NZBA Newsletter September 2005

New Zealand Bar Association THE OFFICIAL BAR ASSOCIATION NEWSLETTER SEPTEMBER 2005

Advocates or authors ?

Have written submissions killed off the art of oral advocacy ?

Speakers debated that issue at the opening session of the New Zealand Bar Association conference. Chair and Queen’s Counsel, Richard Craddock, said the best advocates were often hard pressed to describe how they achieved their success.

Advocates were in the business

Conference 2005:

Special issue

of structuring, preparing and presenting cases to win them and attention to the fundamentals was critical.

However, he questioned the growing trend by courts to require written submissions, asking, “Are we advocates or are we authors?”

That query was echoed throughout the session, as speakers, and later participants, discussed the merits of written submissions and whether they should be restricted in length. ● Cont. on p.2

In this issue . . .

Oral advocacy p.1, 2, 3, 9 Jack Greenberg p.1, 3 Asher J. p.4 Editorial p.4 ADR evaluated p.5 Practice modes p.5, 6 Supreme Court p.7, 8 President’s report p.9,10,11,12 Council meetings p.12 Survey results p.13, 14 John Allen QC p. 14, 15 Bar chat p.15 Council members p.16

● Professor Jack Greenberg and his wife Debbie

Conference guest speaker helped shape history J

ack Greenberg is a true Renaissance man. From civil rights to cuisine, he has throughout his life turned his hand to a range of passions and proved himself a high achiever in a number of fields. His accomplishments are now being recognised in a film of his life to be made by New Line Cinema, with the script to be written by the writer-producers of the political drama The West Wing.

Professor Greenberg made his first trip to New Zealand in August as a Legal Research Foundation visiting scholar. He was also a keynote speaker at the New Zealand Bar Association Conference last month.

Professor Greenberg is one of the most famous lawyers in America, still celebrated for his advocacy in the landmark civil rights case of Brown v Board of Education in 1954. That Supreme Court decision declared unconstitutional the “separate but equal” policy of

segregating public schools by race.

It also set off a chain of events which reverberated around the United States for some 30 years and led to some of the greatest achievements of the civil rights movement.

Reflecting 50 years later on the impact of the decision, Professor Greenberg said that he had only recently come to understand clearly Brown’s transformative role:“Like other watershed examples of litigation designed to achieve a social goal, Brown is an example of the law of unintended consequences.

Those who brought it, including myself, at first saw Brown only as a means of desegregating schools.

True, we believed and hoped that, if we won, it would be a precedent leading to further changes in the law and that eventually it would refashion society. But we did not foresee how that would come about.”

The reaction to the decision ● Cont. on p.3

Bar Association Newsletter. September 2005. Page 1

Bar Association Conference Cont. from page 1

Advocates or authors?

Columbia University Professor of Law, Jack Greenberg, opened the session focusing rather, however, on the broader theme — how to present one’s case effectively. He advised counsel always to present a court with a range of options — the broadest one would reflect the decision for which the client hoped. But a narrower one would still allow the client to win even if the court was not prepared to go as far as the client wished.

An example of this was the American school desegregation cases which began with the Supreme Court decision in Brown v Board of Education in 1954.

Professor Greenberg said counsel had realised that those cases could be won on two grounds. The first was that the buildings, teachers and equipment in black schools were inferior and therefore unequal. The second was that segregation was unconstitutional.

The professor said there had been a possibility the courts might not uphold the second argument because of concerns about its formidable political implications.

The cases had accordingly been presented on both grounds, with the first argument offering the court an easy way out if it decided not to go as far as ruling segregation unconstitutional.

In the event, the court accepted the broader proposition and ruled that segregation was unconstitutional.

Another illustration of this was the transport desegregation cases.

They had been argued, first, on the broad ground that requiring blacks to sit in one part of the bus was a denial of equal protection before the law, but also on the narrower ground that the requirement was a burden on interstate commerce as

buses would lose time by halting to allow blacks to transfer to the back when they crossed into southern states where segregation laws applied.

Q

ueen’s Counsel Julian Miles echoed Mr Craddock’s view about the mystique of advocacy, stating that it tending to be instinctive. At its heart, he said, lay the truism that advocacy was all about persuasion. Judges were there to be persuaded over the period of the case that there was only one conclusion to be reached.

Mr Miles said that personal integrity was probably the most important asset of any litigator. It commenced on the day of counsel’s first appearance in court, and ended at the last appearance. “Ultimately, if you’ve built up a sense of trust with the judiciary over the years, it is a priceless weapon.” It was not simply that it was unethical to mislead the court. “ It is dumb. It always gets found out.”

Mr Miles said one of the classic ways that counsel often misled the court was by taking judges to a particular legal proposition and then stopping prior to the next paragraph which set out the provisos, exceptions and qualifications.

have and should never be underestimated. The opening was an opportunity, he said, to frame the case so that the judge saw it through the plaintiff’s eyes. The case should be reduced to the crucial issues in the opening. There should not be too much factual detail as the litigator, at that point, could not be sure that his/her witnesses would come up to brief. Counsel accordingly required a fallback position, and understatement was better at this stage of the trial.

“One of the most effective forms of advocacy is to underplay your case.”

Mr Miles said written submissions were now required at every level, but there were no set rules about them. Counsel should be mindful that, in the High Court, judges were often still grappling with the issues. High Court submissions ● Cont. on p.3

EDITOR Catriona MacLennan Telephone: 09 378 0964 Email: catmac@clear.net.nz EDITORIAL COMMITTEE Miriam Dean QC Convener Telephone: 09 377 8959 Email: miriam@barrists.co.nz

“You have gone backwards.

The judge immediately becomes suspicious.”

Marian Hinde Telephone: 09 366 7757 Fax: 09 303 4566

Facts, he said, were truly the most important part of litigation and mastery of the facts was an essential prerequisite to successful litigation.

The way to lose cases was simply not to be on top of the facts.

Jonathan Eaton Telephone: 03 372 3466 Email: j.eaton@xtra.co.nz

Litigators acting for the plaintiff should take full advantage of the opening address. It was the most powerful aid a plaintiff could

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. September 2005. Page 2

Bar Association Conference Cont. from page 2

Advocates or authors?

might accordingly need to be more detailed than those in the Court of Appeal or Supreme Court.

Basically, however, Mr Miles said that submissions should comprise a skeletal argument. He criticised what he described as the “unquestioning pattern” from large firms of producing 50 to 100 pages of written submissions going into lengthy discourse on every issue.

Submissions should begin by setting out the basic propositions, followed by the law and then the factual analysis framed within the legal principles. The facts were

what decided a case, and that was why they should come after the legal principles. A summary of legal principles should be set out in a series of sentences rather than in extensive paragraphs. “The appalling habit that has developed in the last few years of citing large numbers of unreported cases is to be deeply deplored,” Mr Miles said.

