At the Bar April 2014

At The Bar April 2014

Not What Company Directors Bargained For – Phillip Rzepecky Privileged to have practised – Simon Moore QC The World Bar Conference Tablet Technology

From the Executive Director INSIDE THIS ISSUE Pg 2 - From the Executive Director Pg 3 - From the Chief High Court Judge Pg 4 - Member Benefits Pg 6 - Not What Company Directors Bargained For – Phillip Rzepecky Pg 8 - Privileged to have practised – Simon Moore QC

Pg 12 - Valedictory speech – Justice Priestly Pg 16 - Valedictory session - Justice Rodney Hansen Pg 19 - World Bar Conference - Key Note Speakers Pg 20 - Obituary – Sir Ian McKay Pg 22 - Obituary – Alan Hassall QC Pg 24 - Leading Cases in Song – Susan Dugdale Pg 25 - Technology to make business easier - Scott Russ Pg 26 - iPad Apps for Lawyers - Ian Handricks Pg 28 - Audi RS6 Review - David O’Neill Pg 29 - Recent events Pg 30 - Recent events Pg 31 - New Members

EDITORIAL COMMITTEE Clive Elliott QC - Chair Tel: +64 9 309 1769 Email: elliott@shortlandchambers.co.nz Melissa Perkin Tel: +64 9 303 4515 Email: melissa.perkin@nzbar.org.nz CONTRIBUTIONS & ADVERTISING: Jacqui Thompson Tel: +64 21 679 061 Email: jacqui.thompson@nzbar.org.nz DESIGN AND LAYOUT BY Kirsten McLeod Tel: +64 9 834 2224 NEW ZEALAND BAR ASSOCIATION Tel: +64 9 303 4515 Fax: +64 9 303 6516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz P O Box 631 Auckland 1140

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By Melissa Perkin As this newsletter is sent out to you, another NZBA membership year begins. It will be a busy year for the Council and members of the various NZBA sub-committees.

at matthew.pedersen@lexisnexis. co.nz or ph +64 9 368 9515.

Registrations opened in early February and we have had an excellent response from both local and overseas delegates. We would encourage you to register early as space is limited. The deadline for early-bird registration is 30 April 2014.

For more information and to register, visit our website at www.nzbar.org.nz.

Course (7 – 8 September 2014) to be held immediately after the World Bar Conference at the same venue. This event has the support of the International Advocacy Training Council. It will involve a blend of workshops, lectures and performance assessment and focus in particular on appellate advocacy.

A number of the overseas speakers who attend the World Bar Conference will be presenting sessions and involved in the workshops and assessments. Numbers are strictly limited to 24 participants. More information will be available shortly.

Those wishing to pre-register their interest in attending are invited to contact NZBA Admininstrator Lisa Mills at nzbar@nzbar.org.nz .

Training Programme The Training Committee has welcomed the advent of webinar delivery of training. Our first webinar, World Bar Conference 2014 – Litigation Technology, was delivered 4 - 6 September 2014 on 20 March. More webinars are Organising committee Chair Kate planned during the course of the Davenport QC and Deputy Chair Simon year in an endeavour to make Foote have confirmed 22 speakers training available to a wider number from eight jurisdictions and put together of members. Already confirmed a programme designed to reinforce the are webinars with Professor Warren importance of the rule of law and the Brookbanks and barrister Ron challenges which advocates face when Mansfield on a Criminal Procedure Update on 8 April and on 7 May, working to ensure it is upheld.

Justice Wild, Justice Winkelmann The World Bar Conference will and Gillian Coumbe QC will present take the place of the NZBA Annual the first in an Advocacy Skills Webinar Conference. We are hosting the event Series entitled Written Advocacy. at the Heritage Hotel in Queenstown The World Bar Conference organising and have secured run of house which committee is finalising the details will add to the collegiality of the event. for a 2 day Advocacy Training

Member Benefits We have increased the member benefit offering this year and would encourage you to view the member benefit brochure sent out with your annual membership subscription.

More information is also available on the NZBA website and in an article later in this newsletter.

Of particular note is a new arrangement, the NZBA e-library plan, which has been confirmed with LexisNexis. The offer provides a significant discount on electronic and hard copy library products. This opportunity is based on the NZBA full members’ collective buying power and initiated on a minimum number of full members registering their interest. More information is available in this newsletter and on the NZBA website. Members who wish to know more and pre-register their interest with LexisNexis are invited to contact Matthew Pedersen, National Strategic Account Manager

Continuing Professional Development (CPD) Obligations As you will likely be aware, the New Zealand Law Society CPD Rules require all New Zealand lawyers to complete their own CPD Plan and Record. Lawyers providing regulated services are required to complete 10 hours of related CPD activities each year.

The first full CPD year began on 1 April 2014, with a transitional period from 1 October 2013.

The CPD initiative is learner centred rather than prescriptive. This means lawyers will be responsible

for identifying and fulfilling their own CPD requirements in accordance with recognised adult education principles.

Lawyers are required to prepare and maintain an ongoing CPD plan. Lawyers providing regulated services must complete 10 hours of CPD activities each year related to their identified learning needs, and reflect on and evaluate what they have achieved through those activities.

The NZBA has been working with Storkk, a technology company, which has produced an online way of finding available CPD events, creating a personal CPD plan, helping to choose from a range of training activities, easily recording CPD attendance and monitoring training completion and producing reports easily. This will enable easy compliance with the Lawyers and Conveyancers Act (Lawyers: Ongoing Legal Education – Continuing Professional Development) Rules 2013. NZBA members are entitled to a month long free trial of the online product and to use the service at a significantly discounted price of $45 per annum.

NZBA has also been working on creating its own free online tracking tool which it will make available to all members. More information will be available shortly.

Submissions Our Law Reform Committee had a busy start to the year.

The Judicature Modernisation Bill was introduced into the House late last year. A team comprising committee chair Clive Elliott QC, Gillian Coumbe QC, Suzanne Robertson, Philip Rzepecky, Peter Twist, Matthew Smith, Dr Matthew Palmer, John Land, Warren Pyke, Tim Castle, Jane Hunter and Desley Horton worked on a submission, which after review by NZBA President Stephen Mills QC, was submitted to the Justice and Electoral Select Committee in late February. NZBA Wellington Vice President Tim Castle attended the Select Committee hearing in March. Topics which the submission addressed include civil jury trials, Associate Judges, leave to appeal, judicial appointments, vexatious proceedings, private criminal prosecutions, recusal, judicial information and court records, District Court jurisdiction, judicial review, interest on money claims, electronic courts, electronic identity and calculating time.

A copy of the full submission is available on the NZBA website. Our thanks to all those involved for their hard work.

Melissa Perkin

From the Chief High Court Judge Complement Four new judges have been sworn in so far in 2014: • •

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Thomas J on 31 January; Associate Judge Smith on 3 February; Dunningham J on 7 February; and Moore J on 21 March.

The judges will sit in Auckland, Wellington, Christchurch and Auckland respectively. Late last year Justice Faire was sworn in and continues to sit in Auckland.

Justice Rodney Hansen retired earlier this year.

Justice Winkelmann

Practice and procedure Openings in te reo are occurring in the home courts in Auckland, Wellington and Christchurch. It is expected openings in te reo will occur in the circuit courts by the end of March.

A qualitative survey of practitioners about the effect of the changed High Court Rules on discovery and case management is to begin by the end of the month. The survey is part of a wider review of these aspects of the Rules being carried out by the Ministry of Justice on behalf of the Rules Committee. Practitioners in the High Court civil jurisdiction are encouraged to respond to the survey which will be advertised in legal publications.

The new Sentencing Practice Note for the High and District Courts came into effect on 3 February 2014.

It gives effect to changesarising from the Criminal Procedure Act and other legislation. It can be found at http://www.courtsofnz.govt.nz/business/practicedirections/?searchterm=sentencing%20practice%20note In October, the court published on the Courts of New

Zealand website material designed to assist the media with identifying whether material before a court is suppressed.

A list of commonly used statutory provisions that prohibit publication can be found at http://www.courtsofnz.govt.nz/ business/media-centre (Quick Links).

The court’s judgment timeliness expectations and inquiry process is on Courts of New Zealand at http://www. courtsofnz.govt.nz/from/decisions/high-court-judgmentdelivery-expectations-inquiry-process-and-recent-judgmenttimeliness. The figures for 2013 will be released shortly once they are finalised by the Ministry of Justice.

Annual review and workload summary In the next month or so, the Annual Review for the High Court for 2013 will be published on Courts of New Zealand website.

In the civil jurisdiction, year end figures for 2013 show the continuation of a high proportion of civil cases heard by trial.

That proportion is 9%. Moreover the median and average times to trial continue to drop. The average age of general proceedings heard by trial has dropped 75 days from 581 days to 506 days and the median age of general proceedings heard by trial has dropped by 51 days from 468 days to 417 over the last year. This is a very good result.

In the criminal sphere, a direct comparison of cases on hand is more difficult with the commencement of the Criminal Procedure Act 2011 in July. Cases on hand are at similar levels to the end of 2012 although there is a noticeable drop in cases previously called “middle-band” and now called “protocol” cases coming to the High Court for a decision on court of trial.

These cases can be heard in either the District Court or High Court. Historically around 40% of the High Court’s criminal work is made up of middle-band/protocol cases and no change was expected following the commencement of the Criminal Procedure Act. The Chief Judge of the District Court and I are investigating this unexpected drop with the Ministry of Justice and the crown solicitors network.

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NZBA Member Benefit Update NZBA has been working on expanding and improving the member benefits we are able to offer. Some key benefits for members are identified below.

A full list of member benefits offered is available on the NZBA website (www.nzbar.org.nz) and in the printed brochure you receive with your membership subscription renewal invoice.

Insurance Marsh Our partnership with Marsh enables members to be offered a very competitively priced range of insurance solutions including: • A Liability Plan that encompasses indemnity for professional risks, costs of representation during a complaint to the NZLS, trustees liability and outside directorships, statutory and public liability and more.

• Combined Material Damage and Business Interruption Insurance policy tailored for barristers’ chambers, with cover for assets and consequential loss risks such as rewriting records, increased costs of working following an event causing damage to chambers, with specific cover for law libraries, wigs and gowns and extended cover for documents in transit.

• Motor Vehicle insurance policy in conjunction with Lumley General, which gives members surety of cover under a commercial motor vehicle cover with premium rates which represent the buying power of the NZBA. Library Products LexisNexis – National Barrister Deal NZBA has partnered with LexisNexis to bring their extensive range of New Zealand as well as their Internationally recognised research and reference content to full members of the NZBA at a significantly reduced rate.

Within the new eLibrary package are key titles from across the extensive LexisNexis online range including CaseBase Case Citator, Practical Guidance, Laws of New Zealand, Practitioner Books Online and many more. International content will include, but not limited to, the All England Bundle, Halsbury’s Laws Bundle (England, Australia and Canada), Kelly and Ball Principles of Insurance, Ford’s Principles of Corporations Law plus over 40 other titles.

Additionally, members who sign up for the package will be eligible for preferential rates on LexisNexis hardcopy titles as well as other solutions and services. This opportunity is based on the NZBA full members’ collective buying power and initiated on a minimum number of full members registering their interest.

Please register your interest no later than 30th April 2014, via the NZBA website or by contacting Matt Pedersen from LexisNexis at matthew.pedersen@lexisnexis.co.nz or 09 368-9515.

You can find out more about this offer, including the terms

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and conditions, on the members area of www.nzbar.org.nz.

Office Products Office Max - Office Supplies, Furniture & Technology Products NZBA members can access discounts of up to 50% off OfficeMax’s prices on over 20,000 items. In addition to office supplies, OfficeMax also supply a wide range of technology including Apple iPads, office furniture and ergonomic products, coffee, tea and lunchroom supplies, cleaning and hygiene products. To take advantage of the offer, email OfficeMax at: nzbar@officemax.co.nz.

