are well placed to assess counselsʼ courtroom performance.

The latter see a barristerʼs performance in the round – that is, how he or she conducts himself or herself in legal practice and whether integrity is a fundamental feature of that practice.

It is therefore timely to review briefly the recent reforms in New South Wales and the United Kingdom for appointment of silks.

I • Justice Baragwanath

and Andrew Beck have contributed many hours of work without payment. Brendan Brown QC has recently replaced Mr Finlayson on the committee.

Justice Baragwanath acknowledges that litigation costs are an “immense concern,” and says that the only perspective from which they can be apprised is that of the litigant. Expense means that litigants are understandably anguished at the prospect of being involved in any proceedings at all. For that reason, the role of ● Cont. on p.3

n New South Wales appointments are no longer made by the Attorney-General. Previously the judiciary had very little formal involvement in the process and the president of the Bar Association, after consultation with senior members of the bar, submitted a list to the Attorney-General. It was very rare for that list not to be accepted, though sometimes the AttorneyGeneral added a name or two of his own.

Today the appointments are made by the president of the Bar Association but only on the recommendation of a committee of five silks and after a very full and closely structured consultative ● Cont. on p.2

Bar Association Newsletter. March 2006. Page 1

Appointment of QCs: cont. from p.1

process. That committee consults with at least 20 other senior counsel, members of the junior bar and with solicitors, including the president of the Law Society. The committee makes a preliminary selection and then seeks the views of the Chief Justice and many other judges, including judges of courts where the candidates may practise.

The composition of the selection committee is changed from year to year and so too are the lawyers who are consulted. The president of the Bar Association changes every two years. All of that, it is said, helps to prevent favouritism or prejudice affecting the decisions as to who should be appointed.

A protocol sets out the features of the system. Unsuccessful candidates are given brief reasons why they did not succeed and are invited to speak with the president of the Bar Association if they want a more detailed personal assessment.

T

he reforms in England and Wales are breath-taking. Since 1999 an application fee must be paid by candidates. The reason given for this reform was that with the passing of the Access to Justice Act in that year, not to charge a fee would have meant that there was a public subsidy of the process – though one would have thought that having QCs is all about improving the quality of justice. The fee was set at £335. By 2005, the application fee had risen to £2115 and, if successful, a further fee of £2250 was payable. That translates to a total of nearly $NZ11,000. That reform, if introduced here, would no doubt have some impact on the number of applicants – last year there were 100.

The applicant must undergo a formal exercise of self-assessment, in which he or she demonstrates or provides evidence of “seven competencies to a standard of excellence necessary for Queenʼs Counsel”. The “notes of guidance for applicants” list these competencies:

1. Is honest and straightforward in professional dealings with all parties.

2. Has expert knowledge of the law and uses it relevantly.

3. Exhibits a “rapid, incisive overview of complex material and identifies the course of action that will produce the best course of action to the client”.

4. Communicates the case in a persuasive manner to achieve the best outcome for the client.

5. Rapidly assimilates implications of new evidence and argument for own case and responds appropriately.

6. Establishes a productive working relationship with the client.

7. Is involved in the preparation of the case and leads the team before the tribunal. Included under this head is a sub-heading: “Aware of own limitations and seeks to ensure that they are compensated for by others in the team”.

In completing this process of selfassessment, specific examples must be given. It is not good enough, it is said, to say: “I always honour professional codes of conduct, behave in a consistently courteous and open way in all professional dealings, and am candid with the client.”

Rather, specific examples of how the candidate behaved at particular times should be given. A template is provided as follows: “I was counsel for the defendant in R. v. Gibbs (Oxford Crown Court, September 20-29. 2003)… I received a note from the defendant that the central prosecution witness would be unsettled if I annoyed her in cross examination, especially given the press coverage that the trial was receiving. There was considerable evidence that the prosecution witness had behaved very unfairly in her business dealings with the defendant. I declined to ask questions calculated only to annoy the witness. Before adopting this course, I asked to see the defendant. I explained to him that it was my professional

obligation to proceed in this way, but also that to proceed otherwise might damage his case in the eyes of the jury, or (to his disadvantage) distract the jury from the content of the questions that I could put on his behalf”.

It is interesting to note the disparity between the number of appointments in New Zealand, New South Wales and Britain respectively. The current number of practising silks in a separate bar in New Zealand of over 1200 barristers is only 59, or less than 5 per cent. By comparison, there are 220 senior counsel in New South Wales in a bar of 1750 barristers, or 12 per cent. On average about 15 silks are appointed each year. In England and Wales there are over 10,000 barristers practising at the bar. About 10 per cent are QCs. ■

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: 09 366 7757 Fax: 09 303 4566 Jonathan Eaton Telephone: 03 372 3466 Email: j.eaton@xtra.co.nz Stephen Kós Telephone: 04 472 9026 Email: jsk@40johnston.co.nz Gené Tibbs Telephone: 03 544 4202 Email: nzbar@xtra.co.nz

Bar Association Newsletter. March 2006. Page 2

NZ Bar Association 2005–2006 Council — Contact details Miriam Dean QC miriam@barrists.co.nz