Chief High Court Judge, Justice Tony Randerson, said oral advocacy was certainly not dead, but it needed something of a revival. “We have in the past 10 to 15 years become rather wedded to written submissions.”

He cautioned against lengthy written submissions, stating that if counsel could not present the case in a maximum of 20 to 25 pages “it demonstrates you’ve lost the plot.”

Justice Randerson said flexibility was required in oral argument when detailed written submissions had already been filed. The first 10 minutes of a presentation were crucial, as this was the period during which the judge was least likely to intervene. The case should be summarised in a nutshell.

Ninety to 95 per cent of deci● Cont. on p.9

Continued from page one

Conference speaker helped shape history

was explosive. In a congressional manifesto, all but three Southern members of the House and Senate denounced the Supreme Court, and Southern states issued declarations of interposition and nullification which echoed Southern defiance on the eve of the Civil War. Professor Greenberg said it was not until 1969 that Brown began making a difference. By then, massive resistance was over and the Civil Rights Act had been passed.

Soon after, around half the black school population began attending integrated schools, and there was an immediate jump in their levels of academic achievement. Professor Greenberg said the lesson of the case was that law could promote public good but it could not do it alone. As opposition appeared, legal and political conflict must be resolved.

In the years after the decision, Professor Greenberg headed the legal section of the National Association for the Advancement of

Coloured People, campaigning through the courts for equal employment, housing, the right to eat in any restaurant and sit anywhere in a bus, and to attend university.

P

rofessor Greenberg has argued some 40 cases before the Supreme Court.

In 1984, he took up a position as a law professor at Columbia University, a position he still holds today at the age of 80. He founded the Mexican-American Legal Defense Fund and participated in human rights missions to the Soviet Union, Poland, South Africa, the Philippines, Korea and Nepal.

Professor Greenberg told the New Zealand Bar Association conference that litigation campaigns such as that in Brown involved lawyers representing not only a client but also a cause. That could sometimes present ethical dilemmas, as the interests of the client and the cause were not necessarily congruent. He said that many attempts to emulate

Brown had failed, and it was misleading to believe that the courts could be used readily over the long term to effect social change.

Reflecting on advocacy, Professor Greenberg said the most important aspect of appellate argument was the facts. In the school desegregation cases, particular efforts had been made to place the salient and persuasive facts before the courts. Educators surveyed schools to establish tangible differences between black and white schools. Social scientists conducted surveys, and leading scholars provided information.

Professor Greenberg continues to travel the world teaching and speaking. He also has a passion for cusine, and is the author of Dean Cuisine: The Liberated Man’s Guide to Fine Cooking, which he wrote with former Harvard law school dean John Vorenberg. He said he and his wife had enjoyed New Zealand and hoped to return.

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Bar Association Newsletter. September 2005. Page 3

Justice Asher : stalwart of independent bar The Bar Association takes particular delight in the appointment of Raynor Asher as a judge of the High Court. Justice Asher was a founding member of the association in 1988 and served on its first steering committee. He was subsequently elected a member of the Council and served as treasurer and as editor of the association’s newsletter.

He was president in 1996 and 1997 and did much, during that time, to promote the interests of the Bar Association and more

generally the independent bar. Justice Asher was especially aware then, as we must be now, of the importance of maintaining the place of a strong independent bar and its traditions in our legal system.

Justice Asher will be greatly missed at the bar. But it is hoped that he will continue to contribute to the association’s work where he can and will continue to be a regular attendee at its conferences.

Justice Asher has always been a regular attendee at bar conferences, dinners and the many informal ski chats held on the slopes of Queenstown! He has, of course, also been an outstanding barrister and a leader of the bar with a very impressive general litigation practice.

The bar welcomes his appointment and wishes him all the very best in his new role as a judge of the High Court. At the same time, however, the association passes on its condolences that the judge’s standing order for each new Aston Martin will now clearly have to be revoked!

Editorial

Strong Bar Association important for NZ A strong New Zealand Bar Association is important for New Zealand. It is one of the checks and balances that help keep our country a fully functioning democracy. In the absence of an upper house and written constitution, the presence of an independent body of lawyers beholden to no group or lobby, committed to the independence of the judiciary and the rule of law, is significant. Further, the public of New Zealand benefit from the variety of first class legal services provided by a strong bar. This is why an energetic and proactive Bar Council is so important.

The intervention rule must be maintained. This is because it is of benefit to the public that there are specialist advocates in place who are part of a profession that does not deal directly with clients but, rather, through solicitors.

There are two very immediate challenges ahead, both of which flow directly from the proposed Lawyers and Conveyancers Bill.

These challenges will not arise immediately if the bill does not become law, but even so they are unlikely to go away forever.

I venture to suggest that starting with Finnigan v New Zealand Rugby Football Union [1985] 2 NZLR 159, the majority of leading cases where there is a strong public law and social interest content have been espoused by members of the independent bar.

The first challenge will be to the intervention rule. The abolition of the rule will arise as an issue when the new rules of professional conduct are drafted.

The second challenge is the Government’s resolve to change the system of appointing Queens Counsel, so that practitioners in firms can be appointed. It is part

This separation enables the barrister to be independent, and a solicitor to brief the barrister without fear of losing the client.

The rule means that there is a large body of independent practitioners available to serve the public, and experience has taught us in the last 25 years that this is a very good thing.

of the attraction of the independent bar that it is only barristers who can be appointed to the rank of QC. If QCs are appointed from firms, there will inevitably and understandably be lobbying by those firms for the appointment of their preferred candidates. The character of the office will change and it will develop, as it did in Canada, into a debased semi-political appointment. While the rank is available only to those who operate on their own, the capacity for lobbying is extremely limited, and the rank is not subject to influence.

The Bar Association must fight these causes. The independent bar, as we know it, has really only been in existence for about 25 years.

Its development has been market driven and of great benefit to the New Zealand public generally.

However, its continued existence is not guaranteed and is now directly under threat.

I have no doubt that the Bar Association will do all it can to retain what has been achieved.

— Justice Raynor Asher

Bar Association Newsletter. September 2005. Page 4

ADR : ‘Black market justice’

Those attending the Bar Conference – and we had a record attendance of 100 – were entertained by Robert Fisher QC on the Saturday evening with a rather cynical but highly amusing view of the place on ADR in the legal system:

◆ “ADR is black market justice gnawing at the white underbelly of our judicial system.”

think that here, at least, the parties would be able to see beyond their own selfish interests. But no, they go off and agree upon a mediated solution with not so much as a thought for the rule of law, abstract justice, or their responsibility to the common law.”

As to judges he had this to say:

◆ “The blame for ADR I would lay squarely at the door of selfish litigants.”