CORPORATE RATES We have been able to negotiate corporate rates for members on a variety of services including: ANZ Bank – offers discounts on residential interest rates and account fees along with special term investment rates for amounts over $10,000. For junior barristers ANZ offers the ANZ Start-Up Package.

Cliftons – Meeting Rooms and Video Conferencing Services - neutral and secure rooms for mediation and arbitration sessions. NZBA members receive a 15% discount.

Filecorp Filing Systems - record and information management solutions – corporate rates for NZBA members.

Glengarry Wines and Spirits – NZBA members can receive a Glengarry Card offering significant discounts on wine, beer, spirits and beverages.

JB Hi Fi – commercial pricing for more than 2000 products online.

Rental Cars – corporate rates with Avis and Budget Rental Cars.

Air New Zealand – Koru Club membership at corporate rates.

Heritage Hotels – corporate rates at their 20 properties around the country (from large hotels to boutique properties).

Les Mills Gyms – Corporate Flex Option for NZBA members.

OPSM – 20% discount on selected frames, lenses, sunglasses, contact lenses and accessories.

Filecorp – record and information management solutions – corporate rates for NZBA members.

CPD Tracking Software – Storkk – 30% discount to access software to manage, track and record your CPD plus a one month free trial.

Full information on how to access all member benefits, including corporate rates, is available in the Member Benefits brochure and on the NZBA website (members area).

The New eLibrary Package

Enjoy the convenience of fulfilling all your research and reference needs from one trusted provider and at dramatic savings.

Exclusive to NZBA full members, LexisNexis and the NZBA have partnered to offer the new eLibrary package consisting of NZ online content and an extensive number Additionally, you will receive preferential rates for hardcopy and other LexisNexis solutions and services.

To take advantage of this, register your interest before 30 April by contacting matthew.pedersen@lexisnexis.co.nz or phoning 09 368-9515. and conditions, on the members page of www.nzbar.org.nz.

Terms and Conditions: Package is subject to a minimum number of members* registering their interest by 30 April 2014. *Only available to those members of NZBA who have a ‘full membe

andard terms and conditions of use.

Š 2014 Reed International Books Australia Pty Ltd trading as LexisNexis. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc. License ABN 70 001 002 357.

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Not What Company Directors Bargained For

By Philip Rzepecky* The insurance policies upon which professionals in many areas of business rely almost always have a twofold purpose – to pay legal defence costs against third parties making claims, and where these claims are settled before trial or are the subject of an adverse decision, to pay the claim This is the normal position over professional indemnity policies, directors and officer’s liability policies and in many case statutory liability policies in respect of defence and reparation costs.

Under s 9 of the Law Reform Act 1936, a charge is created to protect the financial interests of potential third party claimants against the indemnity fund provided by insurance policies, including directors and officer’s liability policies. Parliament has always considered this type of protection necessary, especially where there is a risk of corporate or personal insolvency on the part of the targeted professional. Consistently with this s 9(4) also gives a claimant the right to proceed directly against the insurer. In that event the insurer has the same defence rights as the insured.

For many years some policies issued by underwriters have provided both legal defence and indemnity cover subject to one insurance fund. This is common in D&O liability policies. This means that there is always the potential for the insurance fund under the policy to be depleted by the insured’s claim for legal defence costs – where ultimately the defence is not totally successful.

The right of underwriters and their insured professionals to use the insurance monies in this way was challenged by the receivers of the Bridgecorp companies in the High Court, where they sought a declaratory judgment in respect of the application of s 9 to the D&O policies of the former directors who were being sued.

The High Court decided that s 9 created a charge at the time that the events giving rise to the claim occurred and therefore the insureds were not entitled to receive payment towards defence costs from this fund. This was subsequently overturned by a unanimous decision of the Court of Appeal, which held that the charge only applied when liability was ultimately decided. Therefore the directors were entitled to have their defence costs paid out of the fund. In the meantime the shareholders of Feltex had started similar proceedings, which were transferred directly to the Court of Appeal to be heard together with the Steigrad case, and were subject to the same decision.

On 23 December 2013, the Supreme Court issued its decision in BFSL v Steigrad [2013] NZSC 156 (“Steigrad”) where it held by a majority of three to two that the amounts insured under the respective policies were immediately

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subject of a charge created by s 9, and which prevented the payment of legal defence costs out of the fund.

The Bridgecorp appeal arose as a result of the collapse of the Bridgecorp group of companies in 2007, after which investors were owed around $500 million. The Bridgecorp directors were insured under two policies with QBE insurance – a D&O policy with a limit of $20 million, and a statutory liability policy with a policy limit of $2 million. The directors faced claims for both civil and criminal liability. Once they had exhausted the statutory liability policy they claimed under the D&O policy. The receivers and liquidators of Bridgecorp placed QBE on notice that they considered that the entire insurance fund under the D&O policy was subject to a statutory charge under s 9. They commenced proceedings in the High Court seeking a declaration to that effect, which was opposed by Mr Steigrad, a former director. QBE took no part in the proceedings, resolving to abide the outcome.

In the meantime (not surprisingly) it refused to make any defence payments to the directors.

The other appeal was brought by Mr Houghton, who was the plaintiff in a representative action brought by some 3,700 shareholders in Feltex who claimed $180 million against the former directors of that company. The D&O insurer was Chartis, which provided $50 million of cover.

The majority comprised Chief Justice Elias, Justice Glazebrook, who together wrote the substantive decision, and Justice Anderson. They decided that the statutory charge under s 9(1) effectively arose at the time of the happening of the event giving rise to the claim. This charge secured the full amount of the sum potentially payable under the policy if the directors were ultimately found liable. In reaching this decision, the majority relied upon the words in s 9(1) which provides that the charge will arise on “…the happening of the event giving rise to the claim for damages or compensation…” regardless of whether liability had been determined.

On that basis they distinguished between the cover provided for defence costs and liability, finding that only the later component was subject to the charge.

Furthermore as the defence costs could only have become payable after the happening of the event referred to in s 9(1), the insurance monies would already be subject to the statutory charge and therefore not available to the underwriter and the insured – despite the terms of their agreement under the policy. As a result the underwriters were not free to pay out the defence costs to the insured directors.

To a large extent this outcome appears to have been driven by the Judges’ perception of the potential unfairness to claimants who might be disadvantaged if the costs of the director’s defence seriously depleted the fund available to pay successful claims, as highlighted in Justice Anderson’s brief judgment.

In reaching this decision the majority rejected the arguments on behalf of all respondents, including the proposition that the imposition of the statutory charge from the outset would interfere with the bargain between the underwriter and insured director. In particular, the respondents had argued that the third party claimant was not entitled to be placed in a better position than the insured – whose liability cover would be reduced as defence costs came out. The majority considered that this argument did not take any account of what they considered to be a bad bargain entered into between the underwriters and directors, which failed to consider the proper application of s 9(1).

This outcome potentially places underwriters in a dilemma, especially where the insurance fund is eclipsed by the level of the potential claim – as in these cases. In that event underwriters who have financed the director’s defence may find that they still have to pay out the entire fund if there is an adverse decision.

However if the directors do not have the financial means to pay for their own defence then the underwriter will be driven to pay the costs in order to defend the fund.

Directors may also consider enforcing the bargain that they entered into with insurers to provide defence cover – regardless of the application of s 9.

The dissenting judgment was delivered by Justices McGrath and Gault. They considered that it was necessary to approach the interpretation of s 9(1) purposively in the light of its historical background. They identified three relationships affected by s. 9 as follows: • The third party and the insured – regulated by the substantive law applicable to the allegations made by the claimant; • The insured director and the insurer – governed by the terms of the insurance contract – which in this case provided indemnity and defence cover; • Between the claimants and the insurer – established and governed by the application of s 9.

The minority considered that these relationships were important in the following respect: “The extent to which the statutory charge overrides provisions to pay defence costs is a question about the degree to which the relationship between the claimant and the insurer modifies the contractual relationship of insurer and insured.” [150] They held that s 9 did not prevent the insurer from

making payments necessary to meet the contractual obligations to the insured under the policy. The reason for this was that s 9(1) did not restrict the normal operation of the policy, as it could not interfere with the contractual relationship between the insured and the underwriter. That was never Parliament’s intention when enacting s 9. This meant that money which would otherwise be payable to the insured directors for their defence should be paid under the policy, and the charge would apply to whatever was left over under the directors liability cover.

They disagreed with the majority that the words in s 9(1) referring to money which “...is or may become payable…” applied to the entire insurance fund at the time that the charge arises (i.e. on the happening of the event). Instead they highlighted the effect of the words “…in respect of that liability” which limited the fund to be subject to a charge to the amounts ultimately payable to the claimant – which could only be determined once liability to pay damage or compensation was established. This referred directly to the insurer’s obligation to indemnify the insured for liability to third parties. But did not refer to the amounts payable to fulfil the underwriter’s duty to defend the director.

As a result the charge under s 9 could never put the claimant in a position which completely ignored the contractual agreement between the underwriter and the insured. To do so would effectively provide the claimant with better insurance cover than the insured director had bargained for. So the claimant would take a charge subject to payment to the directors of their defence costs - the normal operation of the policy.

This decision may cause directors or other professionals with these types of policies some anxiety, as the extent to which they are able to rely on the policy for defence cover is now uncertain. The majority left this issue open, so there may be further consideration by the High Court. If insured’s now seek separate defence cover from underwriters, then this may incur an increase in premiums. No doubt underwriters, insurance brokers and their mutual clients will be carefully reviewing policy wordings on renewal in the light of this decision.

In reaching this decision the majority expressly rejected the contrary decision of the NSW Court of Appeal in Gubb Insurance Co of Australia v Moore, in respect of similar legislation, which is now on its way to the High Court. Following Steigrad the law is now significantly different between Australia and New Zealand, which may also cause some inconvenience, as many companies trade on both sides of the Tasman.

The minority in Steigrad was critical of the archaic drafting of s 9, and its unhelpful structure. It may be time for governments in Australia and New Zealand to review the legislation, and reach a common position.

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Privileged to have practised – Hon. Justice Simon Moore

By Jacqui Thompson* New Zealand Bar Association Council member, former Auckland Crown Solicitor and newly appointed judge, the Hon. Justice Simon Moore, reflects on his career to date as he moves to take up his appointment to the High Court Bench.

Stepping from a typically modern office hallway into Simon Moore QC’s office at Meredith Connell was a bit like taking a step into another time – albeit one with laptops and iPhones. The newly appointed High Court Judge doesn’t like Hon. Justice Simon Moore modularised, plastic work stations and it shows. His office, while firmly based in the present, acknowledges with respect those who went before him.

The furniture is heavy aged wood, and there are reminders of earlier times and people scattered around the walls. On the wall next to his desk is a picture gallery, detailing his family life and his 34 year career, during which he was involved in many of the most famous murder trials in Auckland’s recent history. The old wooden desk that he has used for the last few years was originally sat at by Sir Vincent Meredith QC, who was the founding principal of Meredith Connell and in 1922 became the firm’s first Crown Solicitor for Auckland. Some 92 years later, Sir Vincent’s desk is headed into storage as Auckland’s fifth Crown solicitor follows two of his predecessors – the late Sir Graham Speight and the late Hon. David Morris – to the Bench.

The beginning Justice Moore admits that a career in law was not his first choice when he arrived at Selwyn College in Dunedin to begin University. An overly enjoyable first year led to some fairly average grades that effectively ruled out his real passion and first choice - medicine. The Judge’s family back ground was almost exclusively medical. Both his grandfathers had post-graduate degrees in medicine from Aberdeen and Edinburgh Universities. His uncles were doctors. Two of

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his brothers are doctors. His father, Sir Patrick Eisdell Moore, was knighted for services to medicine. From age five, the Judge wanted to follow in his father’s footsteps and become an ENT surgeon.

After his disappointment at not making the grades for medical school, the Judge settled down and studied anthropology. He found learning about New Zealand’s prehistory fascinating. Moving on to law was not something he had thought of. His only family connection with it was a great-uncle who had been a rising star in New Zealand legal circles before being killed in 1916 at the Battle of the Somme (he was awarded the Military Cross shortly before he died). However, at the time the Young Simon began thinking about what he might do, his brother Chris (now President of the New Zealand Law Society) was studying law and was enjoying it, and His Honour decided to give it a try.