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

Stephen Mills

Ph: 04 471 0646 Fx: 04 472 0646 P O Box 5454 Wellington

Jonathan Eaton j.eaton@xtra.co.nz

Ph: 03 372 3466 Fx: 03 365 2592 P O Box 13-868 Christchurch

Trevor Shiels

Treasurer Christopher Gudsell ctgudsell@xtra.co.nz

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

Stuart Grieve QC stuart@grieve.co.nz

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

Terry Sissons terry.sissons@xtra.co.nz

Secretary Gené Tibbs nzbar@xtra.co.nz

Ph: 03 544 4202 Fx: 03 544 4206 P O Box 3595 Richmond Nelson

Elizabeth Hall

Ph: 04 939 9039

Matthew Ward-Johnson

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

Adina Thorn

Ph: 09 358 7092 Fx: 09 358 7091 PO Box 1800 Auckland

President James Farmer QC

Ph: 09 358 7090 Fx: 09 358 7091

P O Box 1800

Auckland

Vice-President Mary Scholtens QC mts@mtscholtens.com

jamesfarmer@queenscounsel.co.nz

Continued from page 1

stephen.mills@shortlandchambers.co.nz

trevor.shiels@barristerschambers.co.nz

Ph: 09 307 9820 Fx: 09 307 1572 P O Box 4338 Auckland 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

Big changes in District Court Rules elizabeth.hall@paradise.net.nz Fx: 04 939 9269

P O Box 2557 Wellington

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

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

ward-johnson@tgachambers.co.nz

adinat@xtra.co.nz

Continued from page 1

Big changes in District Court Rules

the District Court as the “peopleʼs court” is crucial.

Justice Baragwanath says a “root and branch exercise” examining District Court proceedings was undertaken in light of the fact that 94 per cent of cases in that court involve no procedural steps after the issue of proceedings. The committee sought feedback on initial proposals for reform, but was advised that these were too radical.

It is now preparing modified, draft District Court Rules which will mean that, in a large number of cases, no paper will be filed at all as the first step in District Court litigation. Instead, the prospective plaintiff will serve papers on the prospective defendant. If no steps are taken by the defendant, proof of service will be filed in court and judgment will be obtained, thereby avoiding cost, delay and unnecessary clutter.

Justice Baragwanath says he is acutely conscious of the urgency of the need to improve District Court procedures and that is the reason he is anxious for the matter to be progressed before his term as committee chair expires.

The committee is also working on reform of the High Court Rules, although it decided not

to do a complete overhaul until the outcome of the District Court project was known. A review of the High Court Rules was carried out by a series of expert groups, with that work in turn being analysed by a steering committee headed

by Dr Don Mathieson QC. Four staff members in the Parliamentary Counselʼs Office are now revising the High Court Rules. Justice Baragwanath says he anticipates that many current rules will be retained, but “spring cleaning, recasting and reordering” are taking place.

I

mportantly, he says that major gaps in the rules have been discovered. One of these relates to rules dealing with information technology, which other jurisdictions have introduced more speedily than has been the case in New Zealand. Infrastructural change will be required to the rules to enable them to deal with the internet era.

Making provision for the use of computer technology would improve efficiency and reduce costs in relation to filing, service and searching of documents.

Practitioners could file documents online if the infrastructure were available and the committee considers it is important that it be provided.

Another shortcoming in the rules relates to cross-border litigation.

He notes that courts internationally are still generally treated by rules, legislation and procedures as domestic forums, rather than as forums equipped to deal with cross-border transactions. He says complementary and seamless court arrangements are required to deal with international disputes.

A committee comprising Professors Campbell McLauchlan and Tony Angelo as well as former Wellington barrister and now National MP Chris Finlayson prepared a report on that issue, which has now been adopted by the High Court Rules Steering Committee. A new part in the revised rules will deal with crossborder issues. A cross-border standing committee is also being set up to monitor future developments in this field.

Justice Baragwanath says ongoing business law harmonisation between New Zealand and Australia also has implications for the rules.

The New Zealand Ministry of Justice and the Australian Federal Attorney-Generalʼs office are continuing work on reciprocal arrangements between the two countries. One example is the ability of the courts in each country ● Cont. on p.4

Bar Association Newsletter. March 2006. Page 3

Continued from page 3

Big changes in District Court Rules

to sit in the other country when dealing with commerce and trade practices matters.

Justice Baragwanath believes that precedent could be extended much further.

New Zealand is also participating in trans-Tasman work relating to Mareva Injunctions and Anton Piller orders, with the Australian members endorsing Rules Committee member Justice Fogartyʼs proposal that issues relating to privilege contained in clause 55 of the Evidence Bill at present before Parliament be included in this exercise.

T

he committee in March 2005 issued a paper proposing amendments to the High Court Rules relating to miscellaneous matters such as the meaning of the term “working day,” the introduction of skeleton arguments for defended interlocutory applications, affidavits in foreign languages, and notice of intention to speak Maori in proceedings.

Other issues covered included new and amended rules for the entry as judgment of arbitral awards, the introduction of a new category for costs in proceedings relating to statutory demands and the removal or continuation of caveats. Those changes were endorsed at the committeeʼs February meeting, and will take effect on April 1, 2006.