◆ “You probably regard judges as superhuman. Don’t feel bad about that. It’s a respectable point of view.

A man called Walter Bagehot, British economist and journalist, once had something useful to say about this sort of thing. He said that some men … this was before women were invented … some men have an atmosphere of awe and walk wonderingly, as if amazed to be themselves. He may well have had judges in mind.”

◆ “Each case resolved by ADR deprives the legal world of the opportunity for another useful judicial precedent. You would

◆ “It’s hard to see what former judges think they have to offer in the field of consultancy. If you must have someone like that on

◆ “A High Court civil claim under full sail is a splendid thing — pleadings billowing, interlocutories bulging, and a case management pennant streaming from the masthead. All too often this stirring sight is brought to a juddering halt on the rock of ADR.”

the payroll, far better to go for a sitting judge.”

And as to his function and ours (as the audience):

◆ “It will be my function to direct you on all questions of culture and etiquette. On those matters you must accept and act upon what I tell you because, unlike you, I have a lifetime’s study and practice to draw upon.” ◆ “For you, on the other hand, are all questions of vulgarity. If you think that in the course of this address I seem to express some view or other on a question of vulgarity, and it does not accord entirely with your own, you must disregard what I have to say about it. That’s because when it comes to vulgarity you are far better qualified to express a view than me.”

No doubt, our speaker got that right!

Bar Association Conference

Varying practice modes emerging

T

he classic model of barristerial practice is that of the advocate practising on his/her own, either in chambers with other barristers or completely separately and with instructions provided by solicitors.

However, speakers told the conference there were, in fact, a number of different modus operandi for barristers.

Former Queen’s Counsel and now High Court judge, Justice Raynor Asher, said he had practised at Shortland Chambers for 19 years and was an “unashamed proponent of the intervention rule”. His experience of it was that it had been a “wonderful and very successful way to practise”.

He said that, if the Lawyers and Conveyancers Bill was finally passed, it would put the issue of the future of the intervention rule squarely before the association.

The association would undoubtedly be represented on a New Zealand Law Society committee writing the rules which would apply under the new legislation. His view was that maintenance of the rule was essential to the preservation of an independent bar. It ensured the independence and impartiality of approach which were critical to the barristerial function.

Barrister Sandra Grant spoke about the team model of barristerial practice she has adopted. She has

four barristers working for her.

She said she was insured but her employed barristers were not, so she was careful to check thoroughly all their work and research it before it went to the client. Ms Grant said she ran her practice as a business.

Her juniors have budgets and regular team meetings are held to discuss progress of cases.

The financial benefit for her is that her juniors are working while she is on holiday, or spending more time with her children. The time benefit is that she can focus on detail. Also, she has the capacity to take on more substantial litigation than she could ● Cont. on p.6

Bar Association Newsletter. September 2005. Page 5

Bar Association Conference Cont. from page 5

Varying practice modes

manage on her own. She can take work from firms which do not have litigation support while, at the same time, retaining her independence and impartiality.

Ms Grant said drawbacks of the model included a high wages bill and outgoings such as computers and practising certificates. Supervision is also time-consuming.

G

ilbert Walker partner, Murray Gilbert, said that he had left a large firm 15 months ago to establish a boutique, two-partner, litigation practice. Barristers had warned him strongly not to take the step. However, he believed a small, specialist, litigation and arbitration practice was an attractive alternative to practice at the bar.

He said big firms offered the benefits of strong brand recognition, secure and substantial remuneration, an ongoing flow of work, collegiality and huge resources and support staff. However, despite those advantages, many litigation partners chose to leave firms and move to the opposite end of the spectrum by practising as barristers.

Mr Gilbert said he was not sure why this was. One reason might be that the more successful partners in firms become, the less involvement they had in actual legal work. He said the catalyst for formation of Gilbert Walker had been his unsuccessful attempt to recruit Campbell Walker to Chapman Tripp. He did not wish to join a large firm and, following discussions, the pair decided to set up their own firm.

Mr Gilbert said he and Mr Walker believed that people worked best when they were ultimately responsible and accountable for the work and the most efficient way to handle a case, no matter how large, was to have no more than

three people working on it who had the time to deal with it. He said that an advantage of the small firm model was that they could take responsibility for all aspects of the matter whereas barristers often were not instructed until a relatively late stage in the process.

Queen’s Counsel Stuart Grieve spoke about the barristerial model in criminal law, noting that the vast majority of criminal work is funded by legal aid and an instructing

Bank of New Zealand in-house general counsel, Mark Dowland, said that at any one time the bank might have a number of large cases all ongoing at the same time. Therefore, the bank was a major user of legal services. In one instance, the bank had done away with a law firm and dealt with the barrister directly. In others, it would expect the solicitors and barristers to work as a team.

Mr Dowland said the bank

● Discussing Supreme Court advocacy. From left, the Solicitor-General Terence Arnold QC, the Chief Justice Dame Sian Elias, Justice Michael Bastarache from Canadaʼs Supreme Court, and Bill Wilson QC.

solicitor is not required in such cases. His perception is that criminal law is regarded by the profession generally as a poor relation.

When criminal barristers are briefed by a firm, the firm normally does not want to be involved in the case at all. Preparation, management and running of the case are generally left entirely to the barrister. The intervention rule accordingly has no practical impact on the running of the case.

However, Mr Grieve said the rule was of benefit in providing him with a buffer against the private client when it came to the issue of fees.

required from barristers practical wisdom rather than just technical mastery, comprising a broad judgment based on knowledge of culture and history as well as of the law.

An ability to understand the longterm implications of events, rather than just short-term advantages was needed.

He said the value of an independent bar could not be too highly emphasised given the close relationships that large firms inevitably developed with their major clients. The independent bar was therefore in a good position to offer truly objective and independent advice.

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Bar Association Newsletter. September 2005. Page 6

Bar Association Conference

Supreme Court may require new approaches in advocacy

A

ddressing the Bar Conference in the session on Supreme Court advocacy, the Chief Justice, Dame Sian Elias, noted that former Attorney-General, Margaret Wilson, had expressed the hope at the first sitting of the Supreme Court that its establishment would lead to a “renewed interest in the art of advocacy”.

The Chief Justice told the conference that it was still early days and much too soon at this stage to know whether the creation of the Supreme Court would foster the development of specialists in appellate advocacy. However, Justice Elias said that counsel appearing in the new court, or currently working on a case that might end up there, should now be examining whether particular considerations should shape the way in which they would develop and present their case to the Supreme Court.

I

T was also worth considering, in her view, whether the existence of the Supreme Court might suggest some modification of advocacy in the Court of Appeal. Justice Elias said that, in discussing Supreme Court advocacy, the function of a court of final appeal needed to be examined. It was often said that a court of final appeal was not a court of error correction, but this was true only to a point. In New Zealand, the criteria for appeal to the Supreme Court were the principal guides to its functions. In general, only points of law of general importance were suitable for a second appeal.

