NZBA Newsletter September 2006

Newsletter of the

New Zealand Bar Association SEPTEMBER 2006

At the NZBA Conference 2006

The New Zealand Bar Association held its annual conference on September 1-2, in Queenstown. The focus was the rules of evidence, with papers from eminent New Zealand and overseas jurists and leading New Zealand barristers. Contributions by Justice David Ipp of the NSW Court of Appeal were a highlight. This Newsletter issue contains three articles concerning conference sessions.

Pictured above, in a lighter moment at the conference, are from left Hamish Hancock, Jim Farmer QC (president) and guest speaker Jim Hopkins.

New Evidence Bill

Outcome still uncertain

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he whole future of the way in which law was practised in New Zealand would depend on how this country dealt with the Evidence Bill, New South Wales Justice David Ipp told the New Zealand Bar Association conference.

in Australia that the phrase “the interests of justice” referred not only to individual defendants, but also to the community as a whole.There had been a perception that the rules had become skewed and a rebalancing was required.

He said Australia had reformed its evidence laws more than 20 years ago, as a result of community dissatisfaction with rules such as those relating to hearsay. The notion had been developed

Justice David Baragwanath, a former Law Commission president who signed the commission’s report on reforming the laws of evidence, suggested that ● Cont. on p.4

In this issue . . .

NZBA conference pp1,2,3 Evidence Bill pp1,4,5 Hot tubs pp5,6 Demeanour findings pp7,8 Presidentʼs report pp8,9,10 Obituaries pp11,12,13 Lesson for silks pp13,14 Bar Chat p14 Arbitration Day pp14,15 Council meeting pp15,16 Practice development pp16,17,18

N.Z. Bar Association Newsletter. September 2006. Page 1

Conference 2006 Top (left to right): Deborah Ericsson, Jim Hopkins, Charlotte GrifďŹ n, Liesle Theron.

Centre: Gillian Coumbe, Pip Sarfati.

Bottom left: Stephen Kos, Miriam Dean QC Bottom right: Justice Noel Anderson, Justice David Ipp

N.Z. Bar Association Newsletter. September 2006. Page 2

Conference 2006 Top (left to right): Susan Baragwanath, Justice David Baragwanath, Warwick Smith Centre: Paul David, Stephen Kos, Chris Corry, Clive Elliot.

Bottom: Nicky Pender, Helen Cull QC, John Matthews.

N.Z. Bar Association Newsletter. September 2006. Page 3

Continued from page 1

New Evidence Bill: Outcome still uncertain some loosening and recasting of the bill was now required to avoid both the risk of injustice in particular cases, and the consequential need for repeated visits to Parliament to engage in fine-tuning.

His view is that a rules committee should be established to make new rules and amend existing rules. There were considerable problems with technical law reform and early establishment of a committee would be useful in finalising the content of the new evidence legislation in a practical manner.

If Parliament decided that legislation was required and parliamentary time proved to be a problem, consideration might be given to the Australian Main Committee concept, adopted in England by the Westminster Hall Committee.

Each had authority to act as the House of Representatives to deal with legally and essentially non-controversial bills, such as those concerning much law reform.

Justice Baragwanath said that, although the concept of substantial codification of evidence rules was appropriate, the seven years which had elapsed since the Law Commission released its report had demonstrated the need for greater flexibility than the bill contained.

Further work needed to be done on the bill, both in terms of its structure and of its content, to ensure that it was sufficiently flexible to avoid becoming a procrustean bed.

Turning to specific issues, the application of the proposed hearsay rules presented some challenging problems. The bill provided for the defence in criminal trials to introduce hearsay evidence, but stated that prior notice must be given, a requirement which had been criticised by some lawyers. Justice Baragwanath said that a principled approach was required and balance must be maintained. If the defence did not wish to give notice, he could see no practical alternative to applying the current law, to avoid the risk of surprise production and introduction of statements made by witnesses whose

departure from New Zealand could not be proved to have been manipulated.

In relation to propensity evidence, clause 36 should be expressed as principle. Carefully nuanced judgments were required. Leave should be required to bring propensity evidence about codefendants.

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ommenting on Justice Baragwanath’s paper, Queen’s Counsel Helen Cull said that there was no doubt that the Evidence Bill would have the advantage of collecting together all the relevant rules of evidence in one place. However, she believed the profession was unaware of some of the substantial reforms it introduced. Ms Cull, who prepared the

❛ Bill fundamentally changes the law in a number of areas ❜ New Zealand Law Society’s submission on the bill, said the society was of the view that the bill fundamentally changed the current law in a number of areas, including hearsay, character evidence, credibility, identity and privilege. “In my view, a number of those reforms will impact heavily on the conduct of trials and the timing and length of trials.”

Ms Cull said she feared the bill’s relaxation of the rule against hearsay evidence would result in an increased number of pre-trial motions. A more serious concern was that the change was a “backdoor method of requiring pleadings in criminal cases”. More pretrial hearings would also be likely in civil cases, and it would be open to parties to ensure that witnesses provided written statements and were then “away on climbing trips in Bolivia” and unavailable at the trial.

of rules relating to opinion evidence.

A substantial helpfulness test would be unclear and would lead to further litigation, delay and confusion.

Overall, she said, the changes were likely to increase the number of witnesses called in civil cases and the ability of parties to create sideshows. This would make trials longer and more costly. Ms Cull said there was already insufficient time for pre-trial applications in civil cases. Decisions which should be made before trials began were accordingly often made on the first morning of the ● Cont. on p.5

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

Ms Cull also predicted there would be problems with the proposed relaxation N.Z. Bar Association Newsletter. September 2006. Page 4

Warm support for hot tubs T

he use of “hot tubs” for dealing with expert evidence was strongly endorsed during the final session of the New Zealand Bar Association conference.

Justice Rodney Hansen said the hot tub procedure had been used in the Air New Zealand & Qantas v Commerce Commission case, over which he had presided. Amendments to the High Court Rules in 2002 introduced provision for pre-trial conferences of experts, and for panels or “hot tubs.” Hot tubs involve all experts giving evidence during the same period, typically having 15 minutes for an opening statement and 10 minutes to comment on the statements of other experts.

Justice Hansen said he was in no doubt at all that the hot tub method was absolutely right for the Air New Zealand case and should be considered for any case involving expert witnesses.

It had meant considerable time savings in that case – the evidence would have taken twice as long if the traditional adversarial process had been used.

Another advantage was that critical issues had emerged in something akin to a structured debate. By the end of the process, said Justice Hansen, so many issues had been teased out that it was possible to put to the protagonists propositions which were at the heart of the case. The process assisted judges in getting the very best from experts, freed from the constraints imposed by lawyers’ questions.

Justice Hansen said that lay assessors were required by the Commerce Act for most substantive issues dealt with in the High Court. Lay assessors were chosen for their particular knowledge and experience of industry, economics, commerce, accounting or other fields.

The Air New Zealand & Qantas v Commerce Commission case had confirmed the necessity for involving lay observers, said Justice Hansen. Economist and company director, Kerrin Vautier, had been the lay observer in that case.