Having entered Law School, Justice Moore thoroughly enjoyed it. Again, there was no immediate connection at that time with the subject which was to become his principal practice area. He does however recall sitting in back of a criminal law class when they turned to subject of homicide. The lecturer, Ian Muir said “Well, just looking at you there may be one or two who will have some dealings with homicide, but most of you won’t and this is really a waste of time but we have to teach it”.

At this point the Judge gestures at the photos on his wall and comments that they show just a small portion of his dealings with homicide. But as he can’t call to mind anyone else in his class who went on to have such “dealings”, he is forced to laughingly admit that Muir was right.

He describes himself as a student as being “as middle of the road as they come – pretty average. Certainly was no star”. But in 1980, when he was finishing professionals, getting a job in a law firm was as difficult as it is now. He managed to secure an interview at Meredith Connell, where he was interviewed by David Morris and Stuart Grieve QC, who were then partners at

the firm. It obviously went well as he was offered the job at the interview.

The Judge was Meredith Connell’s first law clerk. He worked initially with partners, Rodger Haines QC and Mike Ruffin. The other partners at that time were Barrie Connell, David Foster, Morris, and Grieve. Mostly his workload was concentrated on criminal law but there was quite a lot of judicial review that he would help out with. He was primarily doing departmental prosecutions such as those for customs, fisheries and memorably the Post Office, prosecuting the hardened offenders who cheated on their TV licences. However the great advantage to doing this work was the amount of time he spent in court. He estimates that in first two years at the firm, he got a decade’s worth of experience.

not treating them as human beings, and believing that every word that has been uttered by counsel has been absorbed and understood.

Counsel’s duty as an advocate is to make sure that their messages are effectively communicated and understood. Paul Temm QC (as he then was) once said to Justice Moore; “Watch the pen”. This was, he says, great advice. If you are going too fast, the judge won’t get it down – and nowadays with judges tapping on keyboards, it is the same thing. “While the judge has his or her head down,” he says, “shut up while they are tapping. You know your argument is recorded. It is Advocacy 101 but it is so often forgotten.”

Influences When asked if he has a legal “hero” such as Oliver Wendell Holmes, the Judge smiles. Rather than a historic figure in the law, his heroes are contemporary.

He describes them as “inspirational mentors” who taught him a great deal. At the top of that list would be David Morris, for whom the Judge juniored in dozens of trials. Likewise he again mentions those he worked for and with, such as Haines, Ruffin, Paul Davison QC and Grieve.

And then there were the judicial mentors. Probably his biggest influence was the late Sir Graham Speight. He describes Sir Graham as having a prodigious intellect coupled with a wonderfully understated, human and pragmatic approach to judging. He was a selfeffacing, funny man who was always very supportive of counsel. There were several other judges who the Judge could name who were, or are, like this, but he declined to start on this exercise, for fear that he would accidentally miss some names off the list.

High Court practice in the 1980’s was more formal than it is now and it taught Justice Moore a great deal about procedure and how to manage a complex proceeding.

In Court, sometimes judges would hand you cues about the way you were conducting a case that you ignored at your own expense. These were valuable learning experiences for young advocates in trial technique. Back then, you relied on judges for learning these things, as they very much taught you advocacy.

Being an advocate His Honour emphasises the need for advocates to learn from judges – to pay attention to how a tribunal is receiving their case. One of the most fundamental errors that an advocate can make is to fail to watch, understand and engage with their tribunal, whether it is a judge sitting on their own or whether it is a jury. He highlights the three cardinal sins of talking “at” them,

All advocates will experience trial and error throughout their whole career. “I can’t think,” the Judge notes, “of a single trial that I conducted at any stage in my career when I looked back and didn’t think genuinely, ‘I could have done that bit better; or I mucked up that bit’. I can never think back to a trial where I thought ‘God, that was good’ – never. You are always learning and you learn right to the very end”.

Thinking about how our present day approach to legal analysis differs from earlier times, the Judge says that the ability to search vast databases means that there is a greater temptation to develop permutations on various well settled principles and to spend too long on this. In criminal law, the principles are all pretty well settled. The most effective advocate states “that is the principle” and then moves on to apply it to the facts. As an advocate, the Judge himself always tried to reduce the proposition to its barest essentials. He asked himself what the law said was the operative test. We don’t need, he says, to go to lots of places to establish the principle.

Facts are the essential ingredient; “Counsel’s success to the extent that counsel is influential in the result - is so often linked to their knowledge of the facts. If you know your case inside out and back to front, the law follows.”

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There isn’t a minute spent examining the facts that is wasted, but there is a lot of time spent examining the law which is. Success is dependent on an encyclopaedic knowledge of the case.

Confidence, Women in the law and mentoring Although he was brought up to believe that you can do anything, the Judge tempers that approach with realism.

He wryly reflects that his father was not quite right on his son’s future career in medicine. The Judge is not a fan of over-confidence, commenting that he probably gets that from his Scottish ancestry. He obviously puts great stock in doing the hard work in order to achieve what you want. While people do eventually find their niche, he says, it is not wise for them to first go around talking themselves up.

It is, he says, the humble people who will be remembered. He identifies as an example of this the judge who he is in effect replacing, the retiring Hon. Justice Rodney Hansen. Justice Hansen, he says, will be remembered as being a courteous, genuinely humble and extraordinarily able judge who has never gone around beating his own drum and boasting of what he could do.

The programme is run by partner Natalie Walker and has been very effective, with great feedback. It allows solicitors to seek advice that they might feel they could never seek from senior partners, where the concern is to appear proactive and front-footed. They are very selective about who should be mentors. The firm also runs a formalised junior programme to ensure that the opportunities to junior more senior prosecutors is spread across the firm.

While the firm now encourages staff to go into court and watch seniors at work, this was in contrast to the days when the Judge would sneak into court to watch David Morris. If he was spotted, Morris would turn to him afterwards and ask him what he had been doing there, and whether there was no work back at the office?

Nonetheless, it is obvious that their relationship was built on a solid foundation of respect and hard work and the Judge comments that they were a very close combination. He mentions how funny Morris could be, and with a wicked Scottish accent the Judge proceeds to act out some of the more unintentionally hilarious times in court. He particularly remembers the banter that went on between Morris and Mike Bungay QC, commenting on how much fun it was. They were, he says, such big, big figures who just ran the courts back then.

Justice Hansen … will be remembered as being a courteous, genuinely humble and extraordinarily able judge who has never gone around beating his Changes over the last few years own drum

Conversely, Justice Moore points out that with some of the most able lawyers, partners in firms have to work really hard to get them to believe in themselves enough step up to lead. This is particularly true in respect of women litigators. There are many women who are ready and completely competent to take the lead but it can often be a real struggle to get them to the point where they accept that themselves.

Once they have done it, they are outstanding and their self-doubt at this point helps them to critically analyse their performance. In general, in his experience, women litigators are more self-critical, whereas most men are usually clamouring to take on the extra responsibility whether or not they are ready to do so. The Judge is unsurprised to learn that his comments in this regard echo comments made recently at a seminar by a partner in another leading law firm.

This naturally leads to a subject for which the Judge has considerable enthusiasm; mentoring. His own firm has been running a formal mentoring programme over the last four to five years where those who join the firm are assigned a mentor. This is a person who they can take all kinds of problems to – not just work related but if they choose, personal as well. They can still get advice and support from others, but it does formalise this relationship within the firm.

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and the future The most striking change in his time in the law, particularly in the criminal jurisdiction, is the increasing complexity of trials and cases. When the Judge started prosecuting cases, the average length of a trial was 1-2 days. A recent analysis conducted by his office revealed that this has since grown into almost two solid weeks of hearing times.

This change is not, the Judge believes, solely attributable to the changed jurisdiction of the High Court to dealing with more serious crime. It results in part from the growing sophistication of police investigative techniques and technology, which allow evidence to be presented that in the past could never have been gathered. DNA evidence alone can now occupy up to a week in the witness box.

Another example would be intercepted messages where a jury might spend weeks listening to telephone calls or conversations. And interpreters have also increased hearing time, particularly since the Supreme Court ruling in Abdula v R. This has increased some trials by up to 60%. The Judge also points to a range of new Acts introduced since the mid2000s which have increased the complexity. We should not,

he says, be surprised by the longer hearing times.

Having said that, His Honour believes that we are definitely leading the world in a variety of innovations involving case management and our approach to evidence. This has to some degree helped with the problem of growing trial lengths, but it is then offset by the increased complexity and the availability, as a result of better investigative technologies, of more evidence which has to be led.

and from the young lawyers entering his firm, he has been very impressed by a very high level of altruism among young lawyers. One of the challenges that face the firms and legal employers today is how to encourage and nourish that altruism. He regards this as key to retaining the best legal talent within the legal profession.

We need, he says, to cater not just for their professional needs but their emotional needs.

[L]awyers are taught to Family – his primary influence The Judge credits his family as being Asked about recent remarks from the think in a particular way the primary influence in keeping Lord Chief Justice of England and grounded. His 32 year marriage and the methodology him Wales, Lord Thomas, on the use of to Jane and his three sons have an inquisitorial in some areas of law critical to his ability to remain of legal thinking allows been to improve the conduct of family and emotionally healthy when faced with civil cases where litigants are selfthe demands of both being a partner lawyers to provide represented, the Judge notes that he and in dealing with cases involving can only comment in a limited way of the worst acts people can assistance and make a some and not as advocating any particular commit against others. Jane, he approach. But as a general premise he is not just supportive, but contribution to all kinds of says, would say that we always need to think objectively so, being both pragmatic about alternative ways to administer other community bodies. and sensible. And that support, the and dispense justice.

A privilege to be a lawyer The law, the Judge says, has been extraordinarily good to him, and he could never have expected as a student that he would have enjoyed it as much as he has.

Studying and practising law is the best thing he has ever done. He continues to enjoy and be fulfilled every day of his work life. It is a privilege to be a lawyer on a number of levels. First, not everyone has the opportunity to go to university. Secondly, lawyers are in a special position by virtue of the oath that they take on admission, which gives them privileges such as a right of audience in a Higher Court, or advising a client on a trust or providing advice in a corporate setting.

Thirdly, lawyers are taught to think in a particular way and the methodology of legal thinking allows lawyers to provide assistance and make a contribution to all kinds of other community bodies such as school boards, sporting organisations and charities. The Judge regards himself as very lucky to have been able to make a contribution in a number of areas such being appointed as general counsel to the Eden Park Redevelopment Board in 2008 in anticipation of the Rugby World Cup. In addition to his many involvements, the Judge chairs the Board of Governors of King’s School. He was appointed to Selwyn College as a trustee and a Fellow of the College three or four years ago. His Honour is particularly proud to be the patron of Wing 280 of the Royal New Zealand Police College. In his address to the 2013 graduation of recruits, he reminded them that like lawyers, they took an oath, which was to serve without favour or affection.

Two of the Judge’s three sons are lawyers. From them

Judge stressed, is offered while she pursues her own busy life and activities. Both of them are people oriented with a busy social life and a wide range of interests outside the law. He suspects that this has also helped him to remain grounded.

In the domestic setting he gets away with nothing. It is his reality check. His sons give him absolutely no quarter. He walks through the door in the evening and they might greet him with a “Hey [less-thancomplimentary-name]. How’s the day gone?” His Honour looks horrified (before breaking into laughter) when it is suggested that from now on they will have to refer him as “the Hon. [less-than-complimentary-name]”.

He says he might not mention that to them.

They didn’t hear it from us.

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Valedictory Speech

By Hon. Justice Priestley

government and the independent arm at that.

For many here today this courtroom was the scene of significant events during their legal careers; admissions as barristers and solicitors; admissions to the Inner Bar when taking Silk; and being sworn in as a Judge. All three for me.