However, the Supreme Court must also be alert to any serious miscarriage of justice. That allowed scope for correction of error which,

uncorrected, would be an affront to the legal system.

Justice Elias said this raised two points. The first was whether the accessibility of a further appeal might have implications for advocacy in the Court of Appeal.

“An undeserved win in that court because one counsel has been particularly persuasive or another had been insufficiently prepared to come up with an available answer or because the case has just been a dog’s breakfast may be a much less satisfactory outcome for the successful party than in the days when further appeal was less realistic,” she said. “If so, competent counsel in the Court of Appeal may want to make sure that they meet

Court’s approach is to take a ‘very broad view’ the real merits of the case against them, even if it is insufficiently argued by their opponent.

“No doubt such cases are rare, but they stand out at this level and we have already had a couple where plausible arguments insufficiently tested have led to error which has had to be corrected.”

Secondly, Justice Elias said counsel must isolate key points warranting second-tier appeal.

An invitation to conduct a general review of the Court of Appeal decision would almost always be rejected. There were indications that some counsel had not sufficiently

appreciated that appeals as of right were a thing of the past. There was now nothing to be gained from putting in an appeal to hold the position, as was not uncommon with appeals to the Privy Council.

Justice Elias said that appeals disclosing no point within the statutory criteria could be — and were — dismissed on the papers without waiting for a response from the respondent. Insufficient attention was being paid, she said, to isolation of the points that really mattered. This was evident from the number of cases in which leave hearings had been required, even though she said the court was able to grant or decline leave on the papers.

I

N a few cases, leave hearings had been necessary only to identify points the court wished to have properly argued and which had not sufficiently emerged in the written points or arguments.

Justice Elias said she hoped that, as counsel became more familiar with the jurisdiction, the need for leave hearings in cases where a second appeal was clearly warranted would diminish. She also emphasised that the Supreme Court’s approach was to take a “very broad view” of the issue at hand.

“If you are running a judicial review case in a commercial context, for example, you may not think to read that latest decision of the House of Lords in a refugee case. But if you think that judicial review is not concerned with the attribution of weight among relevant ● Cont. on p.8

Bar Association Newsletter. September 2005. Page 7

Bar Association Conference Cont. from page 7

Intervention rule’s uncertain future

considerations, for example, you could get a nasty shock,” she said.

Justice Elias urged counsel to watch for analogies and parallels and to check Wigmore, Twining and the Australian edition of Cross.

On difficult criminal points, it was always worth checking what Glanville Williams had to say.

Supreme Court of Canada Justice Michel Bastarache noted that only about 15 cases a year were heard as of right in the Supreme Court of Canada. The court received approximately 650 motions for leave to appeal and granted leave in around 85 cases. Justice Bastarache said the court applied strict time limits for all oral presentations.

Principal parties were given an hour, while interveners were usually limited to 15 minutes.

Counsel would normally be confronted with questions from the bench very early in the event and should therefore not count on the possibility of making a wellrehearsed and well-organised presentation.

A lawyer arguing a case before the Supreme Court, said Justice Bastarache, must understand the particular role of the court and focus on the fundamental issues that were of importance to it. Every issue should be self-contained, with an introduction, a development and a conclusion.

He said it was a mistake to fashion arguments as though there had been no decision of the Court of Appeal and the proceedings were an opportunity to argue the case as if it were new. In most cases it was necessary to present an argument in light of the decision under appeal.

Justice Bastarache said many commentators were of the view that oral advocacy no longer played an important role since written

submissions were far more detailed and judges now better prepared than in the past. He did not know how true this was, but observed that counsel would have to do a lot more than repeat what they had argued below to persuade the Supreme Court. There was still room for passion in oral advocacy, but in difficult cases, “pragmatism would trump dogmatism”.

S

olicitor-General Terence Arnold QC said the nature of the Supreme Court’s work was significantly different from the work that had gone to the Privy Council.

It was inevitable that there would be a greater public law focus in the new court’s work. More causebased litigation was being seen.

Counsel should be conscious that the Supreme Court had time to read and consider the written submissions prior to the hearing. By the time of the hearing, individual members of the court were likely to have a preliminary view and the oral hearing was likely to focus on extensive questioning.

Mr Arnold said an important aspect of persuasion was making it easy for the decision-maker to come to a view. Providing the court with “great masses of material” was not consistent with that.

It was especially important, he said, to take great care in identifying the issues on which leave was sought, as the way in which leave was granted might determine the scope of the appeal. “There is absolutely no point in putting in a leave application to buy time”.

The Supreme Court took the statutory leave grounds very seriously and required them to be addressed specifically and clearly.

Mr Arnold suggested that the court might consider identifying in advance, by way of memorandum, the particular points it wanted addressed in oral argument. That would enable the oral argument to be closely focused on the real issues.

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AUSTRALIAN INSTITUTE OF JUDICIAL ADMINISTRATION CONFERENCE 7-9 OCTOBER 2005

The Australian Institute of Judicial Administration is having its annual conference in New Zealand from 7-9 October 2005 in Wellington. Members of the Bar Association are encouraged to attend.

The theme of the conference is “Technology, Communication, and Innovation”. The conference will examine some of the issues and challenges posed by the way in which modern technology has enabled courts and tribunals to transform existing processes and introduce new services.

Guest speakers include The Honourable Justice Frances Kiteley, Superior Court of Justice, Ontario, Canada; Justice Robert Chambers, Court of Appeal; Robert Gotterson QC, Australia; Megan Greenwood, CEO of the Supreme Court of New South Wales; and Justice Ron Sacville, Convener of the Judicial Conference of Australia.

Programme updates and registration information are available on the AIJA website at www.aija.org.au.

Bar Association Newsletter. September 2005. Page 8

Bar Association Conference

In his report to the AGM (below) Bar Association president Jim Farmer QC drew attention to . . .

Unprecedented changes facing profession I

T is with pleasure that I table at the annual general meeting of the New Zealand Bar Association the annual report of the president, an act which gives me a true sense of déjà vu, having performed the same task at the beginning of my previous term as president in the then new association in 1990.

The purpose of such a report is to comment briefly on highlights for the year, plans for the future and trends that appear to be emerging that affect the bar and the legal system as a whole. There is perhaps a perception that, because of the inherent conservatism of the legal system and of the legal profession (taught as we are to respect precedents), nothing much changes.

Wrong. We are today faced with changes, in nature and at a rate, that are unprecedented. The Lawyers

Cont. from page 3

and Conveyancers Bill (currently suspended) is but one manifestation of that. So too is the way in which litigation is being conducted under the judge-led case management reforms and the mediation movement. Access to justice is assuming greater prominence as a social and legal issue and trends overseas suggest that we will see an increasingly large number of cases where litigants appear in person.