Justice Forrie Miller, who presided over the Commerce Commission v New Zealand Bus case, said a panel of experts

had also been used at that hearing. He said the striking feature of the panel approach was its efficiency. Everyone in court could be speedily oriented to the relevant issues. Justice Miller said it was a simple matter for a judge to check the experts’ views, and he was able to leave each issue with a high degree of confidence that he had understood it. It had the air of a debate among professionals, “which is attractive to a judge.”

Justice Miller said he had identified no disadvantages of the process.

However, he noted that the procedure was demanding for counsel, with both examination and cross-examination being far more complex. Justice Miller ● Cont. on p.6

Next Newsletter publication date: December 2006

Continued from page 4

New Evidence Bill: Outcome still uncertain hearing. She said the de bene esse rule enshrined in clause 14 of the bill could become the resort of judges who had insufficient time to deal with pre-trial applications.

Barrister Johnathan Eaton said the bill was an excellent collation of the rules of evidence, but he was concerned about its far-reaching, overall impact and supported Justice Baragwanath’s proposal for the creation of a committee to oversee the new rules. He also predicted that the new regime would lead to delays in trials, and would increase both duration and costs because there would be considerable numbers of interlocutory applications and appeals.

Mr Eaton said the bill “subtly introduced significant changes”. The advantage of a common law system of

evidence was that there were rules, but flexibility was left to judges including, pivotally, provision for recognition of the interests of justice. He said he was concerned that the bill marked a “gentle, backdoor erosion” of an accused’s right to silence, which Mr Eaton described as the start of a “slippery slope”. He said it introduced a blurring of the essentially different roles of judges and juries in criminal trials.

The bill’s purposes clause completely failed to refer either to the New Zealand Bill of Rights Act or to the interests of justice. The court process could be brought into disrepute if the 200-clause bill led to judges and lawyers spending large amounts of time during hearings combing through it seeking answers to specific issues.

Mr Eaton described the introduction

of a requirement to give notice in relation to hearsay evidence as a major departure and an erosion of an accused’s right to silence and the right of the defence not to give notice in advance as to whether the accused intended to give evidence.

He also criticised the new provision permitting the giving of evidence not only of prior convictions but also of previous offences with which a person had been charged, stating that it was “extraordinary and a complete departure from recognised principles”.

Voir dires would, he said, become “flavour of the month,” while the provision in clause 118 enabling a party to request that a judge give a warning in relation to evidence would lead to both parties scrapping “tooth and nail” about warnings at the end of the evidence.

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N.Z. Bar Association Newsletter. September 2006. Page 5

Continued from page 5

Warm support for hot tubs

described the benefits of the panel approach as “compelling” and said it would be useful in any case in which expert evidence played a prominent role.

He said the pre-trial conference process was significantly less helpful and more time-consuming than the panel procedure.

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ommenting on the two papers, Queen’s Counsel Colin Carruthers said the issue to consider was whether it was an adversarial or an inquisitorial system which was wanted. He said he had previously seen no reason to depart from the ordinary way of giving evidence, but had been one of the counsel in the New Zealand Bus case and had been advised at the outset case that a hot tub would take place. He said there had been some object lessons for him in the process, and two particular benefits had been apparent.

The first was that, although experts naturally adopted views which supported their own opinions and the sides they were called for, when a hot tub was used witnesses took a far greater lead from the judge and from other experts.

This meant that the method focused witnesses far more strongly on the integrity of the process, rather than on partisan concerns. Secondly, judges benefited from hearing all of the expert evidence at once and being able to test it on a single occasion.That resulted in a clear saving of time.

Queen’s Counsel David Goddard said he held the strong, unqualified view that, at least in Commerce Act cases, the hot tub was a better way of introducing expert evidence than the traditional method. A practical advantage was that the panel approach was much quicker, but, above all, it teased out the real issues and got them answered in an efficient way.

Mr Goddard said the ability to refer a question asked in cross-examination to one’s own expert created an

At the conference: Justice Forest Miller (left) with Justice Rod Hansen.

enormously strong discipline on experts to be relevant and moderate. “It really discourages immoderation,exaggeration, overstating.” This was because experts realised that their statements would immediately be tested against the views of another expert, meaning that they answered briefly and efficiently and did not overstate their position. Mr Goddard said he did not consider the process was inquisitorial. It could be very vigorous, and was good at encouraging sensible and responsive answers and both clarifying and obtaining responses to questions.

He said he had acted for the defendant in Air New Zealand & Qantas and did not feel at a tactical disadvantage because the process did not provide for a gap between the giving of the plaintiff’s expert evidence and that of the defendant’s expert. Mr Goddard did

not believe that the benefits of panels were limited to Commerce Act cases.

The process should probably be used in other types of cases so that it could be ascertained which hearings it was most suitable for.

Pre-trial conferences of experts, on the other hand, produced very bland answers. He queried how useful such a process was. At most, the procedure was useful in flushing out issues, rather than in answering them.

Justice Ipp said that the use of a single, court-appointed expert had initially been trialled in a small way in Australia, but had proved extremely effective and was now spreading to a range of different courts.The process was speedy, resulted in many cases being settled, and liberated the expert from the extremes of the adversarial approach.

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N.Z. Bar Association Newsletter. September 2006. Page 6

New methods needed to control unreliable demeanour findings T

he legal system must develop methods of exercising control over demeanour findings because of their unreliability, New South Wales Court of Appeal Justice David Ipp told the opening session of the New Zealand Bar Association’s 2006 conference.

Justice Ipp discussed fact finding, and, in particular, whether the principles were understood or whether too much was left to judicial instinct. He noted that the human memory was unreliable and said that the wider community would refuse to continue to accept some traditional methods of judicial decision-making when it became aware of how inaccurate they were. Witnesses’ testimony could be deliberately untruthful, but there were many other causes of inaccuracy in testimony, including imperfect observation, faulty memory, self-interest and an over-active imagination.

Justice Ipp said that little was more deceitful than a half truth and judges must accordingly take care to differentiate between a witness who is being honest or deceitful and a truthful witness who is giving accurate or inaccurate testimony. He noted that a significant amount of recent psychological research had identified severe shortcomings associated with many aspects of memory.

A striking example of this was when an El Al cargo plane crashed into an apartment building near Amsterdam and 193 people were asked whether they had seen television footage of the plane striking the building. Although the crash had not in fact been captured on film, 55 per cent of respondents claimed to have seen it on television. Two-thirds of a group of law students claimed they had seen the footage, with some even providing details.

Justice Ipp pointed to demeanour findings, in particular, as being “often idiosyncratic and unpredictable”. He said people’s body language could be helpful in determining whether someone was

telling the truth, but it was difficult to put the right construction on such clues.

Cultural and ethnic differences could also cause serious difficulties for judges making demeanour findings.

“It is the absence of rationality that makes demeanour findings so arbitrary, so ephemeral, so uncertain, so personal and subjective, so susceptible to subconscious prejudice, so susceptible to error.”

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ustice Ipp said cognitive illusions, prejudices and biases could all impair accurate fact finding. He advocated appropriate self-understanding and self-knowledge on the part of judges to combat the harmful effect of these influences. He also suggested that judicial education in this area would be helpful, criticising the failure of both lawyers and judges to adopt an interdisciplinary approach to understanding the issues with memory and recollection of events. Justice Ipp recommended that, in deciding which witness or version of events to believe, judges should focus on probabilities and inconsistencies, rather than on demeanour. Contemporaneous documents, the probabilities and consistency of the witness’s version, and other facts found should all be considered, with demeanour being consigned to the bottom of the list of factors.