The committee is also conducting an exercise relating to costs in public law litigation. He says that if a public body is not complying with the law, in principle the law ought to take steps to remedy this.

However, normal proceedingsʼ costs may prove crippling to those wishing to take steps to call the public body to account.

Judicial decisions in both England and New Zealand have touched on the problem. The committee wishes to try and introduce a systematic approach to this problem. The Attorney-General

Council plans submissions The Council at its last meeting discussed the proposed changes to District Court Rules, particularly with the continuation of the trend towards front-end loading of the costs of litigation. It has some major reservations with the bill and will be making submissions.

has been advised of the committeeʼs view that reform is required.

Justice Baragwanath says the Rules Committee has jurisdiction to deal with rules relating to criminal procedure, but has taken few steps in this regard in the past.

A sub-committee chaired by Justice Panckhurst has now been set up to take responsibility in this field.

Currently the Rules Committee itself is in the early stages of examining the vexed question of the interface between efficiency and justice when criminal appeals before the Court of Appeal are adjourned when the appellant argues that he or she has been let down by counsel and a waiver of privilege must be obtained.

The committee on November 1, 2005 released a consultation paper seeking responses to proposed changes to Rule 82 of the High Court Rules arising from statutory changes introduced by the Criminal Procedures (Mentally Impaired Persons) Act 2003 and the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

The deadline for submissions was January 23, 2006.

Justice Baragwanath says a very perceptive submission was received from Ministry of Health Director of Mental Health, David Chaplow, and Chief Adviser Disability Services, Lester Mundell, drawing the committeeʼs attention to English and Australian cases dealing with these issues. The thrust of both of the cases and of the submission was that a single, broad approach was not appropriate in such cases.

Each person must be treated on his or her own merits in line with human rights requirements and the dignity of the person. As a result, says Justice Baragwanath, the committee intends to meet with Dr Chaplow and Mr Mundell to discuss these issues in depth.

The work of the Rules Committee is, in short, very important for the efficient administration of justice for the courts, practitioners and parties. Feedback from the profession is always welcome. ■

New Zealand Bar Association Scholarships The New Zealand Law Society is holding its annual Litigation Skills Programme at Lincoln University, Christchurch, from Sunday 20 August to Saturday 26 August 2006.

The New Zealand Bar Association is once again delighted to offer scholarships for two young barristers to attend this invaluable programme. The scholarships will include full payment of the fee.

Further details relating to the New Zealand Bar Association scholarships are included in the NZLS brochure.

Bar Association Newsletter. March 2006. Page 4

A measure of success Setting up practice is never an easy task.

Providing clients with quality representation is paramount to securing future success. Accuracy and availability can make all the difference when searching for legal information.

Get results that you want, experience real power and flexibility

It is a well established fact that online research enables a researcher to access the most up to date information in the shortest amount of time. The LexisNexis® NZ is a practical and flexible online service that allows the busy barrister to search or browse key LexisNexis publications. Its unique customisable interface ensures the service suits their personal working style.

Itʼs easy to tailor a package to your requirements

With the technology and platform well established, the next step is choosing a package that meets wide range of research needs of legal practitioners.

LexisNexis developed the LexisNexis® Select 12 and LexisNexis® Select Advantage barrister packages and solutions to meet the ever increasing demands for the latest legal and business information, based on feedback from our customers.

With LexisNexis® Select 12, select 12 authoritative titles from a choice of over 35 individual publications - spanning many areas of the law; and a host of in-depth legal research and reference works. While LexisNexis® Select Advantage provides access to complete collection of works that would rival even the best law firms and library holdings in the country.

The range includes premium publications such as: New Zealand Law Reports; New Zealand Forms and Precedents; Cross on Evidence; Family Law Service; Morison’s Company and Securities Law; Laws of New Zealand

Weʼre here to help you

Together with an Account Manager tailoring a solution to suit an individualʼs needs is easy. It doesnʼt end there - with a team of highly experienced training consultants and a telephone helpdesk available at no additional charge, there is always help at hand.

Subscribe to a LexisNexis® Select Package that is right for you, and as a member of the New Zealand Bar Association receive additional savings and benefits on a range of LexisNexis products and services. Measuring success has never been easier. Contact 0800 800 986, email Customer.

Service@lexisnexis.co.nz, or visit us on www.lexisnexis.co.nz.

Bar Association Newsletter. March 2006. Page 5

Report from the president The Council has continued to work diligently on a number of fronts and I am happy to report here on current outcomes.

by the AGM. The theme of the conference will be Evidence. A programme has yet to be finalised but it is likely to include:

Discounted mobile telephone, stationery and other products and services

◆ Issues arising from the new Evidence Bill; ◆ Current practical evidential issues; ◆ Problem areas of evidence, including the use of documentary (and electronic) evidence.

The bulk buying scheme is now launched! Details of the hugely discounted products and other services are fully set out in a letter and package that are shortly to be sent to you. I encourage you to take advantage of these discounts.