The bar needs to be aware of and responsive to these changes. The Bar Association should be the focal point and vehicle through which the debate and action on such changes can most effectively take place.

As president, I inherited a Council largely unchanged from that headed by my predecessor Robert Dobson QC. I was pleased about that fact then and I am even more

pleased about it now as, apart from the qualities of the individual Council members, it provided important continuity that, for an incoming president, was important. I was especially appreciative of the fact that Robert agreed to stay on for a further year, serving in the capacity of vice-president, and I have valued greatly his numerous explanations of the background of current issues that, invariably, illuminate those issues as well as his sound counsel on the often difficult matters that we have to address.

It is always invidious to select for special mention individuals from a team. However, I do want to express my appreciation for the continuing work that Chris Gudsell from Hamilton has performed as treasurer and in other respects. Chris has, I think, ● Cont. on p.10

Advocates or authors?

sions were made by judges during the course of argument, which demonstrated the significance of courtroom presentation and advocacy.

Counsel should jot down what the case was about and what the key issues were in a couple of pages. Justice Randerson said the worst feature of some advocacy was counsels’ unfamiliarity with the facts. “It certainly makes your case look pretty ragged and tatty if you can’t answer simple questions and put your finger on pieces of evidence.”

He warned that it was critical to focus on responding to the opposition’s case. It was vital to be ready to deal with opposing arguments. It was also critical for counsel to look at the judge. Many counsel spent most of their time looking at their papers and they

would never convince a judge by looking at documents.

Justice Randerson said that, if a judge appeared to be with counsel on a particular point, then counsel “should fan the fire”. Advocacy did sway judges. “We are not closed books but, rather, are susceptible to persuasive argument”.

Helpfully, Justice Randerson has provided some notes as to do’s and don’ts in “Optimising the effectiveness of submissions in the High Court”. A copy is attached with the newsletter.

O

In discussion following the addresses, Justice Wild cautioned against lengthy written submissions, noting that the longest he had been faced with ran to 214 pages!

He said this meant judges had to spend time reducing arguments to, say, 25 pages.

“Contact the opposing counsel and ascertain what issues they regard as being in dispute. It might be that some issues assumed to be disputed might not be in contention,” he suggested.

“Counsel’s laziness and ineptness had simply transferred what should have been counsel’s work to the judge,” he said. Some participants, however, questioned whether the nature and length of written submissions was in part because counsel could not be sure whether the judge would go to the cases or read all the relevant material.

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ne of the judge’s key tasks during a trial was to bring order to chaos by defining the issues.

Counsel should assist in that task from the earliest point by refining the issues.

Bar Association Newsletter. September 2005. Page 9

Bar Association Conference Cont. from page 9

President’s annual report

Unprecedented changes coming

done a great job in fostering continuing interest in the association in the important Waikato region, something very evident when the Council met in Hamilton at the end of May and at the well-attended function afterwards. I would also like to mention the huge amount of work put in by Miriam Dean QC (a new Council member) and Stephen Mills to the planning and organisation of the annual conference at Queenstown at which this AGM is being held.

It was their initiative that led to our obtaining the presence of two international stars as speakers, Justice Michel Bastarache, a senior judge of the Supreme Court of Canada, and Professor Jack Greenberg, a legendary counsel who at a young age was a leading figure in the 1954 civil rights case in the US Supreme Court in Brown v. Board of Education. They head an impressive panel of speakers that includes our own Chief Justice and Justice Randerson, the Chief Judge of the High Court who continues to take a real interest in the association and its members (evidenced by his former membership of the Council when at the bar and at his attendance at all three of our after-Council functions in Auckland, Wellington and Hamilton).

The conference represents an undoubted highlight for the year.

Over 100 registrants, a record for the association and a brilliant comeback from the disappointment last year when cancellation of the conference was forced by the Auckland District Law Society’s commemorative ball arranged for the same weekend. The possibilities of holding the conference at other locations, including off-shore, were investigated by the Council but ultimately the tried and proved Queenstown formula – enhanced by cheaper air fares – was adhered to and the number of registrants

has vindicated that decision. An innovation this year has been the decision to hold Council meetings in rotation in different centres, followed by functions to which local barristers have been invited and at which particular current topics of interest to the bar, such as the intervention rule and the proper role of the Bar Association, have been raised for discussion. So far, as mentioned already, we have gone to Auckland, Wellington and Hamilton and are scheduled also to be at Christchurch and Dunedin. I have been impressed both by the very good attendance at those functions and the quality of discussion and debate that has emerged. At the last annual meeting of the association, some concern was expressed by members at what was seen to be a lack of communication between the association and the membership.

The regional Council meetings and post-Council functions were one reaction to that. There is no doubt however that we can, and should, do more to ensure that barristers see

the considerable amount of work that is being done on their behalf and for their benefit.

A

nother reaction was the effort put into the newsletter.

The plan has been to have three newsletters in the current year but more importantly to make the newsletter more professional. In that respect, a decision was made to appoint an experienced journalist/ lawyer, Catriona MacLennan, to drive the newsletter and also to establish an editorial committee consisting of Miriam Dean QC, Marian Hinde, Stephen Kos and Jonathan Eaton. Our first edition for the current year did not come out as quickly as we would have liked and the second will in effect be a conference edition.

Membership of the association is another matter to which attention is being given. Of the 1200 or so barristers practising in New Zealand, 47 per cent are members ● Cont. on p.11

EXPERT EVIDENCE CONFERENCE: BROOME, WESTERN AUSTRALIA, 16-19 OCTOBER 2005

The International Institute of Forensic Studies – established to promote education and research relating to courts and tribunals – is holding its third conference from 1619 October 2005 in Broome, Western Australia. The conference is being organized in conjunction with Unisearch and the Australian Advocacy Institute.

The conference is entitled “Experts and Lawyers – Surviving in the Brave New World”. Changes to the relationship between experts and the courts, requiring a new approach from lawyers and experts, will be canvassed. The conference will explore what can be achieved and how it will work. Speakers include Judge Hampel from the Victorian Court, Ian Freckelton, Barrister and Justice Crispin from the ACT Supreme Court.

More information is available on the Association’s website www.law.monash.edu.au/expertconf.