In 1968, in the presence of my late parents, I became a barrister and solicitor, my admission being moved by Howard Keyte QC. In 1973 I appeared as one of six or seven counsel for an accused in a rather nasty gang rape trial. You, Mr Grieve, were the prosecutor. Sir Duncan McMullin, who is here this afternoon, was the presiding Judge. We ran out of jurors and the Judge had to invoke the now abolished procedure of praying a tales. My client had the unfortunate name, for an alleged rapist, of Jakey Dick! He was convicted.

This was also the place where I became Queen’s Counsel. I sat at the Inner Bar for the next six years beside the late John Haigh QC, whom we all sorely miss.

And it was here I was sworn in as a Judge 13 years ago.

First of all, thank you, all of you, for attending this afternoon’s sitting. I am humbled, both by the size of the turn out, and by the words of the four speakers we have just heard.

I want to acknowledge this place in which we are all seated. For all members of the Auckland Bar this Number One Courtroom is a place of special significance.

It is, in terms of New Zealand structures, old, 145 years old.

It has been the venue of many notable trials; a cockpit for large numbers of able counsel whose names thread through our legal history; above the bench are not the New Zealand Coat of Arms but the Royal Coat of Arms, which are not just a 19th century historical relic but signify what very few New Zealanders now understand — that the judiciary is one of the three arms of the Crown’s

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This is not the time for war stories or a totally subjective appraisal by a Judge of his highlights. Having acknowledged this place, I briefly acknowledge some of the people present this afternoon. There is no significance over the order. I first acknowledge Sir Noel Anderson. Sir Noel and I were members of the same intake into the University of Auckland Law School in 1962.

Noel quickly made his mark during a legal history lecture, when, in answer to a question from the lecturer Bernard Brown if anyone knew what a wappentake was (a unit of Anglo-Saxon government) he put up his hand and announced “robbery with violence Sir”.

Justice Anderson, as the Auckland List Judge when I was appointed, made a passing remark to me. One of the many functions of a Judge, he said, was to help parties get to a solution which they had found too difficult. That sage comment I have sometimes used and

shared with counsel during the course of trials when parties were sailing past each other.

I particularly acknowledge the Chief District Court Judge, Judge Doogue, and the Principal Family Court Judge, Judge Ryan. The three of us go back a long way. It was I, Judge Doogue, who recruited you as what was then called a law clerk when I was a partner at Holmden Horrocks & Co. We have been firm friends ever since.

Judge Ryan, you and I shared a passion for family law.

I recall, in the wake of the tragic death of your partner, Brian Shenkin, we discussed merging our respective partnerships. I personally am delighted that a Judge of your wisdom and background has become Principal Family Court Judge.

I acknowledge my former Judge’s clerks, many of whom I can see here. Dr Heather McKenzie, whose psychological health was sorely tested by having to cope, during the same year, with both me and Sir David Baragwanath, has travelled here from Christchurch. I have been well served by all my clerks. I appreciated the dialogue; their suggestions; their helpful comments and their input with many judgments (particularly those few where the Supreme Court has restored me when the Court of Appeal wrongly tipped me over).

I thank too, my long-suffering Associate of the last 9 years, Mrs Karen O’Connor, who has been hard working, diligent, and above all humorous. Karen is one of a dying breed, but still alive and kicking, who has worked in the Court system for many years, can take shorthand, and is familiar with Court structures. She is discreet and loyal. We have made a good team.

I also acknowledge and thank the many members of the High Court Registry staff who are here; the managers; case officers; court-takers, and court-criers. I have enjoyed working with all of you. Your working conditions have become more arduous over the years. This and other “new” court buildings have not provided for the future or for predictable expansion. As a result, more people are shoe-horned into the same space – both Judges and court staff. You have all worked in sometimes stressful conditions and handled increasing workloads. Thank you for your efforts. I also thank the Judges’ Scheduler, Ms Corrina MacDonald, who has particularly helped me in streaming workloads and

allocating judgment time.

I pay brief but heartfelt tribute to my wife of 42 years, Anne. The law has been good to me but you, Anne, have been better! Our home and family life have always been my oasis. Thank you for your love and support. Our adult children in recent years shied away from inquiries about what their parents did. The combination of an Anglican Priest and a High Court Judge seemed just too much. However, it has worked for us.

I think it best to resist the temptation to dwell on the speeches of Messrs Simon and Christopher Moore, Mr Mills and Mr Jefferson. But thank you. Listening to you was perhaps akin to a preview of eulogies at my funeral.

History tells us that Roman generals who had spectacular victories were, when they returned to Rome, accorded a Triumph. The general would ride through the streets in a chariot preceded by captured slaves, hostage chiefs, and booty. But standing on the chariot behind him would be a slave, whispering in his ear momento mori, — remember you will die. Were I to have been accorded a Triumph in Rome, I could think of no better slave than you, Mr Jefferson, to remind me of my mortality. My only reservation would be that you would utter those words with a sardonic grin on your face.

I also acknowledge the presence in court today of Mr Frank Godinet, the President of the Auckland District Law Society Inc. Having both Mr Godinet and Mr Christopher Moore, the President of the New Zealand Law Society, listening to me is too good an opportunity to miss!

I have always believed the profession in Auckland is a huge reservoir of ability and energy. What we have today, however, is quite simply a dilution and duplication of effort and talent. My hope was that, when Anna Fitzgibbon was ADLS President and Christine Grice NZLS President, a solution would be reached. But it was not to be.

We all know the issues: the ADLS building, acquired decades ago for the perpetual benefit of the profession in Auckland; whether to cater for the interests of small firms and sole practitioners as opposed to large firms; and how best to supply continuing legal education requirements profitably.

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The Auckland Society is today a very different animal in membership and leadership than was the case in the 1970s and 1980s. The New Zealand Society has a number of new and sometimes irksome statutory responsibilities. But the profession, in my view, would be immeasurably strengthened if both societies were able to meld and work as one.

If the two societies want a committed mediator to achieve the goals of unity and combined strength then, for what it is worth, I would offer myself. My only fee would be free invitations for life to all your social functions! But I have mentioned the two Societies for a serious reason. These are difficult times for the profession and the courts. The profession has constitutional and ethical functions. It needs to be united and strong.

Which leads me to my other topic: the constant tension which surrounds the judicial arm of government. This audience understands why and how it is that an independent judiciary underpins individual rights and freedoms and maintains the rule of law in a democratic state. Westminster style democracies have benefitted from this constitutional arrangement since 1688.

[Grab your reader’s attention with a great quote from the document or use this space to emphasize a key point. To place this text box anywhere on the page, just drag it.]

The Bar, Cabinet Ministers, and most Members of Parliament understand and respect the position of the judiciary. But outside those elite groups, knowledge is patchy. The media, in an era of infotainment, seldom helps. Civics has not been taught in schools for decades. Sir Geoffery Palmer recently expostulated on Morning Report that civics should be taught at about Standard V (known to most of us as Year 7). He is right.

But it is not.

Particularly at the interface between the Ministry of Justice, servicing courts, and the Judges sitting in courts, there are tensions. The tensions are exacerbated in tight fiscal times. The Executive may control the purse strings but a contracting purse can result in constitutional damage. The Judiciary survives on public monies and to that extent must be accountable. But constitutionally it cannot be accountable to a Minister. It is certainly not under ministerial control as so many members of the public seem to believe.

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Judicial performance is not a topic for official departmental inquiry, any more than would departmental efficiency be a proper topic for judicial inquiry.

Widespread public ignorance about the function of Courts is made worse by the revolution of the internet.

The global flow of information and comment has huge benefits, particularly for those who live in repressive societies. But that same technology has spawned blogs, and the ability to access ignorant comment indiscriminately.

Older practitioners would have no difficulty in imagining the volcanic reaction of the former Chief Justice, Sir Richard Wild, or Sir Graham Speight were they the subject of the personal attacks and abusive and vituperative comments, which today are commonplace, particularly on sentencings. The same revolution has inevitably led to superficial print media court coverage and the disappearance of dedicated, well-informed court reporters.

Judges are not infallible and on occasions (fortunately rare) might make spectacular errors. The revolution to which I refer cannot be reversed. But a consequence of it is to expose our court system to greater degrees of hostility and criticism than was the case even 10 years ago. There is no easy solution but perhaps the chief Law Officers of the Crown and the Bar, who understand these risks, could enter the lists more frequently. The law of contempt and curbing vexatious litigants need robust application by the Crown.

There has been no sweeping or catastrophic change in my working environment over the 13 years I have sat as a Judge. But there have been numerous small changes.

An overloaded and often creaky computer system; computer and physical security; inadequate media assistance (one dedicated press officer for all Benches which does not compare favourably with the number of press officers serving the other two arms of Government); loss of telephone operators and building maintenance staff; the design and facilities of the new Christchurch court complex; the recent E-Bench experiment in the District Court; central Probates in Wellington. There are others I could mention. One or two might not matter much, but the cumulative effect over a period of years can be significant. The simile of frogs swimming in a water-filled pot on a stove comes to mind. Few are aware of the rising temperature and its danger.

The work of a Judge is hugely demanding. It is important work. It is constitutionally vital work. It is lonely work. If the work environment becomes less attractive or (to use the metaphor of my 2009 Harkness Henry lecture) is chipped away, then recruitment of able Judges to all Benches will become more difficult. If there is a falling away in the calibre of Judges, then New Zealand will ultimately be the loser.

I stress my comments are not designed to be critical of any individuals. Rather they point to systemic trends which span the lives of many governments. Both Bar and Judges need to be more focussed and vocal lest the temperature of the pot in which the frogs are swimming becomes fatally high. This area is where we need a strong and vigilant legal profession.

Thank you for honouring me by your attendance today.

And many thanks, those who have spoken, for your kind words. For almost every day over the 13 years I have served as a Judge I have felt blessed. The diversity of work has fascinated me. I have loved the contact with counsel, witnesses, and juries.

But above all, I have felt privileged to be part of a very ancient process; that of the common law. Three or four times a year, particularly with equity or admiralty cases, counsel cite authorities sometimes over 200 years old.

I have been part of a continuum, developing the law and applying it justly. The common law and the judicial process transcend individual Judges.

Any Judge who hopes for fame, or who considers that his or her decisions are historically important, standing out as a beacon of jurisprudential excellence, in my view has missed the point. It is not the Judge who is important. It is the Judiciary, particularly this High Court with its ancient jurisdictions, both inherent and statutory. Nothing I have done will have much or any significance 20 years hence.

But if my 13 years on the Bench have in some small way helped progress and strengthen the Judiciary and the law, then I am glad of it.

Service has been an important part of my personal ethic for my entire adult life. In the words of that Anzac day refrain: what is service? It is the rent we pay for our room on earth.

That ethic has guided me as a Judge.

I end with the words which I uttered in this courtroom just over 13 years ago at my swearing in. They were written by a man called Micah, in Judah 2,700 years ago: And what does the Lord require of you but to do justice, to love kindness, and to walk humbly with your God. Imperfect mortal as I am, I have tried my best to follow those words. Perhaps by your presence, you have recognised and appreciated it. I find that a great comfort.

Many thanks and, in my capacity as a Judge, goodbye.

Madam Registrar, adjourn the Court.

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“I’d rather have been a judge than a miner” The Hon. Justice Rodney Hansen’s Valedictory sitting 12 March 2014

By Jacqui Thompson

Justice Hansen described his valedictory sitting as the end of a very long journey that both began in and ended in the No. 1 courtroom at the Auckland High Court.

It was also in this courtroom that he appeared before Justice Chilwell in The Hon. Justice Rodney Hansen his first criminal jury trial, which His Honour described as a terrifying experience, made easier by that Judge’s kindly and humane manner. Although he would never have contemplated it as a possibility back then, he would himself take the judicial oath a quarter of a century later. And 14 years after that, as he left the Bench, counsel would in their addresses note his humanity and kindness as key features which he himself had displayed as a Judge.