Justice Ipp said that, to keep pace with current knowledge of the mind

and personality, the law must develop some means by which control could be exercised over demeanour findings. Appellate courts should regard demeanour-based findings of fact, contrary to the probabilities, as appealable error if adequate reasons were not given. The “virtually untrammelled” power of trial judges to make final decisions affecting the fate of individuals on the ground of what the judge happened to feel about witnesses’ physical reactions when testifying, was an anachronism in a system of justice which prided itself on objectivity and rationality.

Justice Ipp said there were signs in Australia of a move away from the traditional view that appellate courts should not reverse the decisions of trial judges on questions of fact unless the decisions were shown to be wrong. It was as yet unclear how much of a shift away from this approach was occurring, but judges had indicated that reliance on the subtle influence of demeanour required careful consideration before it would be permitted to trump appellate intervention.

Supreme Court Justice Noel Anderson discussed issues of onus and standards of proof, noting that, even in the criminal sphere, the standard of proof must admit the possibility in marginal cases that an innocent person might be convicted. Reducing that risk ● Cont. on p.8

Reminder to members

Caltex Starcard is now available to members Caltex has offered NZBA members a discount of 4 cents per litre off the regional price of petrol which equates to 2.2 cents per litre discount off the pump price. Additional cards are available to staff and family on the same account. To take advantage of this great offer simply return the completed application form sent to you in July, directly to Caltex.

N.Z. Bar Association Newsletter. September 2006. Page 7

Year of achievement, some disappointments, and planning for a new legal environment An abridged version of the president’s report presented to the AGM

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he 2005-2006 year has, without doubt, been a year of achievement, tinged with some disappointments. It has also been a year of planning for the future in a new legal environment that poses daunting challenges but also exciting opportunities.

The achievements include continued membership growth, increased benefits to members, increased influence and, perhaps most important of all, a greater sense of camaraderie among barristers.

Membership growth, on one view, has been spectacular over the past two years. The numbers are 2004 (500 full members and 75 associate members), 2005 (528 full members and 77 associate members) and 2006 (586 full members and 79 associate members).

In other words, 90 new members in the past two years.

With 20 per cent of the practising profession now at the separate bar, barristers have a strong interest in

ensuring that the new regulatory environment does not develop in ways that are hostile to the way in which they practise law. Realistically, it is only through a strong, fully representative, professional body that is unambiguously dedicated to protecting that interest that that goal will be achieved. I would find it unappealing to conclude that there are any of our number at the separate bar that would not see the logic of that position and act upon it. ● Cont. on p.9

Continued from page 7

Unreliable demeanour findings

was a function not merely of the weight or quality of the evidence, but also of the experience of counsel and of the judge.

Justice Anderson said he doubted that barristerial experience prior to appointment to the bench would provide a significant advantage in the context of fact finding. “What are needed are analytical ability, clarity of expression and the confidence to distinguish between relevance and importance. Those are largely a matter of personality.”

Justice Anderson said it was understandable that specialist practitioners should wish for specialist judges, but the judiciary was an institution with a broad perspective.

“It must not restrict itself to sectional interests, however influential those might be in a particular context. On a practical level it must be recognised that not only are we a relatively small community, but also that some areas of the law seem, in certain personal or professional contexts, to be more interesting, or less stressful, or in some other way impact less negatively on a judge’s life than others. We simply do not have the

numbers for judicial specialisation in the higher courts,” Justice Anderson said.

On the efficacy of written briefs, this depended on how they were used.

They had value if limited to informing other parties about what a proposed witness was expected to say in evidence.

However, if it was thought that they reduced trial time or informed the judge, that was “absolutely wrong”. Justice Anderson said that his experience was that written briefs were more likely to waste time than to save it, and he had no doubt that they increased costs for litigants. His view was that leading evidence in the traditional way was more effective and efficient.

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ueen’s Counsel Alan Galbraith, commenting on the two papers, said that, although New Zealand could not afford judicial specialisation of the type which operated in the United Kingdom, some cases required specialist knowledge and should be assigned to judges with the requisite background, rather than being randomly assigned.

Mr Galbraith said that he heartily endorsed Justice Anderson’s views about written briefs. Written briefs

were “collusive statements prepared by lawyers, and as such were inconsistent with the entire basis of the legal system”. Written briefs had become a vehicle for the irrelevant, and were also preventing junior counsel from obtaining experience in leading evidence. Mr Galbraith said the profession should in future be seeking to reduce the number of rules and amount of paper produced, but instead it appeared that the trend was in the opposite direction.

Queen’s Counsel Bill Wilson agreed with Mr Galbraith’s comments both about specialisation and about written briefs. He described it as “little short of bizarre” that the common law had developed rules against the use of leading questions in cross-examination, yet nowadays counsel asked the ultimate leading question: “Read your written brief.” Mr Wilson said that, where there was a statutory right of general appeal, that right should not be read down by an intermediate appellate court by restricting appeals on the facts. Although permitting appeals on the facts raised concerns about increases in the length of appeal hearings and the burden on appellate courts, appellants would still have to discharge the same onus.

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N.Z. Bar Association Newsletter. September 2006. Page 8

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President’s report to AGM During the year, the Council launched the bulk-buying scheme devised largely by Miriam Dean QC, a Council member, with members now able to access substantial discounts from law book companies, stationery suppliers, telecommunications companies, rental car companies, petrol and other commodity suppliers. In addition, the Council re-visited our long-standing professional indemnity insurance arrangements with Aon and instituted a competitive tender process. The outcome was that Aon remains as the broker for the Association’s scheme but with more attractive terms for members and a greater understanding between Aon and the Council of the mutual benefits of establishing a closer working relationship. Looked at in purely monetary terms, the subscription for membership is recoverable many times over by members who take advantage of the extremely favourable insurance and bulk buying schemes.

The Association continued its policy of making submissions on matters and issues of particular concern to barristers. An increasing trend is now apparent for the Association to be invited as a matter of course to respond to proposals that are under consideration by regulatory and rule-making bodies. This calls for a considerable amount of work and Council members have responded with diligence. It can be expected that there will be a further escalation of this work

over the next year, especially in relation to New Zealand Law Society proposals for the new regulatory framework and in responding to continuing initiatives of the Rules Committee, whose appetite for procedural reform in the High Court and the District Court grows at an astronomical rate.

Greater collegiality has been achieved not only through the annual conference and newsletters and traditional bar dinners for new silks

❛ Greater collegiality has been achieved ❜ during past year but also by the Council continuing its policy of conducting its meetings in different centres and combining these with lunch or evening functions for local barristers. The conference at Queenstown last August was an outstanding success with a record attendance of 100 members. We were fortunate to be able to have as speakers for the keynote session on Supreme Court advocacy Justice Bastarache of the Canadian Supreme Court and Professor Jack Greenberg, the celebrated US civil rights lawyer who appeared as counsel in the landmark case of Brown v. Board of Education over 50 years ago. Our

own Chief Justice, Dame Sian Elias, also contributed to that session. Her continued support of Bar Association activities is greatly appreciated.