Conference – Queenstown – Weekend September 1-3, 2006 – Rules of Evidence As a result of the survey results this year’s conference will take place in Queenstown on the weekend of September 1-3, 2006. Of the 195 questionnaires which were returned, 132 voted Queenstown as first and second choice, 117 voted Napier first or second choice, and 104 voted Gold Coast as first or second choice. The raw results are set out in the table below.

Last year we were fortunate to have Professor Jack Greenberg from New York and Justice Bastarache from the Canadian Supreme Court. Again, we are hoping to have overseas speakers including an appellate judge and senior counsel from Australia.

Our attendance of 100 last year was the largest ever. We hope that this yearʼs will be even larger. As always, it is advantageous to book airfares early. At the time of writing return fares to Queenstown are from (plus taxes etc): Auckland Hamilton Christchurch Wellington

1st preference choice

2nd preference choice

3rd preference choice

Queenstown

82 (42%)

50 (26%)

40 (21%)

Gold Coast

59 (30%)

45 (23%)

69 (35%)

Napier

54 (28%)

63 (32%)

51 (26%)

37 (19%)

35 (18%)

No choice

The Council has decided to change the venue to the newly-refurbished Crowne Plaza (formerly the Park Royal), which is immediately opposite Lake Wakatipu. It is believed that this will provide better services and value for money.

On the Friday night, there will be drinks followed by an informal dinner (partners welcome) and there will be a more formal dinner on the Saturday night.

Both dinners will be held at the hotel.

The seminars will take place on Saturday followed

Next Newsletter publication date: Mid-June 2006

- $258 - $417 - $184 - $333

I look forward to seeing you there.

New appointments to Supreme Court and Court of Appeal

On 21 February 2006, Attorney-General David Parker announced the appointment of the Hon. Noel Anderson as a Supreme Court Judge and the Hon. William Young as President of the Court of Appeal.

We congratulate them both.

I wish you all the very best for 2006.

Jim Farmer QC President, NZ Bar Association

Dates and locations for Council meetings Proposed dates and locations for this year’s Council meetings are as follows:

12 April 15 June 1-3 September 12 October 30 November

– Tauranga – Christchurch – Conference – Auckland – Palmerston North

Bar Association Newsletter. March 2006. Page 6

OBITUARY

Robert Fardell QC: Larger than life

by Justice Rhys Harrison Robert John Fortescue Fardellʼs legal career started with Weston Ward & Lascelles in Christchurch in 1974. He was employed in the conveyancing department. He occupied a small booth behind the reception area and specialised in Housing Corporation mortgages.

The highlight of his working week was access to Fridayʼs free cheese scones. He shared this passion with his fellow employee, my colleague John Fogarty, but with diametrically different anatomical results.

Robert and his new wife, Kate, started their migration northward in 1976. He was briefly a partner in Rout Milner & Fitchett in Nelson before joining Crown Law in 1980.

I first met him the following year. He struck me as bearing an uncanny likeness to David Lange, both in appearance and in manner; quick, clever, with presence and a ready, self-deprecating sense of humour.

On that occasion I appeared for John Minto in the Court of Appeal. Robert announced that he represented the Crown. I assumed he was there to oppose because he said he was. He opened by observing that he had never read such an impressive probation report. The President, Sir Owen Woodhouse, agreed. Their joint tribute to my client followed. I was relegated to the rank of an onlooker with nothing to say in reply. The appeal was instantly allowed.

While distinctively novel for a Crown counsel, Robertʼs approach was a mark of the innate qualities of fairness, independence and judgement which were to characterise his professional life.

They were exemplified during his short partnership in Meredith Connell, the Crown Solicitors in Auckland, between 1984 and

1986. He earned a reputation there as a formidable prosecutor in the best traditions of the office – firm, persuasive and balanced but never personal with defence counsel or over-zealous for a conviction.

Robert was a partner in Russell McVeagh McKenzie Bartleet from 1986 to 1999, where he adapted his skills from criminal to civil and commercial work. He brought an instinctive appreciation of legal

NZBA CONFERENCE 2006 It is planned that the Annual Bar Association Conference will now take place on the weekend of September 1-3.

The venue is Queenstown (Crown Plaza) and the theme will be Evidence.

Mark your diaries and book your flights now. principles coupled with an equally instinctive understanding of the rules of evidence.

He was effective in sidestepping the interlocutory warfare which characterised litigation in those times and cutting to the heart of a case. During one appearance in the Court of Appeal he abandoned an 80-page synopsis of submissions prepared by his juniors, relying instead on his own six page note (Taylor Bros. Ltd v Taylors Group Ltd [1988] 2 NZLR 1).

Unfortunately neither the long nor the short version carried the day.

Robert established a powerful presence in commercial and regulatory work. The breadth and success of his practice are recognised in the official reports in the late 1980s and the 1990s. But two cases, neither reported, justify special mention.

The first was Robertʼs lasting contribution to the Devonport community in which he lived and which he loved. In 1997 the then Minister of Conservation decided to make available an area of 28 acres known as Fort Cautley to private interests for housing purposes.

The land is a beautiful coastal promontory about a kilometre long and linking Narrow Neck and Cheltenham beaches in Devonport.

Even though it enjoyed reserve status, the defence forces had used the area for accommodating naval ratings but, by 1997, no longer required it.