Bar Association Newsletter. September 2005. Page 10

Bar Association Conference Cont. from page 10

President’s annual report

Unprecedented changes coming

of the association. While in actual numbers this is pleasing, it is in my view disappointing that over half do not see advantage to their joining an association that works to promote the independent bar and has successfully over the years created an image for barristers as specialist and independent advocates that has enabled them to compete effectively for litigation briefs from litigation lawyers practising in law firms. It has always been recognised of course that the Bar Association’s exclusive insurance scheme — which I imported from New South Wales in the early 90’s – has been a tangible and material reason for barristers to join. With that in mind, the Council is now investigating the possibility of establishing a bulk buying scheme which would enable us to obtain substantial discounts in respect of the basic services acquired by barristers — telecommunications, stationery, etc. With 1200 barristers we have collectively a purchasing power that exceeds that of even the largest of law firms and it is hoped that such a scheme would provide of itself a substantial increase in the revenues of the association. That in turn would enable us to operate as a more professional body and thereby to improve the value that is given to members.

Another matter to which attention is being given is that of training of young barristers. This is something that under the new regulatory regime envisaged by the Lawyers and Conveyancers Bill is likely to become a mandatory requirement and it is the view of the Council that this is a function that we should welcome and assume as a responsibility. That of itself will undoubtedly serve to make the association highly relevant to younger barristers and it is a matter of regret that, despite the efforts that have been made over the years (including the making of

scholarships available to the NZLS litigation skills course, with two being awarded this year), we have not really reached out successfully to the very group that probably needs our support most.

T

he intervention rule remains on the agenda, as it has for many years now notwithstanding the inconclusive outcome of the Barker Committee some eight years or so ago. The results of a comprehensive survey conducted of barristers have been presented and discussed at the conference. Just under half of barristers want retention but the remainder want either abolition or substantial modification. That would seem to indicate that the time might have come to bite the bullet and follow the lead of the English and in New South Wales and to make provision for those who wish to do so to accept instructions directly.

However, for those who wish to go down this path, some safeguards and restrictions need to be put in

place (as in England and New South Wales) if the identity of barristers is not to be lost. The problems of finding the right formula should not be underestimated. Indeed, it is still not clear to me that a formula can be found that will allow those who wish to take instructions directly from the public and still call themselves barristers to do so without putting in jeopardy the very identity of barristers as independent and specialist counsel, an identity that the intervention rule has underwritten. A reasonable halfway house – which I suspect will please neither the retentionists nor the abolitionists – is that adopted in New South Wales where a barrister may (under certain stated conditions) accept instructions directly up to the point where litigation is on foot with a requirement of obtaining an instructing solicitor at that stage.

Another continuing issue of concern has been the appointment ● Cont. on p.12

WORLD BAR CONFERENCE15 – 19 APRIL 2006 The International Council of Advocates and Barristers is holding its third world conference in Hong Kong and Shanghai 15-19 April 2006.

The Council of Advocates and Barristers is an organisation formed by the Bar Associations in jurisdictions where there is a separate profession of an independent referral Bar. The Associations include the New Zealand Bar Association.

The focus of the conference will be on matters particularly important to the Bar worldwide including, regulatory issues, better training for the profession, and strengthening the independent Bar as a prerequisite to an independent Bench.

Details are available at www.worldbaronline.com. If you wish to receive a registration brochure before they are generally released you can send contact details – including an email address to: World Bar Conference Secretariat Level 5, 107 North Quay Brisbane 4000

Bar Association Newsletter. September 2005. Page 11

Bar Association Conference Cont. from page 11

President’s annual report

Unprecedented changes coming

of Queen’s Counsel. We have of But it has been a matter of concern reside in Australia. Also not listed course faced the prospect, to me that for some years now a cap are silks who do not practise law at manifested in the Lawyers and of four new appointments seems all): Conveyancers Bill, of the rank to have been imposed and, with Practising at the criminal bar – being abolished and replaced with natural attrition, appointments to a system of Senior Counsel but, the bench and appointments of 10, practising virtually exclusively much more seriously, of expanding lawyers with very fine credentials in one specialist jurisdiction (e.g. eligibility to appointment to but who do not work full- time employment, resource management, members of law firms. The as counsel in the courts, the fact tax, family) – 8, practising in the association has fought this reform is that the senior bar is weaker civil courts – 40, retired or semivigorously for a very long time than it should be. That reduces retired – 11, and non-litigators – 7. now, including submissions to the the pool of acknowledged counsel A total of 58 practising senior Attorney-General, an appearance of seniority for the increasing before the Select Committee and number of judicial appointments counsel in a bar of 1200 barristers continuing representations subse- and for government tasks that have (or less than 5 per cent) compares quently to the Attorney-General traditionally been asked of Queen’s very unfavourably with comparable bars in Australia and and Minister of England where a Justice. All to no Council Meeting Dates ratio of 1 to 10 is the apparent avail. In norm. In my view, the my view, the proThe Council is meeting on the following dates for the Attorney-General in moters of the reremainder of the year: the new government form have simply should give serious not understood that October 13, Dunedin consideration next the rank of Queen’s December 1, Christchurch year to appointing a Counsel is not akin substantial number to a Queen’s BirthIn Dunedin, the Council will meet for an informal of new (practising day honour – and lunch with members of the association. The Council as counsel) Queen’s therefore one that continues to be keen to get feedback from members Counsel as a first should in “fairness as to what the association can be doing better and step to redressing and equity” be members’ views on topical issues. The Council will the imbalance that available to all. hold an informal drinks session with Christchurch presently exists and to What they have not members of the association after the December 1 ensure that the public seen, or been willmeeting. need for leading ing to see, despite counsel who are our efforts, is that recognised as such is the rank of Queen’s Counsel is there for the public Counsel. It also means that there has met. benefit (albeit that it no doubt now developed a very large hump By way of conclusion, can I benefits those who are appointed). of very competent and experienced The very existence of Queen’s counsel just below Queen’s Counsel affirm that the bar is in good heart, Counsel ensures that the public whose development into the higher the Bar Association is in good does not believe that all lawyers echelons of complex and important heart but there is no room for are of equal ability and competence litigation is being impeded. If the complacency. I thank the outgoing and experience. It provides a trend of appointments that has Council for its support and express standard to which other lawyers emerged in recent years continues, my enthusiasm for continuing to can aspire and it ensures that there it has the potential to weaken work with them comprising, as they is leadership and an example of the bar as a whole. To show the do, for the most part the incoming dimension of the situation, from Council. I would also like to record adherence to professional values. the Directory of New Zealand my appreciation for the continuing Bearing that in mind, I have to Barristers and Solicitors, I have good work of Gené Tibbs, our longexpress my disappointment at the identified the following numbers standing secretary. fact that only one full time barrister and categories of Queen’s Counsel Jim Farmer QC was appointed as a new silk this (I have excluded a small number of President year. By that I do not mean to Australian silks who have nominal August 12, 2005 denigrate the other three, far from it. New Zealand addresses but who Bar Association Newsletter. September 2005. Page 12

Survey results

E

Mixed views on intervention rule

arlier this year the Bar Association asked members to complete a questionnaire seeking their views about the intervention rule and about some aspects of the association’s role. Information was also sought about the demographics of the association.