I do want to say how significant I think the local functions accompanying Council meetings have been. The opportunity for Council members to meet with local barristers and the exchange of views on topical issues has been invaluable. It is hoped too that they may generate more frequent, informal meetings at local bar level.

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ar dinners for new silks were held during the year in Wellington and Auckland. I have spoken on other occasions about the disappointment over the small numbers of silks appointed in the last two years. In 2005, only one of four appointees was a fulltime practising barrister – a statement not intended to derogate from the worth of the other three but intended to highlight the fact that litigants are not being adequately served by a senior bar that has strength in numbers and diversity of experience and skills. In 2006, despite a huge push being made at all levels of the consultative process, we were rewarded with a miserly two appointments only. Frankly, I regard this as an insult to the middle bar which, in my view, is very strong.

At the Council level, work has continued on major issues that have been at the core of the bar’s existence, ● Cont. on p.10

Council keen to co-opt The Council is most grateful to members who offer their specialist skills to assist in dealing with relevant issues as they arise. The Council wishes to express its particular gratitude to David OʼNeill from Hamilton for his invaluable input during the recent renegotiation of our professional indemnity insurance package. Thanks, David.

Please contact any members of Council if you are happy to be co-opted on an issue of special interest.

N.Z. Bar Association Newsletter. September 2006. Page 9

Continued from page 9

President’s report to AGM including notably the on-going debate about the intervention rule and the effect that its abolition might have on the identity of barristers and the question of training of young barristers.

As members will know, the survey of opinions on the intervention rule split almost exactly down the middle between those who wish to see the rule retained in its entirety or with relatively modest modification and those who would wish to see it wholly or substantially abolished. The Council has looked at developments in all comparable jurisdictions and expects very shortly to publish a report with recommendations that would see some modification.

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n relation to training, the Council is of the view that the Association should play a major role in the training of young barristers and that any failure on our part to accept that responsibility will inevitably lead to that function being assumed, under statutory powers, by others.

This has led also to the Council giving consideration to the bigger question of how the Association should seek to position itself in the new professional environment that has been established by the Lawyers and Conveyancers Act 2006. It has been apparent to me for some time that, whether we like it or not, the Bar Association must step up and become a much more professional body.

We have managed well so far over the years by virtue of the willing voluntary efforts of successive presidents and Council members, aided by the work done for most of the life of the Association by our part-time secretary Gené Tibbs (about whom I will say more shortly). However, we have moved a very long way from an Association that in the early years put on an annual conference and bar dinners, published occasional newsletters and spoke out from time

to time on issues of importance to the bar or to the judiciary.

Following a review of the situation by a Council sub-committee, this meeting is being asked to approve an amendment to the rules of the Association that would enable the appointment of an executive director (separate from the secretary) who would assume a much wider role than that traditionally performed by the secretary and who in particular would undertake initiatives that would be brought to the Council for approval and subsequent implementation.

Another area where the Bar Association is being drawn into greater participation is the international arena.

❛ The Bar Association must step up and become a more professional body ❜ My predecessor, Robert Dobson QC, attended a conference in South Africa a few years ago and made very good contacts with bar leaders which he has passed on. Jonathon Eaton, a current Council member, attended a conference a few months ago in London dedicated to an examination of the role of bar associations, and Chris Gudsell and Terry Sissons, also members of the Council, have made good contacts with bar leaders and associations in Australia. Again we have much to learn from Australian experience and efforts will be made in the coming year to build on relationships there.

Recently Gené Tibbs tendered her resignation as secretary of the

Association in order to commence a business with her husband. She has served the Association for over 12 years and worked with every president, other than the founding president, Ted Thomas QC. In that time, she has organised and attended 15 conferences and organised a further three as well as 20 bar dinners. She has overseen the publication of 24 of the 32 bar newsletters published to date. She has had sole responsibility for all administrative and accounting work, run Council elections, administered our scholarship programme and of course Council meetings. All of these tasks have been performed by her diligently and with absolutely no fuss.

Speaking personally, I have found her institutional knowledge second to none and this has been invaluable at times.

The Association is grateful to her and wishes her all the best in her new venture.

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hile I was compiling this report, the news came through of Lord Cooke’s death. This is not the occasion to deliver a eulogy other than, very shortly, to acknowledge his obvious greatness as a jurist. He was a strong supporter of the Bar Association and at our inaugural dinner said that he hoped and expected the Association would quickly become the true defender of the Independence of the judiciary and the legal profession and of the rule of law. Earlier this year, he was made a life member of the Association (a status which, through inexcusable oversight, was not conferred on him much earlier). In responding, he said that it was an honour which he much appreciated and expressed the hope that the Association would continue to flourish. “The interests of the independent bar”, he said, “continue to lie close to my heart.”

Jim Farmer QC Postscript: An obituary on Lord Cooke will appear in the next newsletter.

N.Z. Bar Association Newsletter. September 2006. Page 10

Fiona Bolwell

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iona B Bolwell BA, LLB (Hons), M.Jur, barrister, died at Auckland on June 10, 2006, aged 52. Fiona will be remembered by many members of the bench and legal profession from throughout the country for her competence, energy and tenacity as an advocate. Her intelligence and capacity for hard work were impressive, as was her ability to get on with life, whatever the adversity. Her sense of humour and flair for making things fun were engaging and endeared her to many.

Fiona was born in Dunedin, the youngest of a family of three daughters.

She graduated LLB (Hons) from Otago University and after being admitted to the bar in 1976 began work with a Dunedin law firm. In 1980 she moved to Christchurch and worked at Young Hunter and Co. Three years later she worked with David Williams at Russell McVeagh, Auckland, for a short period, before moving to Tauranga. During the 10 years she lived in Tauranga she was initially at Maltby Hare and Willoughby and then became the litigation partner at Cooney Lees and Morgan, where she had a general civil and commercial litigation practice.

In 1993 she was headhunted by the Solicitor General, John McGrath, and joined Crown Law in Wellington.

She was Crown Counsel in the Public Commercial team and dealt with a variety of commercial matters and disputes.

She also assisted the Solicitor General in giving advice to ministers. She was an adviser to the Minister of Commerce on the process adopted in relation to the establishment of the Energy Companies pursuant to the Energy Companies Act 1992, and appeared as senior counsel in the High Court and the Court of Appeal for the Minister in the judicial review applications which arose out of that process. She advised Treasury on a number of matters including the conduct of proceedings against the Crown in relation to asbestos contamination and health related issues. She appeared with the Solicitor General in the Court of Appeal on a case concerning the liability of the judiciary for negligent acts.

OBITUARIES In 1995 she was appointed leader of the Taxation and Public Finance Team at the Crown Law Office and in that role for the following four years was required to advise the Department of Inland Revenue on a variety of issues.

She appeared for the Commissioner of Inland Revenue in a number of tax and judicial review proceedings in the High Court and Court of Appeal and she appeared five times before the Privy Council.

While she was with Crown Law Fiona chaired a multidisciplinary committee set up by the Tax Avoidance Unit in the department to address a wide range of issues in relation to various corporate structures and trusts.