A group of local residents protested the Ministerʼs decision and approached Robert to lead a formal challenge. Russell McVeagh agreed to act pro bono. An application was made at the High Court at Auckland.

Anderson J agreed; he found the Ministerʼs decision declaring the land not to be a reserve was unlawful (The Tamaki Reserve Protection Trust Incorporated v Minister of Conservation, CP600/97, Auckland Registry, unreported, March 12, 1999). As a result, the area is now a scenic reserve known as Fort Takapuna, and an eternal legacy to the work of Robert and others.

T

he second case was an appeal to the Privy Council. Robert had represented Air New Zealand successfully in the Court of Appeal (Air New Zealand Ltd v Nippon Credit Bank Ltd [1997] 1 NZLR 218). Having weathered Julian Miles QC in that forum, Robert found himself facing Jonathan Sumption QC in the Privy Council.

Mr Sumption is described by his clerk as the cleverest man in England, and he is probably right. His skills are legendary.

According to Robert, one law lord dared to question Mr Sumptionʼs argument by reliance on a passage from Treitel on Contract. Without ● Cont. on p.8

Bar Association Newsletter. March 2006. Page 7

Obituary: Robert Fardell QC.

pausing Mr Sumption sniffed that nobody reads Treitel these days. Air New Zealand was successful on an unusual 3:2 split decision.

source of inspiration, companionship and fun for his younger colleagues, particularly Chris Morris and Davey Salmon.

Robert went to the bar in 1999.

He was appointed a silk in 2002.

His practice continued to flourish.

He remained at home in all areas of the law. He led civil cases in all forums. He also prosecuted for the Crown and Serious Fraud Office.

Kate was his best friend. They shared many personal qualities and interests. Her love, care and support played a significant part in his professional success.

He appeared as senior counsel in three leading Privy Council appeals.

My colleague, Raynor Asher, appeared as opposing counsel in one (Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 NZLR 289). He speaks with admiration of Robertʼs performance at that level, and of his professionalism and collegiality following a bitterly contested commercial battle.

T

Robert was larger than life in all ways. He was a dominant, charis-

Cont. from page 7

matic personality in our legal landscape for 20 years. He was the consummate advocate. He had enormous capacity and reserves of intellectual energy. When Robert died in December 2005, in the sea below Fort Takapuna, he was at the peak of his powers. The attendance at his funeral marked the love and respect of his colleagues, his friends and his community. The world, the law, and Devonport are sadder places without Robert Fardell. ■

Daily recovery rates amended The High Court Rules Committee has approved an amendment to the daily recovery rates, which are set out in schedule 2 of the High Court Rules. This

amendment will take effect from April 1, 2006.

At the time of writing the amended daily recovery rates are not known.

he law was Robertʼs raison dʼêtre, even his obsession. To accommodate it, he developed the art of simultaneously speaking into a dictation machine and conversing on a cellphone while seated on the Devonport ferry, and perfected an informal global positioning system well before the technology companies. Often he could be seen ambling with his dogs around the streets of Devonport, his head (but not theirs) buried in an affidavit or pleading, headed straight for a lamp post. At the last moment Robert would sidestep two or three paces, without looking up, and continue on his way. On one occasion, though, the system failed, with painful consequences for Robert and a tree.

The Criminal Bar Association has asked that the following notice (sent to its members) be drawn also to the attention of members of the NZBA.

And my daughter, Ellie, remembers his practice, whenever he stopped at Whiteʼs Dairy, of buying two ice creams; one for himself and one for his dog. She thought it was kindness; Kate describes it as guilt sharing.

The Bill can be accessed at and printed out from www. legislation. govt.nz

Robert was a very private, humble, self-effacing even enigmatic man. I remember particularly his warmth and humanity. He was the

CRIMINAL BAR ASSOCIATION DELETE PART 5 “Committal proceedings for indictable offences” CAMPAIGN Members are advised that the Criminal Procedure Bill was included in the successful carry forward motion to the new Parliament on 8 November.

There is a real chance of defeating Part 5 “Committal proceedings for indictable offences” which will restrict and for all intents and purposes abolish depositions hearings. There are reasonable grounds for believing that National and NZ First will oppose part 5. Unfortunately those two parties even in combination are not enough.

What we need is a concerted campaign to delete (not modify) Part 5. It is critical that we persuade the minor parties other than NZ First.

The most effective means will be for individual members of the Criminal Bar Association to visit their own MPs in person (even those of the major parties). If that cannot be managed at least members should email their MPs. Members are called upon to make an appointment to see their MP as a matter of urgency.

Peter Winter President Bar Association Newsletter. March 2006. Page 8

Roundtable meeting for High Court stakeholders

T

he Auckland High Court has quarterly meetings for key stakeholders (or interest groups) which have an interest in the operation of the court. A representative of each interest group (such as the Police, Chubb Security, Mt Eden Prison and the Auckland District Law Society) is given the opportunity to discuss issues concerning the management of the court with the other representatives, a judicial representative, and the manager of the court. The judicial representative may also raise issues with the representatives of the various interest groups. Alan Sorrell is the Bar Associationʼs

representative at these meetings.