An analysis of the members’ responses about the intervention rule has been posted on the web site. A summary of the results is set out below:

1

56/141 of the responses (40%) support retention of the rule; 72/141 (51%) support abolition of the rule. The other 9% provide results that do not fall squarely within either category.

2

Of those who supported abolition of the rule: 29/72 (40%) had been at the bar between 0-5 years; 22/72 (31%) had been at the bar between 6-10 years; 14/72 (19%) had been at the bar 11-15 years; and 7/72 (10%) had been at the bar 16-20 years. Further, 17/72 (24%) had been admitted between 1971-1975, and 14/72 (19%) between 1981 and 1985.

There was a large variety of areas of practice among those who would abolish the rule, divided into: Civil and commercial – 16 (22.22%); others – 18 (25%); criminal – 7 (9.72%); family – 7 (9.72%); tax and trusts – 4 (5.56%); RMA (and RMA/civil) – 4 (5.56%); civil and employment – 5 (6.94%); criminal and employment – 2 (2.78%); civil and criminal – 3 (4.17%); commercial/civil and public – 3 (4.17%); and family and civil or criminal – 3 (4.17%).

3

Of those who supported retention of the rule there was a large variety in the areas of practice: civil/commercial – 24 (43%); civil/ family – 3 (5%); civil/criminal

– 2 (4%); RMA/civil – 3 (5%); and other – (43%).

Eleven of 56 (20%) had been at the bar between 0-5 years; 18/56 (32%) had been at the bar between 6-10 years; 11/56 (20%) had been at the bar 11-15 years; 9/56 (16%) had been at the bar 16-20 years; 1/56 (2%) had been at the bar 2125 years; 5/56 (9%) had been at the bar 26-30 years; and 1/56 (2%) had been at the bar 36-40 years.

Further, 21% were admitted between 1971-1975, 20% between 1981-1985, 18% between 19761980, 14% between 1966-1970, 11% between 1986-1990, 5% between 1991-1995, 4% between 1961-1965, 4% between 19461950, and 2% between 1956-1960 and between 1996-2000.

4

Many respondents supported retention on a modified basis: sixteen of 141 (11%) supported abolition for criminal cases (this includes those who considered the rule should only be retained in civil); 2/141 (1%) said they should be able to take a direct brief from solicitor/ accountant/other professional; and 10/141 (7%) supported abolition for family/matrimonial property (this 7% includes those who considered the rule should only be retained in civil).

5

Reasons given for supporting retention of the rule are: Promotes the independence and objectivity of the bar/promotes high standards – 24 (17%) Sets barristers apart from solicitors – 3 (2%) Provides tax advantages – 3 (2%) Barrister does not want to deal with client’s directly – 3 (2%) Saves the barrister having to sue for fees/do not want to deal with client’s money – 2 (1%) Ensures quality control – 2

(1%) Acknowledges special skill/ seniority -2 (1%) The services of barristers and solicitors are different – 1 (1%) Enjoy the support of solicitors/ administrative assistance – 2 (1%) Small firms have access to high level of expertise/small firms do not risk losing client -2 (1%) Barristers able to have a wide variety of work with “poaching” – 1 (1%) Benefit of maintaining distance between barrister and solicitors – 1 (1%) Security of payment – 1 (1%) Solicitor provides assistance in administration -1.

6

The reasons given for supporting abolition are: Increased costs for the client – 16 (11%) There are already many exceptions to the rule/it is being widely ignored – 10 (7%) It serves no useful purpose – 8 (6%) It is confusing for the client – 7 (5%) It is an anachronism/obsolete/a sham – 6 (4%) It is anti-competitive/client should have the choice – 4 (3%) Solicitors do not want anything to do with the case – 4 (3%) Waste of time/unrealistic to be able to keep solicitors fully informed – 2 (1%) Impedes access to justice – 2 (1%) Barristers are unable to compete with solicitors – 2 (1%) It is only administrative / administrative burden-2 (1%) Solicitors are unwilling to meet obligation in respect of fees/will not recover fees – 2 (1%) Increases the amount of paper work -1(1%) Creates a negative perception of the bar – 1 (1%) ● Cont. on p.14

Bar Association Newsletter. September 2005. Page 13

Obituary John Allen QC, who died at the family property of Annandale, Morrinsville on Wednesday May 11, was a practitioner regarded with affection and respect by the many colleagues who knew him.

Born in 1933, he qualified in law at Pembroke College, Cambridge.

On his return to the Waikato in 1955, he practised for a short time as a sole practitioner in Hamilton, then as a partner in what became Swarbrick Dixon and Allen for over 20 years. In 1980 he left the firm to practise as a barrister, taking silk three years later. His practice

John Allen QC: ‘Formidable advocate’ as a QC continued until December of last year, when he decided not to renew his practising certificate.

On John the lawyer I have three comments. First, behind that rather deceptive, laid back style

Survey results: cont. from p.13 Creates greater delay – 1 (1%) Irrelevant when barrister is in control of litigation – 1 (1%) Clients should be able to access counsel of his/her choice – 1 (1%) The rule is inflexible – 1 (1%) A barrister is happy to be responsible for his/her own work – 1 (1%) Inconsistent with current communication technologies – 1 (1%).

7

● John Allen QC

was a formidable advocate, as I, or rather my clients, on occasions discovered to their cost. He had a profound knowledge of the law and the skill to advocate a case in the most effective way. If he were on ● Cont. on p.15

On the question of an alternative structure for the payment of fees if the rule is abolished, the most commonly expressed view was that most did not want to handle client’s money (at least 16 responses). Most thought that money (including large

sums) should be held in advance in a solicitor’s/accountant’s trust account and, otherwise, fees could be paid to an independent stakeholder or the ADLS/the Bar Association. One person said there should be a privately administered trust account.

8

77/141 respondents consider that their needs for networking in their specialised areas are sufficiently met by other organisations. Another 57 would like the Bar Association to provide a forum for meeting fellow barristers mainly for networking, mentoring and collegiality.

■

Agency can provide juniors and locums to barristers A new agency providing temporary lawyers reports that it has a number of excellent and experienced litigation lawyers available to work as juniors or locums for barristers, or simply to provide research skills.

McKenzie Ellis was set up by lawyers Jackie Mulligan and Jill Pitches earlier this year with the aim of providing flexible work options for lawyers who donʼt want fulltime or permanent legal work, and support to all facets of the legal profession, by providing temporary legal resources.

For many barristers, it can be difficult to find a junior to assist with a large case. Whilst other barristers can be found in the directory, if you donʼt know them, how do you know what their experience and level is, whether theyʼre available or whether theyʼre any good?