The Judge said he felt fine about both retirement and the retirement age for judges. He was ready to go and was ready to go when he was told. His Honour remarked, “There is much to be said for a retirement age. Peter Cook put his finger on the difficulty when there isn’t a retirement age in his famous skit “I’d rather have been a judge than a miner”. He explained: Being a miner, as soon as you are too old and tired and sick and stupid to do the job properly, you have to go. Well, the very opposite applies with judges.”

When His Honour was originally appointed to the High Court, there was a cap on the number of High Court Judges. He was therefore appointed as a temporary judge and described getting a letter from his cousin, Don, who said: “I see your appointment is temporary, but at least it’s a foot in the door”. This appointment was very quickly made permanent with effect from 1 January 2000, which made him the first High Court Judge to be appointed in the new millennium.

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Knowledge, complexity and deft handling Prior to going to the independent bar in 1991, Justice Hansen was a partner at Simpson Grierson. Anne Hinton QC, who spoke at the request of the Chief High Court Judge, for the Auckland Women Lawyer’s Association, remembers his contributions to partnership meetings as measured and articulate. Current partner Willie Akel had reminded her that the Judge was able to answer so many queries from so many in the firm that he was known as “Rod the God” – a title she was sure had little appeal to him.

This depth of knowledge was remarked on by all counsel in their addresses. For the New Zealand Bar Association, Julian Miles QC noted that the Judge had joined Shortland Chambers in 1991, taking silk in 1995. Although he accepted appointment to the High Court a mere four years later, in that short period he had established a reputation as a thoughtful and incisive counsel. Those qualities were then recognised on the Bench when the Judge was “[t]ime and again … given major commercial cases involving complex legal, factual and economic issues”. In particular his judgments in a number of significant competition cases helped to clarify and extend the law in relation to monopolies and cartels and remained leading cases.

For the New Zealand Law Society, President Chris Moore noted the Judge’s unfailing ability to identify the real issues in a case quickly and to address these head-on with incisive analysis. The Judge also had a flair for writing, and his judgments had been described as both logical and elegant. Mr Moore observed that His Honour would insert the occasional poetic phrase into his judgments. He recalled the case of Parlane v Waipa Council which involved a prosecution for burning rubbish contrary to a council bylaw. In rejecting a defence that Mr Parlane wished to test the validity of the bylaw, His Honour remarked: “Apparently unable to accept political defeat on the issue, he became blinded himself by the smoke of his private battle.”

Mr Moore recalled that on one occasion when tested by counsel advancing an obscure argument the Judge’s response was that he would endeavour to consider it

“with a brevity appropriate to its importance”. Likewise, Mrs Hinton referred to the Judge being courteous and humorous in court. Rather than berating counsel and pointing out their idiocy, his approach was to smile and make a sideways comment such as “Oh, that probably hasn’t got legs, has it?”

For the Government, Christine Gordon QC described the Judge’s exceptional personal skills, including his humanity, as well as his outstanding technical skills.

These were demonstrated in the way he had presided over criminal trials, an illustration of which was the Taito Field case. This required His Honour to interpret certain statutory provisions for the first time, in relation to the mens rea requirement for “bribery” and “corruptly”.

There was no law in New Zealand on the issue and international jurisprudence was of limited assistance.

The test which the Judge formulated then was later upheld on appeal by both the Court of Appeal and the Supreme Court. Ms Gordon said that this was not an easy trial to manage in other ways. However His Honour handled it with a “lightness of touch, calmness and a wonderful humanity of spirit” which put at ease witnesses who were in many cases both reluctant and vulnerable.

Both Ms Gordon and Mr Miles remarked that the Judge had been assigned some of the most contentious cases, such as the Operation 8 case. Mr Miles said that this case and the Taito Fields case were layered with social, racial and political issues way beyond the purely legal. “Presiding over such trials required fairness, compassion, firmness and a rigid impartiality at every level, all of the characteristics of a great first instance Judge” he said.

Mrs Hinton identified two relationship property cases, one where His Honour had appeared as counsel (Coxhead v Coxhead) and another in which he was the presiding judge (X v X), which were now leading authorities having been upheld an appeal and were often cited. Mrs Hinton noted that in X v X in particular, the claimant wife had lost on every step of a tortuous analysis of the relevant provision. The task on appeal had looked forbidding, but His Honour had been prepared to deal with the case in a way that was clearly consistent with the purpose of the section.

Women in the profession Mrs Hinton also described the Judge as egalitarian by nature and said a colleague had described him as “being a feminist before it was sexy”. He was the convenor of the first Working Party on Women in the

Profession in 1981. It was a measure of the respect in which he was held by his female colleagues that there was no objection to the non-female chairmanship of that committee, as there was a few years later when the second Working Party was headed by a male.

Mrs Hinton observed that 32 years after the first Working Party only four of the 26 Queen’s Counsel appointed in 2013 were women, and she speculated as to whether there might perhaps be an opening there for His Honour…

Changes since appointment Justice Hansen observed that there had been important structural changes, since he was appointed and the foremost of these was the establishment of the Supreme Court. The office of Chief High Court Judge was also established which had proved to have been an important and valuable innovation, assisted by inspired appointments to the office including Justice Randerson and Justice Winkelmann, who both had placed a major emphasis on improving efficiency and timeliness notwithstanding budgeting constraints. The development and refinement of case management systems had been an important part of this process.

The judge remarked that a source of pressure and hidden cost was the significant increase in the number of unrepresented litigants. This is now commonplace and results in increased work for judges and for the entire court system.

The Judge also commented on the effect of technology as a cost cutting measure. The switch to FTR did speed up trials, but there was a cost. When evidence was typed in the courtroom, counsel of necessity were required to be measured and deliberate in their questioning, as were witnesses in their answers. He said that he bemoaned the tendency with FTR for cross-examination to become conversational, a chat rather than an interrogation. He remarked that the speed at which evidence is given with the transcript not appearing until well after, adds significantly to the judge’s workload.

Sentencing The Judge’s associate, Cynthia Koks had described to Ms Gordon how, when sentencing a prisoner, the Judge did so with humanity and would always ensure that he ended with a positive message. His Honour said that sentencing was one of the greatest burdens of judicial office. It did not, however, have to be an altogether negative experience. In the course of sentencing he

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tried to include words of encouragement, if only of the “you’ve reached a cross-roads”, or “it’s time to take stock” genre.

He commented that political sensitivity to public opinion work to impede solutions to some of the most painful dilemmas in sentencing: “We know that many of those we send to prison suffer from serious mental health disorders. The overwhelming majority of them will also have serious addiction issues. It is a depressing duty often to send a plainly unwell offender to prison, knowing that there is little prospect of their receiving the treatment they need.”

However he also noted that there were encouraging signs, such as an announcement that more resources are to be put into treatment in prison. The establishment of the pilot Alcohol and Other Drug Treatment Court in Auckland was, in the Judge’s opinion, a huge step forward and he acknowledged the work of Judge Lisa Tremewan and Judge Emma Aitken in getting the court up and running.

While often prisoners appeared to engage with the Judge when sentenced, Justice Hansen remarked that it usually wasn’t possible to know whether his words made any difference. In one case, however, he knew that they did.

In 2005, he sentenced a man to 12 years for drug offences. Four years later he received a letter telling him that for almost two years after being sentenced the offender had held “anger and resentment” towards the Judge but later had come to realise that there was no-one else to blame but himself. He told the Judge: “Your decision and the kind words you said have not gone unheard. I know your job can’t be easy sometimes but I hope this in some way validates what you do and that we can all change if we want to bad[ly] enough.”

case to a single sheet of paper and build from there.

Secondly, the Judge emphasised the need to never lose sight of the merits: “Judging is not a purely abstract, analytical exercise. It is informed by the judge’s sense of fairness and justice. Keep at the forefront of your mind that judges have “an impulse to practical fairness” to use Lord Goff’s phrase.”

Acknowledgement of contributions Reflecting on his years on the Bench, Justice Hansen said it had been an immense privilege to serve as a judge for the first 14 years of this century and that it was an honour to occupy the office. He said that the work was often demanding and relentless but was endlessly fascinating and stimulating. He acknowledged the role of the court staff on whom judges were hugely reliant. But in particular, His Honour noted the contribution of his Associate, Ms Koks. In the 14 years they worked together, there had never been a harsh word between them.

His Honour acknowledged that the nature of the job and the workload placed pressure on both the judge and the judge’s family. He expressed his gratitude to his wife, Penelope Hansen QSM, for her love and support throughout his legal career and especially during his time as a judge. Penny had provided care, companionship and wise counsel while pursuing her own career, working in the community and caring for children and grandchildren.

counsel should be able to reduce the essential elements of their case to a single sheet of paper and build from there.

Advice to counsel His Honour acknowledged the assistance and professionalism of counsel who had appeared before him and said that their integrity, learning and skill were essential to a properly functioning court. Sometimes the brilliance of counsel’s argument would leave him at a loss as to how he would separate the two sides. He would only do so with great difficulty.

His advice to those counsel who were still working their way up the ranks was first that the key to effective advocacy was in knowing and being able to articulate an argument clearly and concisely. Quoting former High Court Judge, Robert Fisher QC, he said that counsel should be able to reduce the essential elements of their

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His family had “leavened and lightened” his time in the law. He acknowledged the contribution made by sons, Tim, Keir, his late son Wilfrid, and his grandchildren who, he said, did their best to ensure that he don’t get above himself. He also acknowledged the presence in the Court of his sister-inlaw, Nive, and three of his nieces, lamenting the absence of his brother, Trevor, who had passed away a year earlier. “He was,” said the Judge “always a wonderful support to me and a great friend.”

A Trade Me seal of approval Perhaps the best illustration of Justice Hansen’s career was one that actually occurred outside the context of the profession. Mrs Hinton recounted a story that Penny Hansen had shared with her. While on the Bench, the Judge had gone through a phase of being very keen on Trade Me and had made all sorts of purchases for his new bach. Some of these were successful and some, like the motor boat, were “a bit of a write-off”. However his first reports as a trader, said Mrs Hinton, reflected the qualities that had made him a great judge: “Fabulous trader, very fair, totally honest.”

World Bar Conference 2014 - Key Note Speakers The Hon. the Chief Justice Sundaresh Menon is the Chief

Justice of Singapore and a former Attorney-General of Singapore (2010 - 2012). He was admitted as an advocate and solicitor of the Supreme Court of Singapore in 1987 and as an Attorney and Counsellor-at-law of the Bar of the State of New York in 1992. He was appointed Senior Counsel in January 2008.

As a private practitioner, he was recognised as one of the leading lawyers in the fields of commercial litigation and arbitration, insolvency and construction law, in Singapore and abroad. He served as the Deputy Chairman of the Singapore International Arbitration Centre and represented Singapore at the UNCITRAL Working Group on Arbitration.

From April 2006 to March 2007, Justice Menon was a Judicial Commissioner of the Supreme Court. In 2012 he resigned as Attorney- General when he was appointed as a Judge of Appeal of the Supreme Court. In late 2012 he was appointed as the Chief Justice of Singapore.

The Rt. Hon. Lord Dyson was called to the bar (Middle Temple)

in 1968 and was made a bencher for the Middle Temple in 1990.

He was appointed as Queen’s Counsel in 1980, and his first judicial appointment was as a Recorder held between 1986 and 1993. He was appointed as a Judge of the High Court of Justice between 1993 and 2001 and was the Presiding Judge for the Technology and Construction Court between 1998 and 2001.

In 2001 he was appointed as a Lord Justice of Appeal and in 2010 was appointed Justice of the Supreme Court. He was the second Justice to be appointed to that court directly. Lord Dyson was appointed as Master of the Rolls, the second most senior judicial position in England and Wales after the Lord Chief Justice, in 2012.

Sir Christopher Greenwood CMG QC was called to the bar

at the Middle Temple in 1978 and was appointed Queen’s Counsel in 1999. He lectured in law at the University of Cambridge from 1981 to 1996 and was a professor of international law at the London School of Economics from 1996 to 2009. During this period, he regularly appeared as counsel before the International Court of Justice, the European Court of Human Rights, the English courts, and other tribunals. In 2002 he was appointed Companion of the Order of St Michael and St George (CMG) for services to international law. He was knighted in the 2009, the same year he commenced sitting as a Judge of the International Court of Justice.