Following her partner, barrister Dan Gardiner, Fiona moved her family to Auckland in 1999 and commenced

Fiona Bolwell outside the Privy Council

practice at the independent bar. Along with John Fogarty QC, she was instructed by the Solicitor General to act on behalf of the Commissioner of Inland Revenue in the High Court hearing of the case of BNZ Investments Limited v CIR — a test case in relation to arrangements ● Cont. on p.12

Adrian More (This is an abridged version of the eulogy given by David More, barrister, at the funeral of his brother, Adrian M. More LLB, which he has kindly agreed we may reprint.)

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t is not possible in a few minutes to do justice to the person Adrian was — first and foremost a devoted husband and father, a lawyer, a writer, a speaker, an actor. Adrian’s most lasting legacy will be seen in who and what he has left behind — his family and friends, and the memories we have of him. One of the greatest tributes is the number here today.

I want to start with a mention of Sue. The rock around which the currents of the various Broad Bay Mores ebb and flow. The love, devotion, care and patience she has shown to Adrian during his illness have been an inspiration.

Adrian certainly knew and appreciated this. In an email to our eldest sister, Johanna, in December 2003 he wrote: “Sue is flat out in the shop. She has expanded it, building on an annex for all her dinner sets. A woman running an antique shop in Dunedin was heard to say to a customer friend of mine the other day, ‘Oh there is not much point stocking china and crystal, that woman at Broad Bay has the market sewn up!’

Well, I am married to that woman at Broad Bay, and she’s a bloody cracker!”

Adrian and I shared a number of things in common. One is our wives’ names. Adrian described it this way: “One question I am often asked is why David and I decided to share chambers.

Well we have two important things in common. The first relates to our wives.

Both our wives are called Sue. It’s not so much a name as a mission statement.And its tax deductible. So we can appreciate our wives at home, and depreciate them at work.”

Adrian was the third of the seven More children, 27 months younger than me. We were always close, good friends, as well as brothers. When our maternal grandparents were living in the upstairs ● Cont. on p.12

N.Z. Bar Association Newsletter. September 2006. Page 11

Obituaries Fiona Bolwell the subject of inquiry in the Winebox Inquiry. The proceeding concerned the general anti-avoidance provisions of s99 of the Income Tax Act 1976. She was engaged by the Auckland District Law Society to assist with its investigations regarding complaints made to it under the Law Practitioners Act 1982 about the conduct of partners of a large Auckland law firm.The complaints arose out of the failure of partnerships formed for clients for the purpose of investment in bloodstock, and concerned not only the formation and promotion of the partnerships but also the conduct of the law firm’s defence of the proceedings which followed their failure.

Fiona established a busy practice at the Auckland bar with a wide variety of work, but specialising in taxation.

She had numerous appearances before the High Court and Court of Appeal.

She was appointed a Cease and Desist Commissioner for the Commerce Commission.

Fiona was a feminist. She worked hard promoting the interests of women practitioners. She was a member of the Auckland Women Lawyers Association executive in 2000 and had been a member of the executive of the Wellington Women Lawyers Association.

While in Christchurch she was one of the women who attempted to form an association for women lawyers, only to find their recognition of the desirability of such an association was not widely supported. No doubt their pioneering attempt resulted in the Christchurch association being formed a few years later.

— continued from page 11

mother she stroved to manage her practice so as to have as much time as possible with her much-adored daughters. The hours after-school and the weekends were for them and the carefully planned holidays the family regularly enjoyed were famous amongst friends and colleagues.

Fiona pursued a wide range of activities and interests including politics, women’s issues, literature, dance, music, theatre, films, and as a proud Otago girl anything Scottish (especially music and dancing). Fiona competed in dancing, music, speech and drama competitions through her school-years and continued competitive Highland dancing until she was in her early 20’s. She was an enthusiastic bush-walker and swimmer and enjoyed the gym and yoga and was a very keen gardener. She was a member of the executive of the Wellington District Law Society. More recently she actively supported Dan with his political interests.

and married Sue. For a brief period he joined me as a clerk in our father’s office and then worked for Aspinall Joel and Hall, clerking mainly for Reg Hall. In the days when we were admitted the law course consisted of 19 units. Pass 17, you were admitted as a solicitor, get the final two, and you were admitted as a barrister.

Adrian was one who was admitted twice and spent one year as a solicitor.

That entitled him to appear in the Magistrate’s Court, but not the Supreme Court. However, he found a provision in the Insolvency Act which permitted a solicitor to appear in the Supreme Court, and his first appearance in that jurisdiction was in support of an application by a bankrupt for discharge

Overall, Fiona had an astonishing ability to make and maintain enduring friendships. Friends from all over New Zealand travelled to visit her at the hospice, and to attend her funeral.

From early 2003 Fiona continued to practise as she courageously fought bone cancer. She died 12 days short of the date set for the stem cell transplant it had been hoped would extend her life. Fiona is survived by her daughters Emma and Meg, her partner Dan, and her sisters Jan and Sue. — Sonja Clapham

Adrian More

Fiona married and had a family. During the last years of the Tauranga days, by which time she was a busy litigation partner and the mother of two very young daughters, she assisted with the running of a commercial orchard when ill health prevented her husband from operating it alone.

part of our home, our grandmother did not have much confidence in Adrian’s potential. Our grandfather was in the habit of emptying chamber pots out the window onto the garden. When Adrian followed his example, but doused his grandfather, she was heard to say: “It will be a sad day for John and Mary when they find out about Adrian.”

Fiona was living in Wellington when her former husband died. As a solo

Adrian followed the family tradition and studied law. During this time he met

Adrian More

from bankruptcy. Sir Trevor Henry was somewhat put out to see this wigless person appearing before him, and Adrian had to take his Honour through the jurisdictional provisions of the Insolvency Act. The case was one of principle to Adrian. His client had owned a paper delivery run, which would usually attract some goodwill on a sale. On the client’s bankruptcy the newspaper cancelled his delivery run and resold it at a profit to the paper, depriving the creditors of the benefit of the goodwill. The paper was the only creditor opposing the application for discharge. Adrian was successful. ● Cont. on p.13

N.Z. Bar Association Newsletter. September 2006. Page 12

Continued from page 12

Obituary: Adrian More

He graduated LLB in 1971 and was admitted in February. In the same year Adrian moved to Timaru and was employed by Petrie Mayman and Timpany, later to become Petrie Mayman Timpany and More.

Sir Clifford Skeggs was a client of Reg Hall, and loaned Adrian one of his Skeggs Fisheries trucks to move his furniture to Timaru. He and I packed the truck, and covered everything with a large tarpaulin. In those days the restrictive transport licensing laws gave a licence to carry specific goods over a specific route. There were clearly many non-fish-like shapes under the tarpaulin, and Adrian had not driven much further than the Northern motorway before he was stopped by a traffic officer. With his usual flair, he talked himself out of any ticket. However, Sue says their Timaru flat had a distinctly fishy smell for some time.