A number of practising barristers have registered with McKenzie

Ellis. Many of them are interested in providing litigation support rather than running their own cases, for a variety of reasons, such as balance with other areas in their life. They can provide services from research alone through to a full junior role.

Senior temporary lawyers can also be used to provide expert advice in tricky or problem cases.

There are expert lawyers available in most areas, including tax, insolvency, resource management and insurance.

Each registered lawyer has been interviewed and reference-checked.

They have experience from 5 – 18 years PQE and many have practised as barristers and/or have experience in large firms in New Zealand and overseas. Most areas of law are covered, and there are a number of contractors who are particularly strong in commercial litigation and resource management at present.

Most temporary litigation lawyers hold a practising certificate as a barrister sole. McKenzie Ellis matches requests for help with its database to quickly find a lawyer with the level and area of experience required. There are usually no additional costs involved in using a lawyer through the agency as the lawyerʼs charge-out rate will be similar to the rate they would have charged if instructed directly.

Another problem for barristers is getting away from a busy practice for holidays, illness, family or maternity leave. McKenzie Ellis has a number of senior litigators available to cover barristers while theyʼre away, or just to deal with excess work.

Barristers seeking assistance or wanting to find out more about registering with McKenzie Ellis should visit its website, ʻwww. mckenzieellis.co.nzʼ for more information.

— Advertisement

Bar Association Newsletter. September 2005. Page 14

T

he Bar Association offers its warmest congratulations to the four new silks, Tómas KennedyGrant of Auckland, David Jones of Auckland, Helen Aikman of Wellington and Professor John Burrows of Christchurch on their call to the inner bar. ★★★★★★ Following its meeting in Hamilton on May 26, the Council held a very successful drinks function with members of the association in the Hamilton Club.

There was very lively debate on some of the issues currently facing the bar, particularly the future of the intervention rule. Training of young barristers was another issue at the fore and the need for senior members of the bar to take on a mentoring role to assist young

Bar Chat ...

People and events barristers.

A number of practitioners also expressed interest in the Bar Association investigating possible bulk buying (or other discount) arrangements with key suppliers.

This is something that the Council has indeed taken on board and has a project currently under way to explore with suppliers possible bulk buying arrangements or other forms of discounts.

★★★★★★ Auckland barrister Michael Webb has been appointed managing director for financial sector development and policy of the Qatar Financial Centre Regulatory Authority and will be based in Dohar. We wish him well. ★★★★★★ The Bar Association welcomes new members to the independent bar and association: Andrew Belcher, Dunedin; Chris Chapman, Wellington; Damian Chesterman, Tauranga; Peter Churchman, Wellington; Julia Crockett, Auckland, Frank Godinet, Auckland; Kerry Ann Jacobs, Wellington; Patrick McGrath, Auckland; Simon Shamy, Christchurch.

Obituary: John Allen QC the other side, you knew you had a formidable opponent.

Secondly, he gave unstintingly to his profession and colleagues.

He served on the Council of what was then the Hamilton District Law Society, including two years as its president. He was for two years on the Council of the New Zealand Law Society. During his time as a QC, he served for many years on the Council of the New Zealand Bar Association. In addition to these formal commitments, he was generous with his time to any practitioner who sought his help or guidance.

Thirdly, he loved the law. It was his hobby. He would talk with great interest on any legal issue.

He was a keen reader of the legal literature, and was a frequent and enthusiastic attendee of legal conferences around the world.

There was nothing he liked more than to debate some recent decision of the New Zealand or an overseas court, with some pungent and well informed comments.

Cont. from p.14

John had many other interests, chief of which was the army. After completing his CMT, he served in the Hauraki Regiment for many years, reaching the rank of major.

He was awarded the Efficiency Decoration for long service. But that was not the end. In 1997 he was appointed the Honorary Colonel of the regiment, a role he filled with much distinction until early this year. On April 27 — only 14 days before he died — he received a letter from the chief of the army, Major General Mateparae, advising John that he is authorised to retain his rank of Honorary Colonel.

The letter went on to say, “This is

richly deserved and an appropriate recognition for the active support you provided the 6th Hauraki Battalion during your seven year tenure as its Honorary Colonel. It also seems appropriate given the association your family has had with the Haurakis extending back over 100 years.”

Next newsletter publication date:

John had a wide range of friends, and went to some trouble to keep his friendships in repair. He had an irrepressible sense of humour.

He was fun to be with. We mourn the passing of a valued friend and colleague.

◆ Early December

There was another perhaps less well known military connection.

For 14 years he was a judge of the Court Martial Appeal Court, an office he still held when he died. I sat with him on occasions on this court, when his knowledge, not only of the law, but also of military service, was invaluable.

— Sir David Tompkins QC Bar Association Newsletter. September 2005. Page 15

Council Members

Council members of the New Zealand Bar Association are: President James Farmer QC

Ph: 09 358 7090 Fx: 09 358 7091

P O Box 1800

Auckland

Treasurer Christopher Gudsell ctgudsell@xtra.co.nz

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

Secretary Gené Tibbs nzbar@xtra.co.nz

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

Miriam Dean QC miriam@barrists.co.nz

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

jamesfarmer@queenscounsel.co.nz

Jonathan Eaton j.eaton@xtra.co.nz

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

Stephen Mills

Stuart Grieve QC stuart@grieve.co.nz

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

Mary Scholtens QC mts@mtscholtens.com

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

Elizabeth Hall

Ph: 04 939 9039

Trevor Shiels

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

stephen.mills@shortlandchambers.co.nz

elizabeth.hall@paradise.net.nz Fx: 04 939 9269

trevor.shiels@barristerschambers.co.nz

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

Terry Sissons terry.sissons@xtra.co.nz

P O Box 2557 Wellington

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

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

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

Auckland Bar Dinner A bar dinner for the four new Auckland silks will be held at the Northern Club on November 25th

AUSTRALIA AND NEW ZEALAND SPORTS LAW ASSOCIATIONʼS CONFERENCE SYDNEY 13-14 OCTOBER 2005 “A BRAVE NEW SPORTING WORLD” The ANZSLA – which is the pre-eminent Australasian body for those interested and/or involved in sports law – is holding its annual 2005 conference in Sydney, October 13-14.

The theme is ʻA Brave New Sporting Worldʼ and its impressive list of speakers promise to give insightful comment on a range of emerging issues confronting sports law and sports administration.

Speakers include Malcolm Speed, CEO of the International Cricket Council, some high profile Australian and International speakers, and New Zealanders Kit Toogood QC, Dr Mike Sam and Andrew Blair. The programme is to be released shortly. In the meantime those interested can obtain further details of the conference on the ANZSLA website: http://www.anzsla.com.au

Bar Association Newsletter. September 2005. Page 16