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A Tribute to the Rt. Hon. Sir Ian McKay KNZM, 1929-2014

By E W Thomas*

My first employer, fellow litigator, judicial colleague, and long-standing friend, Ian McKay, died on 20 February last. He was 85. I wish to pay him a heartfelt tribute.

As this is a personal tribute, I do not intend to provide a chronological account on Ian McKay’s remarkable career. An excellent resume can be found on the Law Society’s website (my.lawsociety). Sir Ivor Richardson also delivered an outstanding eulogy at Ian’s funeral and it will also be available on the internet.

In the 1950s, budding lawyers completed their degrees part-time. I was fortunate to get a job as Ian’s clerk in 1955. He was a relatively new partner in Swan Davies and McKay, a firm which has since morphed into Kensington Swan. Ian had a unit of three; himself, his secretary and me. His efficiency and industry was prodigious and he assumed that these qualities would be shared by his underlings. We were run off our feet.

Ian handled the court work in the firm. But that did not mean he did not also handle every other kind of legal work going, from conveyancing to crime, from trusts to property disputes, from wills to adoptions, and everything in between His knowledge of all aspects of the law and practice was encyclopaedic.

I learned a great deal at Ian’s elbow. But Ian did not teach by adopting the tutorial style. Rather, he would hand me a file with a precedent together with a request to have the job done by lunchtime. Such was the example he set that I felt obliged to comply. I was expected to exercise a full measure of initiative, and I did, often adventurously so. Praise from Ian; a rather subdued, “very good”, was all the incentive needed, although I came to know that the heavily re-worked end product would bear little resemblance to my original effort.

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For many years, Ian was an active debater. He competed in what was called the “Downtown” debating competition. My good friend, Gordon Cruden, and I joined the competition representing the University. It has to be said that the competition was not daunting. The various speakers tended to be glib and light on substance. The one outstanding exception was Ian McKay. He was quick, sharp and fluent. He spoke with intelligence simply because he was intelligent. Before he rebutted a point he would re-state the point one had made in far stronger and more telling terms than one had originally stated it. To a debater, this is a mind-numbing experience. For Cruden and I, the real challenge became the challenge to beat McKay. The fact I cannot remember the outcome of our regular verbal jousts would suggest we were seldom successful - if at all.

I encountered Ian on the other side in court from time to time. In our first foray he challenged my pleading in a defamation case arguing that the key paragraph was prolix and open to multiple ambiguous meanings. It was not until I heard Ian’s penetrating argument that I realised the paragraph did not encapsulate the crystal clear clarity I had thought. Seeking to discover how a counsel could make so much out of so little I sought his advice. His solemn counsel was to leave preparation until the night before the hearing and then prepare one’s submission with a bottle of malt whisky at one’s elbow.

Of course, he didn’t expect me to believe him, and I didn’t – except for the malt whisky bit.

While in practice, Ian was a notable company director.

He sat on a number of company boards. I was called upon to attend a board meeting of a trans-Tasman company and advise on projected legal proceedings.

Ian was a member of the board. Of course, Ian would have had a complete knowledge of the relevant law and a precise perception of what my advice should be. At no point, however, did he seek to anticipate, clarify, redirect, or contradict my advice. It was a measure of the man that in deference to counsel he adhered to the role of director.

While my admiration and respect for Ian is unbounded, he had the worrying habit of at times having a nap during the day. Ian was extremely active in Law Society affairs. For a time he was the Chair of the Society’s Courts and Tribunals Committee. I was the Deputy Chair. The tables were arranged in a large square. Ian sat on one side of the square and I sat on the other.

Ian’s conduct of the business of the Committee was immaculate. But after lunch it was his custom to fall

into a sound sleep. Sitting on the other side of the square I would take up the chair’s duties and proceed to go through the next half dozen or more items on the agenda. Then, the Committee members and I would become aware that Ian had seamlessly rejoined the meeting and taken over the chair for the remaining items on the agenda. What was utterly remarkable was the fact that he had a precise knowledge of all that had gone on during the course of his slumber!

After a sterling career, Ian was appointed direct to the Court of Appeal in 1991 at the age of 62.

Although there are many in the profession who are opposed to direct appointments to an appellate court, Ian’s appointment was widely welcomed. His reputation as a lawyer and advocate was second to none. Ian very quickly established a reputation as an intelligent, logical and industrious Judge. Along with others at the bar, I enjoyed appearing before him knowing that his pointed questions would let you know where you were heading – or should be heading.

I joined Sir Ian on the Court of Appeal for three months while a High Court Judge in 1992 and, then, as a permanent member in 1995. I occasionally joked that Ian regarded this development as a renewal of our employer/employee relationship of some three or more decades earlier. But that was far from the truth. He was a colleague in the best sense of the word.

Ian was known as a “black letter” lawyer. In contrast, if anything, I was undeservedly known as a “grey letter” or even “blurry letter” lawyer. Yet, it was remarkable that more often than not we agreed. The fact is that, irrespective of a judge’s leanings, a complete marshalling and mastery of the facts, a close and critical analysis of the issues and argument, deliberate logical thinking, a touch of commonsense and an instinct for justice will lead judges in the same direction to the same result.

It is nevertheless true that in the year following my appointment when Lord Cooke was the President Ian delivered the occasional dissenting judgment while I remained cemented in the majority. It was a liberal Court.

But with the departure of Cooke and new appointments to the Court it became a conservative Court and, of course, the tables were reversed.

During this latter period Ian was an enormous help to me, particularly at the judicial conferences following a hearing. I tended to be hesitant, tentative and uncertain.

While such a style may suit an academic environment, it was not effective at judicial conferences. Ian, even though he might ultimately disagree with me, would come to my assistance. With the confidence and force

of a seasoned debater he would spell out for our colleagues what I had just tried to say and outline the reasons in favour of what I had said. Time and time again I would find myself saying (to myself); “Yes, that is what I am thinking.”

One facet of Ian’s abilities has acquired legendary status and should be mentioned. Ian was a serious mathematician. He took pride in the fact that he could arrive at the answer to a complicated mathematical problem in his head or with brief markings on a scrap of paper faster that those operating a calculator. I can testify that this is true.

On at least three or four occasions over the years I personally witnessed Ian pronounce the answer to a difficult mathematical problem while those around him were still tapping away at their calculators and, indeed, while I was still trying to get mine open.

Notwithstanding his immense intelligence, diligence and perception I never at any time throughout our long association noticed the slightest trace of arrogance in Ian. In discourse, he seemed to treat his ability as irrelevant or to assume that those whom he dealt with were of equal intellectual stature.

He could be direct in what he said, but such directness never caused rancour or resentment.

Ian’s universal popularity reflected these qualities.

And throughout his remarkable career as adviser, litigator, arbitrator, participant in Law Society affairs, member of law reform committees, government appointee to various inquiries and, finally, appellate Judge, Ian remained a piper of considerable accomplishment. But that is not to be held against him.

Peter Spiller in his outstanding history of the Court of Appeal, New Zealand Court of Appeal 1958-1996: A History (Thomson/Brookers, 2002, (at p 207)) admirably sums up Ian McKay’s great strengths. He was a scrupulous, independent-minded Judge of consummate efficiency. He had a wealth of practical legal experience, particularly in the commercial sphere, and his insights supported the pragmatic approach of the Court. At the same time he tempered the focus of the Court on practical justice by insisting on a more restrained role for the judge and a greater stress on settled law and practice. In that, it can truly be said he was a lawyer’s lawyer. * The Rt. Hon. Sir Edmund Thomas LLB (NZ) LLD(Vic) KNZM QC is a retired Judge of the Court of Appeal of New Zealand and a former Acting Judge of the Supreme Court of New Zealand. He is presently a Distinguished Fellow at the Auckland Law School.

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Obituary - Alan Lough Hassall QC 10 September 1925 – 6 January 2014

By David O’Neill* Alan Hassall died on 6 January 2014 aged 88 after a long and successful career in the law.

Alan was admitted to the Bar in 1949 and allowed his practising certificate to expire in 2012 – an astonishing period of 63 years at the Bar. Including the period when he was a Law Clerk and his period with the Army as Prosecuting Alan Lough Hassall QC Counsel in Japan, he practised law for 67 years, which is extraordinary.

Alan was born in Timaru, the son of William and Amy Hassall. He attended Waimate High and then Canterbury University from 1944 – 1947. Prior to attending University, Alan worked with a shearing gang which gave him some savings and worldly experience.

In 1945 one could not train for the law without a job in a law office. Alan, in his inimitable way, walked Christchurch looking for work. He was able to secure a position in the last law office that he entered, T D Harman & Son being paid 15 shillings and nine pence per week.

By the end of 1945 he had completed seven units towards a law degree but his savings had disappeared and he could not afford to stay at University. The War had ended and the Army was seeking volunteers for the Occupation Forces in Japan (J Force). Alan enlisted.

He entered the Army as a Private but shortly afterwards received an order to transfer to Papakura. Not having travelled out of the South Island, he endured the trip from Christchurch to Papakura. Arriving at Papakura he found no one knew why he was there.

Later that day he discovered that J Force Legal HQ required a Typist. Because Alan had seven units of a law degree and was described as a Law Clerk in civilian

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life, the Army concluded that he was suited as a Typist.

He embarked for Japan in the first draft of occupation troops. Alan explained that he could not type. The Army was not fazed by this and explained to him that orders were orders.

In Japan Alan learned to type, albeit slowly. Staff turnaround was quick and shortly Private Hassall became Captain and at the age of 21 was the Legal Staff Officer for Army HQ in Japan.

Alan regularly appeared in Military Courts prosecuting for breaches of the MacArthur directives and other crimes. Alan once said that whilst he was prosecuting murders in Japan, his contemporaries in New Zealand were dealing with parking offences.

In Japan Alan continued his studies extramurally returning to New Zealand in 1948. He received a free travel warrant when he left the Army. Alan toured NZ on the train visiting town after town to enquire whether any lawyer would employ him. One stop was Hamilton.

Alan was directed to Messrs Harkness and Henry, a small two partner firm in Wesley Chambers. He obtained a job.

In 1950 Alan decided to strike out on his own. He spoke with his employers about his intentions who attempted to dissuade him. His employers could see that he would not be dissuaded from his goal so he was asked to leave immediately.

Alan found that he was out on the street with no clients, no premises and no assets, other than a bike.

He was able to obtain an office and so he waited for his first client to arrive. His savings soon dwindled.

Alan’s position was dire and he was down to his last £7 before things took an upward turn. Alan did anything in those days from conveyancing to Court work. Legal Aid did not exist, advertising was not permitted and maintenance and domestic work was generally done pro bono.

Alan’s sporting interests in Hamilton were rugby and cricket which he played to a senior level.

Alan was then joined in partnership by an old University friend Alan Houston. Alan Houston operated from Huntly and Alan Hassall from Hamilton. The two formed

the partnership and were later joined by Larry O’Neill.

Later, Alan Houston broke away from the firm.

The firm of Hassall O’Neill soon became Hassall O’Neill Allen & Parker. Alan remained with the firm as its senior partner until 1979 when he left and went to the Bar setting up in the firm’s original offices in Garden Place in Hamilton.

Alan had married his secretary Shirley Whiting in 1951 and they had two children, Stephen and Marlene. The marriage ended in divorce.

Alan had a love of farming and purchased a small block out on River Road, Hamilton, in the 1950s which he retained until his death. Because he had to bring up his two children with the help of housekeepers, he moved back into town. By all accounts between him and his housekeepers, he did a fine job bringing up both the children. Alan later purchased another block of land to the south east of Hamilton where he lived until a few years ago.

Alan’s love of farming extended to using his cars as farm utilities. The local BMW dealer would often pick straw and other items out of the back seat and the boot.

Alan used his BMW to transport hay, lambs and calves.

He married again in the late 1960s, but that did not work out either. Alan’s greatest love, apart from his children, was his love of the law and that probably got in the way of making a marriage work. Most weekends Alan’s car would be seen outside the High Court library.