Adrian very quickly involved himself in the Timaru community. He was the first chairman, under Tomorrow’s Schools, of the board of trustees of his children’s primary school. He chaired the committees to bring breast screening to South Canterbury, and to research the first 41 days of babies’ lives, which included cot deaths. He was a member of Round Table, and the council of the District Law Society. When he returned to Dunedin in 1995, he quickly became a council member and then president of the Otago Law Society, and a member of the council and executive of the New Zealand Society.

Most Timaruvians will remember Adrian for his involvement in theatre and the arts. He graced the stage in repertory, and as the dame in pantomime.

One of his favourite and best known roles was as Macbeth in the Scottish play that cannot be named. He kept as prized possessions his sword and his replica head. Sue was not impressed on the occasion Adrian placed a bolster in the bed, placed the head on the pillow, and then called for her to come to the bedroom feigning serious ill-health.

Adrian continued his writing inTimaru, including a contribution to McPhail and Gadsby. He was in demand as an afterdinner speaker; he took part in a number of celebrity debates; he even roasted David Lange. He was the regular master of ceremonies for civic events, including Top Town, and the South Canterbury Arts Festival. However, the mere listing of Adrian’s achievements does not do justice to Adrian the person. His warmth and kindness; his wit; his sharp intellect; his readiness to help others.

A

drian and Sue returned to Dunedin in 1995, and he and I set up as barristers establishing Octagon Chambers on December 1 that year. We were joined by Anne Stevens in 1998. Adrian was specialising in resource management law, which regularly took him out of Dunedin. He was sufficiently well respected by the judges of the Environment Court to be offered appointment to the bench, which he declined.

We had 10 very good years together in chambers. We discussed ours and our clients’ matters, and solved all the world’s problems over the occasional gin at the end of the day. When Adrian was in hospital earlier this year, I would visit him to discuss the Gordon file. I would arrive, open my briefcase, and

out would come the bottle of Gordons, some tonic, and two glasses.

Adrian continued to be in demand as an after-dinner speaker, on his return to Dunedin. In one of his later speeches he commented on judicial decision writing, and in particular a certain judge who included punctuation as he dictated his decisions. About this Adrian said: “There’s no demand for that sort of stuff. It can lead to all sorts of confusion, as the following example from an English running down case discloses. The defendant was driving his truck, comma, a Comer, comma when he came to a stop, stop. The truck was carrying shelving attachments, bracket, some brackets, bracket. The truck hit the plaintiff injuring him and damaging the truck. Indent. It rolled over as these trucks are wont to do, inverted commas.

The plaintiff was taken to hospital and had half his bowel removed, semicolon.”

It is ironic that it was Adrian’s colon which ultimately brought about his death.

Goodbye brother. You have been a great friend and a great brother. Your suffering is over. May you rest in peace.

A lesson for silks A lesson in advocacy for silks has been provided by the England and Wales Court of Appeal’s Civil Division in the course of a judgment dismissing an appeal relating taxation on goods.

Lord Justice Chadwick delivered a 100-paragraph judgment setting out the reasons for the appeal being refused and then finished his decision with a four paragraph “postscript”. In it, he said that he considered it necessary to add some observations as to the manner in which the appellant’s case had been presented to the court. The skeleton argument filed in court on behalf of the appellant, Lord Justice

Chadwick said, went “beyond what can be regarded as acceptable written advocacy: it exceeds the bounds of propriety.”

He said he was not protesting about “its inordinate length, nor about its discursive quality, nor about its frequent and unnecessary resort to hyperbole; although all those unappealing features are present. My concern is with the repeated aspersions that are cast in that document on the intellectual honesty of the High Court judge from whose decision this appeal is brought.” ● Cont. on p.14

N.Z. Bar Association Newsletter. September 2006. Page 13

Cont. from page 13

Lesson for silks Assertions in the skeleton argument included that the judge “has often completely misrepresented the text of documents” and “deliberately misinterprets” part of the review decision. Other statements included a description of one of the judge’s findings as “a semantic game played by the High Court” and of another as “a classic example of the trampling over the evidence in which the High Court has allowed itself to indulge.”

Lord Justice Chadwick noted that, although the skeleton argument was signed both by a Queen’s Counsel and by a member of the Brussels bar, the Queen’s Counsel accepted sole responsibility for its contents. The judge went on to say that fearless advocacy was one thing, but intemperate advocacy was another.

“Advocates, once sure of their ground, must not retreat for fear of, or in the face of, judicial displeasure, and judges for their part will respect such fearlessness,” he said. “None of this diminishes the courtesy which characterises the relationship between bench and bar. An advocate who means to call in question not only the reasoning but the intellectual integrity of a judge, or a judgment, must be particularly sure of his or her ground; but if it is advanced with good reason and with proper courtesy, such a critique is fully within the responsible advocate’s remit. What is not acceptable is making such allegations without good grounds.”

The examples he had given, said the Lord Justice, went beyond either strong advocacy or simple hyperbole. They were damaging assertions about the intellectual integrity of the judge which no advocate should make unless he or she was prepared to substantiate them.

Sony Computer Entertainment Europe Ltd v Revenue and Customs [2006] EWCA Civ 772 (15 June 2006).

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Bar chat ...

The Association welcomes the following new members to the independent bar and/or association: Stephen Price, Wellington Tim Cleary, Wellington Sally Mckechnie, Wellington Jane Glover, Waiheke Island Grant Wilkin, Hamilton Jennifer Binns, Hamilton John Woodhouse, Auckland Suzanne Robertson, Auckland Andrea Halloran, Auckland Charlotte Griffin, Wellington Elizabeth Bulger, Christchurch Mark Colthart, Auckland Christopher Hogg, South Otago Rodger Pool, Auckland Barrie-John Partridge, Auckland ✷ ✷ ✷ ✷ The Bar Association had a dinner in Auckland in July to celebrate the appointment of the new silks, Brian Keene QC and Bruce Gray QC. It was a convivial evening and we heard how Bruce Gray, on reaching his midlife crisis, decided that better to buy a yellow Porsche than embark on a love affair! No doubt, the wiser decision. ✷ ✷ ✷ ✷

Congratulations to Shortland Chambers which reached a milestone this month with its 20th year anniversary.

There was, unsurprisingly, an excellent turnout from the Auckland bar and judiciary, as well as a host of instructing solicitors, to celebrate the event at a cocktail function at the Northern Club. The mayor, Dick Hubbard, was an invited guest.

Head of chambers, Julian Miles QC, paid tribute to the quality and dedication of the Auckland judges in carrying out what he described as “a difficult and often thankless task” and the co-operation and respect enjoyed between members of the independent bar.

Justice Peter Blanchard emphasised the importance of chambers such as Shortland Chambers and senior barristers in providing training for young barristers and noted the judiciary’s concern about the quality of advocacy before the courts. Particularly in the case of serious criminal appeals, he urged the senior bar to involve themselves, on a pro bono basis if necessary, to ensure the interests of litigants and the needs of the appellate courts are properly served.

First NZ Arbitration Day On June 9 the Arbitrators and Mediators Institute of New Zealand, in conjunction with the New Zealand Bar Association and the Society of Construction Law New Zealand Inc, held the inaugural New Zealand Arbitration Day at the Northern Club in Auckland.