3. Unless the court directs otherwise, if no hearing date has been allocated, a hearing date must be allocated at the second conference (whether or not any interlocutory applications are outstanding) (R. 434(2)). Counsel should be prepared for this.

At the November 2005 meeting, Associate Judge Abbott raised the following issues on case management conferences: 1. In some cases memoranda are not being filed more than two working days before the conference (R. 429(3)).

2. There have been a number of cases when counsel have thought that the conference was by telephone and the court thought it was in person. If counsel are unsure, he/she should check with the court.

In respect to applications for adjournments, His Honour noted that some counsel have been applying for an adjournment of trial without providing any reasons (R. 480). Reasons for an adjournment must be provided.

■

LexisNexis offering conference discounts LexisNexis has agreed to provide certain discounts to members for attendance at their conferences (or access to all the papers and attendance at some selected sessions). Conferences to the end of next month include: March 23: Fifth Annual Local Government Legal Forum. Members pay $268 plus GST on same terms above.

March 24: Second Annual Environmental Law. Members pay $268 plus GST on same terms above.

March 30 and 31: Fourth Annual Property Relationships Master Class. (Members can qualify for a 15 per cent discount).

April 4: Second Annual Property Advisors Update. Members pay $268 plus GST on same terms above.

April 5: Building and Construction. Members pay $268 plus GST on same terms above.

April 27: Civil Litigation Skills Accelerator. Members pay $486.50 plus GST (a 30 per cent discount).

April 28: Damages and Remedies. Four hours. Members pay $296.25 plus GST (a 25 per cent discount).

Contact Ellen Delaney, phone (09) 486-9572, for further information.

Bar Association Newsletter. March 2006. Page 9

Bar Council: what happened at the February meeting ...

T

he Councilʼs first meeting of the year was held on February 9, in Wellington. Apologies were received from Jonathan Eaton, Elizabeth Hall and Terry Sissons.

The Associationʼs accountants have completed the accounts for the year ending September 30, 2005.

These accounts will be presented to members at the next annual general meeting.

It has been agreed to offer members the option of paying subscriptions and registering for functions via internet banking.

An administrative committee of Jim Farmer QC, Miriam Dean QC and Christopher Gudsell has been formed to review the administrative needs of the Council.

The schedule of meetings for 2006 has been finalised and is printed elsewhere in this newsletter.

Queenstown has come out on top again for the preferred venue for this yearʼs winter conference.

There was a lengthy discussion on suggested topics and speakers and also a change of date to avoid a clash with the NZLS Litigation Skills Programme. Please note your diary that the conference will now be held over the weekend September 1-3, 2006. Further details will be sent to members as soon as they are finalised.

Bulk buying was also on the agenda and Miriam Dean QC was thanked for the enormous amount of work she had carried out to date.

Bulk buying privilege details will be sent to members shortly.

As there is a need to take greater interest and be more influential at the early stages, a request has been made to have full representation on the High Court Rules Committee.

Bar Chat ...

The Council has requested to have full input into the District Court Rules — see the membersʼ area of the Associationʼs website.

Jim Farmer reported on a meeting with the Attorney-General he attended with Stuart Grieve and Mary Scholtens. Jim Farmer also advised that he had met with the president of the New Zealand Law Society, Chris Darlow, and the executive director,Alan Ritchie, and it was their intention to meet regularly.

The issue of judge undertakings (particularly in the District Court) not to practise after retirement or resignation was discussed.

The Association will be offering two full scholarships for the NZLS Litigation Skills Programme.

Information relating to these scholarships will be printed in the NZLS brochure relating to the programme.

The Association has been asked to join AMINZ to host a oneday seminar in conjunction with ICCNZ and the Construction Law Association which will be held mid-year. The concept is based on the International Bar Associationʼs annual Arbitration Day. Members will be provided with details as they come to hand.

Items for discussion at the next meeting include training/pupillage and continuing education, the intervention rule, barristers “employing” barristers and the website.

The NZBA welcomes new members to the independent bar and Association: Paul David, Auckland Lisa Halford, Auckland Judith Moorhead, Auckland Alan Welsh, Auckland * * * * *** A very successful bar dinner was held at the Wellington Club to mark the appointment of Helen Aikman QC (2005) and Francis Cooke QC (2004) to the inner bar. The Solicitor-General proposed the toast and had some sage advice for both Helen and Francis. He especially commended the silks to train themselves in “the skills of quick recovery” or “in boxing terms, the need to develop a counter punch”.

This was illustrated, he said, when he appeared as junior counsel to a leading commercial silk in the Court of Appeal many years ago.

The silk was in full flight – often a “worrying thing for junior counsel” as he put it! At a particularly impassioned moment of his address the silk knocked over his glass of water and it spilled all over his, and his juniorʼs, papers.

Without missing a beat he turned and looked down at the water covering the desk, looked at his junior, and said, “What did you do that for?” So the poor junior turned deep red, and was left speechless and hopelessly embarrassed.

As the Solicitor-General says, “Quick recovery is a cardinal virtue”!

■

The next meeting will be held in Tauranga on April 12, 2006.