His work ethic was prodigious. That, coupled with a photographic memory, made him a fearsome advocate.

It was said at his funeral that such were Alan’s achievements that when the members of his Chambers were being shown the LexisNexis NZLR electronic database, the salesman put in Alan’s name to show how quickly the programme worked. The database appeared to think for a while, think a bit longer and then finally spat out the cases “Hassall” had appeared in. Apparently the salesman reared back in surprise because there were so many cases.

He appeared in the (then) Supreme Court and High Court throughout New Zealand and also in the Court of Appeal since the early 1950s to such an extent probably unmatched by any of his colleagues.

For many leaders in the profession, it is thought that speaking of the major cases in which they were involved in is a fitting tribute. This has been considered in Alan’s

case, but there are just so many that to try and do so would take up more space than this Obituary has available.

As indicated earlier in this Obituary, his practice as a lawyer was marked by his tremendous capacity for hard work and attention to detail. Alan’s clients were fortunate to have him represent them because he devoted himself to their cause, some of which appeared hopeless. Sometimes he would conclude that his clients needed his representation but could not afford him, so he would not charge them or alternatively, charge them a pittance.

In addition, Alan’s contribution to the legal profession was noteworthy. His juniors were always included in the case, with Alan taking great care to explain to them what he was doing because he recognised this as a valuable method of tuition. Alan was active in Law Society matters as President of the Hamilton District Law Society from 1975 – 1976 and a member of the NZLS Council.

Another of Alan’s great assets was his unfailing courtesy to all, whether it was the Chief Justice or the Registration Clerk at the District Court. Alan never got carried away with his own position in life.

On one occasion, one of his Chambers colleagues, Philip Morgan QC, went into the office in the weekend only to find Hamilton’s leading QC vacuuming Philip’s office. Philip was embarrassed to see this occur and persuaded Alan gently that perhaps a cleaner was required.

The law, the profession and Hamilton will be much poorer as a result of Alan’s death. However, his mark on the profession and the law in New Zealand will remain for a very long time to come.

Alan is survived by his two children and his four grandchildren. * David O’Neill knew Alan Hassall QC most of his life. David’s father and Alan were partners in Hassall, O’Neill Allen & Partners for approximately 30 years and remained close friends right up until Alan’s death. They were also members of an ever shrinking share club (rumoured to be one of the oldest in NZ) which their oldest sons were invited to join (to boost numbers), and therefore David’s contact with Alan was both through his father, professionally and through this share club.

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The Singing Teacher – Leading Cases in Song

by Susan Dugdale LEADING CASES IN

SONG Stephen Todd Illustrations by Murray Nicol

In late 2013 an extraordinary book slipped onto the shelves just in time for Christmas. This atypical offering is a beautifully illustrated song book.

The brainchild of Professor Stephen Todd, (Professor of Law University of Canterbury and Professor of Common Law, University of Nottingham, UK), the book features, as its title says, leading cases set to music.

The story behind the songs The initial idea to sing the cases was sparked by the call to produce an item for the Canterbury Law Revue some twenty years ago. That first song was a hit. Over time more were written and then entire operas, albeit short ones. Now legions of Todd’s students on both sides of the world have been sung to, an experience they rate as A+: “awesome” and “amazing”.

Professor Todd says he applied certain criteria in choosing suitable cases for treatment. They needed to be interesting, amusing, bizarre or important as well as appropriately fitting the light verse make-over they were going to receive. That ruled out anything too nasty, tragic or the ultimate crime; too boring.

A long-time aficionado of the famous Victorian duo Gilbert and Sullivan (G & S) comic operas, he recognised they provided a perfect template to carry his message.

In doing so he joins a long line of people lampooning the original works which is fitting in itself as they began as parodies of grand opera: a flummery of political satire and deadpan absurdity. Through him the legacy lives on.

Cases & topics In all 42 cases spanning the years 1893 (Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256) to 2011 (British Chiropractic Association v Singh [2011]1 WLR 133) get the Todd channelling G & S patter treatment.

The topic range is extensive including negligence, privacy, trespassing, harassment, branding, food quality, defamation, and the question of whether God is a person. Well-known companies and personages make appearances: McDonalds, Pepsico, News of the World, the Mirror, Naomi Campbell, Max Mosley, Lord Atkin, and of course numerous singing Judges.

“Though we’re intellectuelle We can sing and dance as well And caper a jig or four And we’re never known to cower At the words of any lawyer And we’re never, never wrong at law”

From “We are the Judges of the Court of Law” Donoghue v Stevenson – an opera in two acts. Based on Donoghue v Stevenson [1932] AC 562 Music & illustrations In true ‘not only but also’ fashion the book includes music (adapted from Sullivan’s score by John Pattinson) to accompany the songs and a whimsical series of quirky illustrations reminiscent of the work of Quentin Blake for Roald Dahl by Murray Nicol.

At present there is not a professional quality recording of any of the works. Negotiations are tentatively underway to fill this need but it is too early to announce who is going to do the honours and when the recordings will be ready.

In the meantime showing real Kiwi spirit Professor Todd recommends a DIY approach. As he says in the preface: “The songs work better when they are actually sung and including the score makes singing them possible or at least a good deal easier.” He even gives a karaoke option for those who cannot play their own accompaniment.

(Leading Cases in Song, Thomson Reuters, December 2013, 228 pages, hardback)

Simply visit our e-store www.thomsonreuters.co.nz/leadingcases use the promotional code NZBA13 to receive your exclusive 20% discount on LEADING CASES IN SONG (now only $40.00 + GST) This offer expires 30 April 2014

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iPad/iPhone Apps for Lawyers

by Ian Handricks* The iPhone and iPad are both perfect tools to help you consolidate, organise and archive a vast amount of information.

They can provide you with an easily searched facility to draw on documents and data you want, when you need it, at the touch of your finger.

They are lightweight and portable devices that can give you instant access to your entire filing system, documents on demand and immediate access to the internet. There are a host of functional programs (apps) that can help you process, analyse, distribute, edit and develop your thoughts, materials and virtually all aspects of your day to day activities.

Essential apps for lawyers could include: • Office2 HD: The best app to open, view, create and edit Word, Excel and PowerPoint files. The user interface is similar to your desktop Office programs.

• Goodreader: The very best document editor, organiser and viewer available.

Especially good for PDF files and a perfect solution for organising related documents in folders. Goodreader can recognise a wide range of file types.

• WritePad: A near-perfect handwriting recognition app.

Simply write on the screen with your finger or stylus and WritePad will immediately convert to typewritten text. All text can be exported to a variety of applications and to email.

• Audionote: This app allows you to record dialogue while simultaneously taking notes, drawing sketches and diagrams. On playback, elements that have been typed or drawn on the screen are highlighted at the point during the recording when those entries were made. Perfect for taking notes during a presentation or discussion.

• Keynote: This app allows you to create, view, edit and present PowerPoint presentations.

• TrialPad: A powerful tool for managing case presentations for the courtroom. It enables you to organise, annotate, and manage your case files, data, images, emails and documents for court hearings, jury trials, mediations, and other settings. You can also display images and exhibits using a projector or a monitor.

• Austlii: This enables easy searching of the Austlii suite of databases from your mobile devices.

• iAnnotate: PDF documents can be filled out, signed and notated. The app can import Word and PowerPoint documents, and convert websites into PDF documents.

Annotations can be “flattened” into the PDF so that no one can modify them after you send them out.

• MyScript Calculator: An ingenious calculator that recognises and calculates hand-written equations. Fast and powerful and able to process complex calculations with ease.

• Air Transfer+: The best method of transferring documents from your desktop computer to the iPad. • Kindle: The app for viewing and reading books. An essential tool to allow you an opportunity to source law books via the internet and have them available on-demand.

• SayHi: The solution to foreign language communication problems. Choose input and output languages – what’s spoken is recognised and then translated and spoken back in the other language. What is spoken is also written! The app has an extensive library of languages available and is ideal for dealing with clients and witnesses where English is not their first language.

• ITeleport: This app provides remote access to your desktop computer from your iPad/iPhone. It can connect to and operate your desktop from anywhere in the world!

• box.net/dropbox/skydrive: These apps all provide access to files and documents stored in the cloud. An ideal solution to file sharing with associates.

• Harvest time recorder: This is a simple time recorder for your practice. Features such as invoicing, time sheets and time management can be access from this app. iPads and iPhones can be easily configured so that you can hear any documents spoken back to you rather than having to read them. You no longer need to type in every word. These devices can recognise your handwriting, speech and interpret your questions (Siri). The devices are the foundation of a smart legal practice. They enable lawyers to conduct their practice and communicate with colleagues and clients more efficiently. * Ian Handricks has worked in the technology sector for many years and specialises in teaching professionals how to get the most from their mobile devices. Ian can be reached at ihan@ihug.co.nz or visit www.ianhandricks. com/145/ipad-training/ for more information on iPhone/iPad training services.

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Will a $300 to $3,000 Investment in Technology Make Your Professional and Personal Life a Little Easier?

By Scott Russ* Lightweight tablets continue to replace laptop computers and pen and paper in offices and courtrooms throughout New Zealand. They are preferable to smart phones for managing emails and diaries as well as being able to convert handwritten, on screen notes into Microsoft Word documents, conduct video conferences with up to four different sites/users and a wide range of other productivity enhancing tasks.

Tablet or laptop? There is no right or wrong answer. You just need to consider how you would use the device.

Potential benefits of a Tablet 1. Tablets are smaller and lighter than most laptops.

2. Tablets are easier to use than a laptop when standing up or sitting down.

3. Tablets allow you to make handwritten notes anytime, anywhere. These can be saved, accessed, reviewed, reorganised and converted into other formats.

4. You can easily email handwritten or typed notes via Email or messaging.

5. Tablet’s screens are larger than smart phones making them a good choice for legal professionals who access word intensive, web-based information.

Which brand? Apple iPads and devices running Google’s Android operating system or Microsoft’s Windows 8 platform are all great devices. A wide range of technology resellers including OfficeMax can provide advice and guidance on which device best meets your needs.

Mobility versus cost. Do you plan to use the Tablet in the home or office where you have Wi-Fi, or while you are out of Wi-Fi range? A 3G capable device is like your mobile phone. It provides greater freedom but adds about two hundred dollars to the device price as well as on-going data charges through your mobile provider.

How much memory will I need? This depends on the amount of data or Apps you plan to store on the Tablet.

Storage capacity ranges from 16 to 32 to 64 gigabytes (GB). Most mid-level users will find 32GB will provide ample capacity and there is a host of “Cloud” based data storage options available.

What sorts of Apps should I consider? There are thousands of Apps for Tablets with new ones being

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Potential drawback of a Tablet 1. You will still need a mobile phone although you can use web based video conferencing on Tablets.

2. Additional cost - Like most technology, the newest releases of Tablets have more features for a lower price than previous models.

3. ‘Handwriting-to-text’ conversion programs require a bit of training like speech-to-text systems. This can require an initial investment in time and may at times be frustrating.

4. Since Tablets have smaller screens and keyboards than laptops they can be a drawback to some users.

5. They lack resident software such as Word and Excel.

Microsoft’s newly released Windows 8 will address some of this. introduced almost daily. While most Apps can be downloaded for free, some of the more powerful Apps can cost anywhere from one to several hundred dollars.

There are a number of sites you can download or purchase Apps from. Two that you can start with are: www.apple.com/nz/itunes/ for Apple iPad and iPhone apps and www.geekzone.co.nz › Forums › Android for Android apps.

Some of the most popular apps being used by the legal profession include: Evernote - allows you to store and organise notes, clippings, photos and other information from your digital world. You can access and search through this information across various platforms including PC and mobile devices.

Docs to go is an all-in-one application with support for Microsoft Word, Excel & PowerPoint, PDF, Apple iWork and other files and attachments.

Dragon Dictation - On an iPhone or iPad Dragon Dictation uses voice recognition software that allows you to dictate emails, text messages or memos. The Blackberry version allows for hands free email creation.