The conference, which attracted a capacity audience of 70, was modelled on the very successful annual arbitration days run by the IBA. The first New Zealand Arbitration Day marked the 10th anniversary of the passing of the Arbitration Act 1996. That Act adopted the UNCITRAL model law in respect of arbitration and heralded an era of increased party autonomy and reduced judicial intervention in arbitrations.

The first speaker was David Williams QC, the then president of

AMINZ. His subject was “Arbitration as an Autonomous Dispute Resolution System”. The general theme of his address was that the Arbitration Act 1996 was intended to expand the powers of arbitral tribunals and reduce curial involvement in the arbitral process.

The aim of the Act was to limit the role of the courts to those occasions where it was obvious that either the arbitral process needed assistance or there had been a perverse arbitral decision that had ignored basic procedural fairness or exceeded the authority of the tribunal.

Ed Wyllie QC and Stephen Mills presented papers on a cost benefit analysis of arbitration v litigation. Dr Wylie dealt with the comparative speed, efficiency and confidentiality of arbitration. Stephen Mills looked at the ● Cont. on p.15

N.Z. Bar Association Newsletter. September 2006. Page 14

Minutes of Council Meeting T

The following NZBA subcommittees have been formed:

Apologies were received from Stephen Mills and Matthew WardJohnson.

Rules of Professional Conduct Committee: Christopher Gudsell (chair), Trevor Shiels, Terry Sissons.

Two members to be approached to join this committee.

he Council met on June 15, 2006 in Christchurch.

It was agreed to change the balance date to March 31 to allow the accounts to be finalized by the end of June and presented at the AGM a few months later. It was also agreed to propose an increase to membership subscriptions at the AGM. The website is to be updated to make it more interactive so it can become the main website for all barristers and a main source of communication to members. It will include easy access to the website and posting documents to keep content up-to-date and will also include a members’ chat area.

The April 2006 and May 2006 accounts were presented.

Jim Farmer QC moved that Christopher Gudsell be elected as vice president. Seconded by Tony HughesJohnson. Colin Carruthers has been coopted on to the Council.

Miriam Dean reported on bulk buying and was thanked for all her work.

Jim Farmer reported on Conference preparation regarding sessions and speakers.

Jonathan Eaton reported on his attendance at the International Bar Association’s Bar Leaders’ Conference in London.

The AMINZ first NZ Arbitration Day seminar was very successful and it is proposed that the Arbitration Day will be held annually.

Jim Farmer will be asking for an NZBA member to be co-opted on to NZLS Board sub-committees for rules of professional conduct and the appointment of senior counsel.

after election of 2006-2007 Council.

Senior Counsel Committee: Jim Farmer (chair), Stuart Grieve, Colin Carruthers and Christopher Gudsell.

Jim Farmer reported on a meeting that he and Stuart Grieve had with the Attorney-General.

Alternative publication options were considered for the Association’s newsletter. However, it was agreed to remain with present system.

The NZBA rules will be reviewed

Jim Farmer will take up Justice Randerson’s invitation to discuss the issues raised by the NZBA relating to the allocation of civil fixtures and setting down procedures generally.

Any requests received by NZBA for submissions/comments are to be circulated to Jim Farmer, Christopher Gudsell and Colin Carruthers for consideration. NZBA have been asked for comment on the trial in the Court of Appeal on the “15 minute rule” and for discussion at next meeting the growing gap between actual costs and scale costs.

Training/pupillage and continuing education items were deferred until the NZBA knows whether NZLS is developing rules.

Jim Farmer is to write to Dr Michael ● Cont. on p.16

Cont. from page 14

First NZ Arbitration Day

comparative costs recovery issues. He said that because of its more flexible approach to costs recovery, many lawyers considered that arbitration offered a more cost effective method of dispute resolution than the courts which apply a scale, which in the majority of cases is out of touch with the actual cost of litigation.

The keynote speaker, Michael Hwang SC, a renowned barrister and arbitrator from Singapore, spoke about challenging arbitral awards under the model law with particular reference to Singapore and New Zealand. With no right of appeal from arbitral awards being available under the model law, parties have to resort to applications to set aside an award on public policy grounds such as breach of the rules of natural justice.

Robert Fisher QC gave a paper dealing with appeals on questions of law — procedure and substance. He noted that the tension between party autonomy and judicial oversight lies

at the heart of most controversial aspects of the law of arbitration and is the principal issue when considering appeals.

In the final session Sherwin Williams gave an introduction to the proposed AMINZ Arbitration Appeal Tribunal which is designed to offer parties an alternative to the courts for appeals on questions of law.

The speakers were complemented by an impressive cast of commentators including Justice Paul Heath, Carol Durbin,Tomas Kennedy-Grant QC,Tony Dean, Jack Hodder, Graeme Christie, Justice Rhys Harrison, Terry Stapleton, Nick Davidson QC, Alan Galbraith QC, Barbara Hunt and John Larmer.

The conference was regarded by all who attended as a great success.

It is likely that future arbitration days will be held annually and that the Bar Association will have an ongoing involvement. — Terry Sissons

N.Z. Bar Association Newsletter. September 2006. Page 15

Practice development managers — why NZ barristers need to use their services

by Chris Patterson — chris.patterson@waterloochambers.net This is an abridged version of that originally submitted. The complete version can be requested from the author.

T

he New Zealand independent bar is unique in the absence of any coordinated or professionally managed practice development compared to its counterparts in Australia and the United Kingdom. I do not believe that this is attributable to the existence of a fused profession.

Rather, it may be as a result of the New Zealand independent bar having not achieved a sufficient level of maturity or strength. A barrier to a strong independent bar is the absence of investment into practice development.

I suspect that a significant number of NZBA members have no need to develop their respective practices for a number of reasons. The reasons may relate directly to why they went to the independent bar in the first place. Effective practice development creates opportunities that would not otherwise present themselves. Career objectives are more achievable within significantly reduced time frames and costs as a result of efficient practice development.

Practice development is more than just increasing one’s work load.

I believe many barristers equate a turnover of billable time with success.

However, a barrister’s turnover of billable time is a false measure of success. It is my view that the primary objective of practice development for the independent bar should be to increase access to work that is both interesting and inspiring.

A more important measure of barristers’ success is the level to which they are inspired and inspire others by the work they are involved in. There is a correlation between inspiring work and income. Another

important measure of success is the satisfaction which comes from knowing that it was the barrister’s particular skills and knowledge that made the key difference.

The primary objective of practice management should be to increase the quality of the briefs one receives, not the turnover of chargeable time. To achieve this there is likely to be a need to free up chargeable time. Some barristers can often be fatalists, believing that the brief they are being offered is the last instruction they will ever receive.

However, you have to free up your time to secure more interesting and inspiring briefs. Intelligent selection of briefs and instructions are two ways that can be achieved.

The amount of available work to the independent bar is not finite. The NZBA could assist in increasing the level of awareness among solicitors and professional clients about the advantages and scope of services that the independent bar can offer. Obviously, this will require some investment of time and money from the NZBA’s membership. I do not believe that the NZBA or the independent bar generally can be strengthened without such an investment being made.

I

have conducted some research into the role of a chambers clerk in New South Wales, Victoria and England. I have not been able to find an example of a chambers clerk being used in New Zealand. The understanding of a clerk here in New Zealand is completely unrelated to that found in Australia and the United Kingdom.