 • Helen Aikman and Francis Cooke Bar Association Newsletter. March 2006. Page 10

Nigel Hampton QC packs up and moves to fresh practice fields C hristchurch Queenʼs Counsel Nigel Hampton left his office in Durham Street for the last time with little fuss or fanfare. After a glittering 40-year legal career, Mr Hampton has decided to pursue his love of the law, and of life in general, in a different way. It is not a retirement as such, but rather a change of focus. Mr Hampton says he believes courtroom law is largely a young personʼs game.

“You find yourself getting tired more easily and your memory starts playing tricks with you. Mostly you survive on the quickness of your wits in court. You live or die by that, and I felt it was probably time to step back a bit. I did try to see if I could ease up a little and go into a sort of semi-retirement. However, I have learned in the last three or four years that it does not happen that way. You are either fully engaged as a litigator or you are not.”

Mr Hampton says he will initially continue practising from home, but is unsure what his practice will consist of. He has accordingly had discussions with the University of Canterbury about assisting in teaching advocacy skills.

H

e says packing up his files and going through dusty manila folders has evoked a curious mix of emotions, including nostalgia in recalling times and trials past.

“The detail of them tends to slide by you until you pick up the file and then it suddenly becomes very alive again. I would quite like to go back and revisit many of them to see how gauche I was, but whether I will actually get round to it or not is a different matter. “ Mr Hampton says he never intended to be a litigator. In fact, it was the furthest thought from his mind when he joined Young Hunter. However, he was quickly groomed as a common law clerk

and enjoyed it, listening to trials in the Supreme Court.

“That was part of your role.

You were told to get down to the court and listen and learn. Within a week or two of admission I was thrown in at the deep end by doing a criminal trial in the thenSupreme Court. Your first trial is always memorable, I suppose, if only because I was such a nervous wreck.”

Mr Hampton says the cases which stand out in his memory are the ones which made his public reputation as a defence lawyer.

“The trials that you think of are the ones that probably shaped my public reputation, and so I think of some of the early murder trials.

Such trials were comparatively rare in those days and attracted a lot of publicity. They were reported fully by the print media, almost verbatim in terms of evidence, cross-examination, speeches, everything.”

Mr Hampton says the situation

Todayʼs public ʻdoes not get a proper view of how cases are run and the issues that are presented ...ʼ is vastly different today, with reporting of cases generally involving opinion and emotional reaction. He believes that is a shame, as the public does not get a proper view of how cases are run and the issues that are presented to judges and/ or juries. All the public obtains is a reporterʼs somewhat subjective reaction to a particular piece of evidence or emotion.

Young Hunter was largely a litigation firm then, and Mr Hampton did a lot of personal injury work in

• Nigel Hampton

pre-ACC days. One murder case he recalls involved a man called Ronald David Bailey who was accused of drowning his wife in the Grey River. Mr Hampton and Nick Davidson conducted the defence, and the accused was acquitted.

Another case concerned Gerald OʼBrien, the senior vice-president of the Labour Party. He was found badly beaten on a Christchurch street and had been robbed. The police found the young men involved, and they made claims of indecent assault against Mr OʼBrien.

“It was one of those extraordinary cases where I ran the depositions really hard in the then-Magistrateʼs Court in front of Crutchley SM. I gave the lads a bit of a going over in the witness box with the result that Crutchley discharged OʼBrien.

He would not commit him for trial on the basis of what I had extracted from the boys.”

M

r Hampton says he has no problem reconciling his skill with the fact that it may lead to guilty people walking free.

“If you accept that, and I think you have to if you want to be in this line of work, a defence is a necessary part of the process, part of that process is that you are there, certainly in those days, as the only person standing up for the accused ● Cont. on p.12

Bar Association Newsletter. March 2006. Page 11

S

Witness coaching earns sharp rebuke from Court of Appeal in N.S.W.

trong statements on the unacceptability of witness coaching have been delivered by the New South Wales Court of Appeal, which also took the unusual step of referring its judgment to the Legal Services Commissioner to investigate whether he should initiate a complaint against the two solicitors involved.

In Day v Perisher Blue Pty Ltd [2005] NSWCA 110 Darrel Day appealed against a District Court decision dismissing his claim against his employer Perisher Blue Pty Ltd, which operated a ski resort. Mr Day claimed that on or about August 7, 2000, in the course of his employment by Perisher Blue as a lift operator on the Cowpasture j-bar, he was struck by a skier while loading skiers onto the j-bar.

Mr Day alleged that the skier had come down an adjacent slope and skied through the ski school

line into him at speed, injuring him. He claimed that the defendant had failed to exercise reasonable care for his safety, resulting in the injury.

The District Court judge gave judgment for the defendant, holding that it had not been established that there was a breach by the defendant of its duty of care. Mr Day appealed.

Two of the grounds of appeal were that the judge had erred in his reliance on the respondentʼs witnesses, given the improper coaching of those witnesses, and that he had failed to give reasons or sufficient reasons for rejecting the appellantʼs submission as to the unreliability of the respondentʼs witnesses, given the coaching of those witnesses.

The Court of Appeal allowed the appeal, setting aside the verdict and judgment in favour of the defendant and ordering a new trial

Nigel Hampton QC: against the might of the state.