The role of a chambers clerk is multifaceted. Geoff Elliot, former senior clerk to over 30 English barristers, says that the job of a barristers’ clerk is a mixture of confidante, career manager, office manager, fee negotiator and salesman — with a bit of the football manager thrown in too.

It is often very difficult to find the

time to work on practice development at the bar. More importantly, there are certain aspects of practice development which amount to a very inefficient (albeit in some instances enjoyable) use of my time. A good practice development manager (PDM) gives far more cost efficient use of otherwise good chargeable hours. There are also few barristers who I would say are exceptional self promoters. I suspect that there are significantly more exceptional advocates who are unfortunately quite ineffective self promoters.

I have surveyed a number of solicitors regarding their views on barristers being represented by a PDM. They covered a broad range of practitioners. All of them were unreservedly positive about barristers using a PDM. I have set out below some of the key comments I received in relation to the perceived benefits of barristers using a PDM: ● Cont. on p.17

Cont. from page 15

Council Minutes

Cullen supporting the proposal from David Williams QC for a Judicial Commission.

Christopher Gudsell was thanked for his involvement in the review of the NZBA’s professional indemnity insurance. The Council also acknowledged its special thanks to David O’Neill for his assistance in this review and also in assisting Miriam Dean with bulk buying.

Tony Hughes-Johnson reported that the Chief Justice had advised that although there is a general expectation that those who accept judicial office will not return to practice, appointees are no longer required to give a written undertaking that effect.

Terry Sissons will be making enquiries with the New South Wales Bar Association seeking feedback on how the intervention rule is working in NSW. ■

N.Z. Bar Association Newsletter. September 2006. Page 16

Continued from page 16

Practice development managers ◆ Solicitors are busy and would prefer to liaise with one person, such as a PDM, rather than have to meet each of the, say, 15 barristers that the PDM represents; ◆ Solicitors do not have the time or the resources to keep up to date with who is good and in what areas.A practice development manager could act as an intermediary to overcome that problem; ◆ Solicitors do not expect barristers to keep them informed of their successes or the nature of their recent work even though that information is highly relevant. A PDM could attend to and manage such communications; and ◆ Solicitors generally only interact with a small pool of barristers not out of choice but due to limited opportunities. This can create difficulties for solicitors to secure the right horse for the right course when their preferred counsel is unavailable. A PDM could assist to widen solicitors’ pool of barristers they refer work to.

I have also discussed the issues raised in this article with a number of

Australian clerks. Senior Sydney clerks, Paul Daley and Mark Dally, summarise some of the key benefits of the NSW clerking system as being:

affecting their careers. The clerk can often act as a mentor, career counsellor and the provider of second opinions;

◆ The clerk is running a business. It is significantly more efficient to have a centralised delivery of the barrister’s collective business interests;

◆ A good clerk will take into account the barrister’s wider interests. One example is engaging a personal trainer for an individual and group to ensure that the barrister’s physical wellbeing is being addressed.

◆ Clerks are in a better position to assess both the actual and perceived market rate for fees. This can help avoid a barrister under-charging for a brief. It can also help avoid having barristers’ abilities wrongly assessed based on their charge out rates; ◆ Clerks provide a valuable service to solicitors in securing the services of the right available barrister for each particular brief. This can be particularly so when a solicitor’s first choice is not available. Solicitors are more likely to return to a particular set of chambers if the allocation of their briefs is well handled; ◆ Life at the independent bar can often be isolating. Unlike solicitors, barristers do not have the advantage of being able to confide in or have ready access to their fellow partners for second opinions on matters

Philip Greenwood SC of Eleventh Floor Wentworth Chambers in Sydney is a firm advocate for the benefits the chambers clerk/PDM system provided the clerk/PDM is capable and is representing an equally good floor of barristers. He summarises the key benefits as being: ◆ The promotion and representation of a barrister’s practice is more professionally handled and presented by a clerk; ◆ Referring on briefs, initially offered to him or her, is better handled by a clerk. This benefits the solicitor and therefore indirectly the barrister.

A clerk is unlikely to be accused of favouritism, having ulterior motives or simply getting it wrong. However, ● Cont. on p.18

NZ Bar Association 2006–2007 Council — Contact details President James Farmer QC

Ph: 09 358 7090 Fx: 09 358 7091

P O Box 1800

Auckland

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

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

Apartment 6A 6 Victoria St East Auckland

jamesfarmer@queenscounsel.co.nz

Treasurer Trevor Shiels

03 477 4030 Continued fromPh: page Fx: 03 47717320

Miriam Dean QC miriam@barrists.co.nz

Jonathan Eaton j.eaton@xtra.co.nz

Ph: 09 377 8959 Fx: 09 377 8960 P O Box 4111 Auckland Ph: 03 372 3466 Fx: 03 365 2592 P O Box 13-868 Christchurch

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

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

Ken Johnston k-johnston@clear.net.nz

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

Big changes in District Court Rules

trevor.shiels@barristerchambers.co.nz

Colin Carruthers QC crc@carruthers.co.nz

Kate Davenport kate.davenport@xtra.co.nz

P O Box 1219 Dunedin

Ph: 04 471 4275 Fx: 04 471 1195 P O Box 305 Wellington Ph: 09 302 3543 Fx: 09 309 1935

Bruce Gray QC

Ph: 09 309 1769 bdgray@shortlandchambers.c.nz Fx: 09 366 1599 PO Box 4338 Auckland Stuart Grieve QC stuart@grieve.co.nz

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

Stephen Mills

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

Adina Thorn adinat@xtra.co.nz

Ph: 09 307 9953 Fx: 09 307 9954 P O Box 4420 Auckland

stephen.mills@shortlandchambers.co.nz

N.Z. Bar Association Newsletter. September 2006. Page 17

Cont. from page 17

Practice development if the referral does go wrong then it will be the clerk’s fault as opposed to the barrister who would have otherwise made the referral; ◆ A good clerk will build, over time, loyalty with solicitors which ultimately benefits the barristers s/he represents; and ◆ A clerk is a good source for a second opinion on practice issues and can often be a valuable confidant.

So, efficient practice development can significantly improve the quality of work made available to barristers who are willing to make the necessary investment.

The NZBA may be well positioned to facilitate and assist with the practice development of its members.

The use of a PDM promoting the practices of a group of barristers to solicitors and corporate counsel located locally, around the country and abroad would signal the sign of a maturing and strengthened independent bar. Barristers’ chambers which are willing to engage a competent PDM will have a significant advantage over their colleagues who remain entrenched in using less efficient and effective methods to source quality instructions.

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COUNCIL MEETINGS Proposed dates and locations for Council meetings are as follows: 12 October 30 November

– Auckland – Palmerston North

Newsletter of the

New Zealand Bar Association

RAISING THE BAR: ANZSLA CONFERENCE 12 & 13 OCTOBER, AUCKLAND ANZSLA will be holding its conference in Auckland, 12 to 13 October 2006. Members are invited to log into the ANZLA website for further information on the event www.ANZSLA.com.au/events/?eventsD=4 N.Z. Bar Association Newsletter. September 2006. Page 18