Disclosure was not in existence in my early days and you very much felt that you were alone and that the accused was entitled to a defence.

The presumption of innocence runs in his or her favour. I did not have a difficulty with it and in your own mind you see it as very much a game, a sporting contest as it were, in which the odds are overwhelmingly against you and your client.”

Mr Hampton says that is the joy of the process, and the reason why the litigator wants to win. It is part of the motivation which keeps defence counsel going and working long hours. He says he takes losses personally because he plays on a personal level. He hates losing a rugby game, and also hates losing a court case in which he has invested so much of himself.

cont. from p.11

However, the cases which really hurt are ones in which defence counsel forms the view that the client is innocent, he says.

“Those are continuing hurts, and not just because of your personal hurt from a contest that you did not want to lose. It is more the sense of hurt that follows from what you perceive as a continuing injustice.

There have been a number of those over the years. It was interesting to see surfacing again recently the suggestion of some commission that would review, or have the ability to independently review, disputed convictions. That is something that the British did a while ago and I think it is something we desperately need here.”

This is an abridged version of an article by Todd Nicholls which appeared in “Canterbury Tales”. It, with the photograph, is reprinted with their permission.

of the proceedings. It also gave the defendantʼs solicitors seven days to show cause why the judgment and appeal papers should not be referred to the Legal Services Commissioner.

The complaint of witness coaching arose as a result of a teleconference of the witnesses for the defendant, during which there was a detailed discussion of the evidence they were expected to give, as well as other discussions between witnesses about their evidence, and a letter from the defendantʼs solicitors to the witnesses, giving them detailed instructions as to their evidence.

The witnesses were also provided with a memo — whose author was never established — headed “Witness Protocols for Court Cases and Arbitration Hearings,” which contained statements such as “Lawyers lead you up the garden path then shut the gate behind you,” and “Lawyers are there to destroy your credibility not establish the facts.”

T

he letter from the solicitors described the teleconference as giving the witnesses an opportunity “to understand better the court process and what will be expected of them.” In relation to one witness, the letter said his evidence would be to “simply refute the allegations that the design and layout of the lift queue at Guthega on the day in question was not consistent with the best practice at Perisher and resorts elsewhere in Australia and overseas.” It also asked the witness to familiarise himself with distances “so he is not open to crossexamination on areas where he has only been prepped by ourselves or Perisher Blue.”

The plaintiffʼs solicitors described the letter as “extraordinary” and said the witnesses had been ● Cont. on p.13

Bar Association Newsletter. March 2006. Page 12

Cont. from page 12

Witness coaching earns sharp rebuke

subjected to inappropriate pressure and suggestion from various persons as to the nature of their evidence. They further criticised what they described as “a lack of frankness” about the discussions between the witnesses.

“While from time to time a witness in a case may speak to another witness not realising the significance of what he or she is doing, it is quite a different matter when solicitors acting on behalf of the defendant encourage this sort of behaviour and provide written instructions to witnesses as to what is expected of them.

Further, it is quite a different matter when persons in management positions with a major corporation (presumably not unaware of the exigencies of litigation) encourage witnesses to fashion their account of events in such as way as to advance what is perceived as the corporationʼs interest.”

J

ustice Shellar accepted those criticisms, saying the District Court judge had failed to deal with these submissions of the plaintiff, thereby failing to have regard to critical evidence.

“It has long been regarded as proper practice for legal practitioners to take proofs of evidence from lay witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly not with other potential witnesses. For various reasons, witnesses do not always abide by those instructions and their credibility suffers accordingly. In the present case, it is hard to see that the intention of the teleconference with witnesses discussing amongst themselves the evidence that they would give was for any reason other than to ensure, so far as possible, that in giving evidence the defendantʼs witnesses would

all speak with one voice about the events that occurred,” said Justice Shellar.

“Thus, the evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true. This seriously undermines the process by which evidence is taken. What was done was improper. The process adopted was more concerned with ensuring that all witnesses gave evidence which would best serve their employerʼs case. This realisation makes particularly sinister the precept in the Witness Protocols for Court Cases and Arbitration Hearings, ʻNot about facts about credibilityʼ.”

After allowing seven days for the solicitors for the defendants to make submissions as to why the judgment and appeal papers should not be referred to the Legal Services Commissioner, the court issued a second judgment. Affidavits had in the interim been filed by the two

solicitors involved. They stated that they did not understand the teleconference to be for the purpose of witnesses discussing amongst themselves the evidence they would give at trial. They also denied any intention to ensure that the witnesses would all speak with one voice about the relevant events.

Counsel for the solicitors argued that the court should defer any decision to refer the judgment and appeal papers until after the proceedings between the parties had been resolved. However, the court decided that the reference should be made immediately, directing the Registrar to refer the documents to the Legal Services Commissioner so that he could investigate whether a complaint ought to be initiated against either practitioner.

● The theme of this yearʼs New Zealand Bar Association conference will be Evidence, and one of the sessions will discuss witness briefing.

New Zealand Bar Association president Jim Farmer QC (left) and his predecessor Robert Dobson QC at the bar dinner in Wellington for two new silks, Helen Aikman and Francis Cooke.

Bar Association Newsletter. March 2006. Page 13