RSS readers - RSS feeds are a great way to stay updated with news and information and there is no shortage of RSS readers for mobile devices. Reeder is an RSS reader for Apple devices that synchronises with Google Reader. BeReader is one for Blackberry and DailyReader one for Android.

PDF annotators - iAnnotate is a PDF reader for Apple devices that allows you to edit and annotate documents on your mobile device. Android users may find RepliGo Reader useful.

Black’s Law Dictionary - Thomson Reuters says Black’s Law Dictionary is the most widely cited legal text in the world. Currently only available for iPhone, apps for Android and Blackberry are also in development. At US $54.99 from the Apple appstore it’s not cheap, but the hard copy will cost you NZ $124 and won’t fit in your pocket.

Dropbox - allows you to sync files between your mobile device and your computer as well as storing them online and sharing them with selected colleagues. When used on a mobile device it can replace the role of USB sticks for storing documents.

Bump - Share info such as contact details or files by bumping your phones together. Sort of like a virtual handshake. For iPhone and Android only; it won’t work for Blackberry as it relies on a phone’s built-in accelerometer.

Interested in learning more or purchasing a tablet or accessories? OfficeMax can help. We offer national discounts for NZBA members. Contact OfficeMax at: nzbar@officemax.co.nz * Scott Russ is the National Manager for Groups & Associations with OfficeMax, one of New Zealand’s largest providers of office consumables and technology and a New Zealand Bar Association Business Partner.

NZBA members can obtain significant savings from this business relationship. For more information see http:// www.nzbar.org.nz/Category?Action=View&Category_ id=250.

Google search app - Speak your queries into your phone and save precious seconds of typing. Or search using your device’s built in camera; Google will analyse a picture to translate a sign, find a copy of a book or identify a landmark. mPass - Air New Zealand’s boarding pass app allows you to keep all your flight information in your pocket.

The mPass boarding pass is also recognised by Air New Zealand airport kiosks so you don’t need a hardcopy.

27

Audi RS6 Review

By David O’Neill* It’s not discreet. Have a look at the photographs and I think you’ll agree with me. There is nothing about this car that looks anything other than aggressive. It, sort of, looks like it wants to eat something raw – preferably meat.

From whatever angle you look at it, it’s a car that dominates the space it’s in and when you start it up there is nothing else that can match it.

So, what does $200,000 buy you? Well, it doesn’t buy you a house in Auckland. In fact it doesn’t buy you a house in many places unless you want to live in the remote wilderness past the back of beyond. By the same token it will buy you the new Audi RS6.

The local Audi dealer, Ebbett Prestige, loaned me the car for a few days. It was the Avant (fancy word for station wagon). I think Audi will only produce the RS series in the Avant model now.

The engine is a twin turbo four litre V8. For those technically minded, it puts out 412kW or 560hp, develops 700Nm of torque and has an eight speed tiptronic box.

It has air suspension and more goodies than you could ever imagine. It even has a system where, if you have the key in your pocket, you can walk up to the back of the car with your arms laden with groceries, wave your foot underneath the bumper and a sensor will pick up this and open the boot for you. Not bad …..Alternatively you could get Jeeves to do all this and he can wave his foot around getting the boot open.

Audi claims that the acceleration of the car 0-100km/h is 3.9 seconds. I wouldn’t have a clue. My reasoning is sound. I took it out onto a back road and gave it a bit of welly and then just hung onto the wheel. There was no way I could fiddle with a stopwatch and steer and see where I was going. As it was it almost peeled the skin off my eyeballs. The horizon gets real close real fast. I can’t print what I said here but the local farmer heard the scream from the car as I went past.

If you are interested in economy, then this is not the car for you. However, given the amount of power it puts out it has reasonable economy. I only had the car for a few days and was able to do some fairly rudimentary figures. Cruising at 100km/h the car was averaging 5.3 litres per 100km.

Around town it was averaging 9.5 litres per 100km, but if you put your foot down it climbed to a massive average of 27.9 litres per 100km. So if you want it, buy shares in BP as well. Mind you, this is a car that weighs almost two tonnes.

Inside it has got all the usual bits and pieces and a few more. It was hard to get to grips with everything that the car had to offer in the short time that I had it.

Thankfully Audi has finally produced a car which actually sounds right as well as going quickly. One of my criticisms of the older RS4s was that they sounded like they were pushing the exhaust gases through a rubber hose and made a flubbery noise (think blowing raspberries through a rubber hose – if you get my drift). This car bangs and pops when it is in sport mode and is undoubtedly more “out there” than other Audis have been.

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I took it out on a series of roads that I normally use for reviewing cars. I’m not going to print here what speed I obtained, but needless to say it is very fast and gets up to speeds the driver chooses incredibly quickly.

It is a big car to slow down, but has brakes the size of huge serving plates and they work really well…………….um…… moving right along……

This car was painted in a dark titanium/grey colour and is very striking when matched with the titanium coloured wheels.

Speaking of brakes, the option list does state that you can have the ceramic brake package for a mere $23,500. Frankly, unless you are going racing around a circuit, the brakes on the car as standard are good enough. At $23,500 for ceramic brakes, I think the car will wear out before they will.

For a heavy car, it corners pretty well also. There is one particular corner that I take cars through and having done it a few times now I know what I am looking for. This car went round the corner very tidily and without any drama.

Inside it is the usual Audi kit, glossy black piano inlays in the doors and the dashboard and fine leather seats. These seats do not have the usual high bolsters that the earlier RS models had and therefore you don’t feel like you have to climb over something to get into it. All in all – comfy!

The obligatory centralised computer system which allows you to dial up all sorts of comfort levels, suspension modes and different noises from the exhaust system was present and all a little bit overwhelming when confronted with it.

I felt that given the short time I was going to drive the car, I would stick it in sport and leave it there. This means that even when you start the car the exhaust cracks and bangs and sounds like the local bogan has arrived. It’s probably a boy thing – but I liked it.

It has cameras installed at the front and rear of the car so you get a colour picture when you are backing or going forward in a tight space.

I don’t think I’ll be getting one soon. I wouldn’t mind one, but I don’t think my purse stretches that far.

I can’t compare it with any other similar vehicles, such as the Mercedes E63 or the BMW M5, so I can’t draw any comparisons for you. I’ll leave that up to you.

However, I have to say this was one very impressive motor vehicle. It looks smart and goes like stink and my sons were drooling all over it as it sat in the garage. * Confirmed Petrol Head and suspected bogan, David O’Neill is a barrister practising in Hamilton. David is a member of the NZBA Council and writes regularly for At the Bar.

Events Valedictory Sitting – Hon. Justice Rodney Hansen - 12 March 2014

Antonia Fisher and Stuart Grieve QC

Simon Jefferson QC

Bruce Gray QC

Anne Hinton QC

Stephen Mills QC

Neil Campbell QC and Peter Watts QC

Ellie Harrison and Sandra Grant

Zannah Johnston, Peter Winter, Frank Godinet, Inner Bar and Simativa Perese

Justice Rodney Hansen

The Judge’s family View from the Gallery

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Events Swearing In Ceremony – Hon. Justice Simon Moore 21 March 2014, No. 1 Courtroom, High Court, Auckland.

Assistant Commissioner Allan Boreham

Wendy Brandon

Superintendent Michael Clements and Sergeant Mark Calwell

Sir David and Lady Tompkins, and Judge Arthur Tompkins

The Court at 3.15 pm…

…and the Court at 3.55pm

The Court filling up

Bruce Gray QC, Matthew Casey QC and Stephen Mills QC.

John Katz QC (in background) and Julian Miles QC

Lynette Maru (Chief Justice’s Associate) checks over seating plan with Andrew Brown QC

Miriam Dean QC CNZM and Tomas KennedyGrant QC

Registrar Hinewai Barrett reads the warrant of appointment

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Stephen Mills QC, President of the NZBA greets Justice Minister Hon. Judith Collins as Tomas Kennedy-Grant QC looks on.

Minister of Justice, Hon. Judith Collins

Colin Carruthers QC

The Bench

Hon. Justice Moore

Hon. Justice Simon Eisdell Moore swears the Judicial Oath

New Members of the New Zealand Bar Association Greg Arthur

The QCs - Row 1: Paul Davison, Chris Hodson, John Katz; Row 2: David Jones, Brian Keene. Paul Dacre; Seated behind the Silks and in front of the dock - Justice Moore’s father, Sir Patrick Eisdell Moore with his daughter in law and Hon. Judith Collins.

Ann-Marie Beveridge

HAMILTON

Phillip Cornegé

HAMILTON

Nicholas Dutch

TAURANGA

Ewan Eggleston

TAURANGA

Christopher Griggs

WELLINGTON

Janice Harland

AUCKLAND

Hamish McQueen

AUCKLAND

Brianna Parkinson

AUCKLAND

Kevin Riordan ONZM Daniel Schellenberg

The Inner Bar

WELLINGTON

WELLINGTON AUCKLAND

Phil Shamy

CHRISTCHURCH

Michael Starling

CHRISTCHURCH

Anne Toohey

CHRISTCHURCH

Garry Williams Donna Wingham

AUCKLAND DUNEDIN

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2013-2014 COUNCIL CONTACT DETAILS STEPHEN MILLS QC – President Ph: +64 9 307 9820 stephen.mills@shortlandchambers.co.nz P O Box 4338, Shortland Street, Auckland 1140 PAUL MABEY QC - Vice President/President Elect Ph: +64 7 577 1091 Fax: +64 7 577 1092 pgmabey@xtra.co.nz PO Box 13199, Tauranga 3141

WORLD BAR CONFERENCE 2014

ADVOCATES AS PROTECTORS OF THE RULE OF LAW 4th to 6th September 2014 Heritage Hotel, Queenstown, New Zealand Hosted by the New Zealand Bar Association, the World Bar Conference 2014 will bring together members of the International Council of Advocates and Barristers and guest jurisdictions to hear from some of the best legal minds and for discussion and debate.

Register early to secure your place: www. nzbar.org.nz.

Key Topics • Barbarians at the gate: challenges of globalisation to the rule of law • The role of the advocate in protecting human rights and the rule of law • Rule of law, sovereign borders and national security concerns - wither human rights?

• War is not the answer: the ever present threat to the rule of law • International investment treaties: balancing national sovereignty and investor protection • Surveillance versus privacy: the balance between the State, the Fourth Estate, the citizen and the rule of law • The values and functions of a specialist advocate • Advocacy - challenges in the 21st century

Speakers • The Hon the Chief Justice Sundaresh • Miriam Dean CNZM QC (New Zealand) Menon (Singapore) - Keynote Speaker • The Rt Hon Chief Justice Elias (New Zealand) • The Rt Hon John Lord Dyson, Master • The Hon Christopher Finlayson QC, of the Rolls (United Kingdom) Attorney-General (New Zealand) Keynote Speaker • Stephen Hockman QC (United Kingdom) • H.E. Judge Sir Christopher Greenwood • Imrana Jalal (Philippines) CMG QC (United Kingdom; International • The Hon Mr Justice Robert Jay (United Court of Justice) - Keynote Speaker Kingdom) • Sir David Baragwanath (New Zealand) • Chief Judge Alex Kozinski (USA) • Hon Justice Margaret Beazley AO • The Hon Justice Glenn Martin AM (Australia) (Australia) • Julian Miles QC (New Zealand) • Julian Burnside AO QC (Australia) • Beatrice Mtetwa (Zimbabwe) • Sir David Carruthers (New Zealand) • Joe Smouha QC (United Kingdom) • Russell Coleman SC (Hong Kong) • The Hon Justice Joseph Williams (New • Gillian Coumbe QC (New Zealand) Zealand) • Kate Davenport QC (New Zealand)

www.nzbar.org.nz

TIM CASTLE – Vice President Ph: +64 4 471 0523 Fax: +64 4 471 0672 tim.castle@xtra.co.nz P O Box 10048, Wellington PETER DAVEY Ph: +64 9 309 0475; Fax: +64 9 354 3850 pj@davey.co.nz PO Box 1811, Shortland Street, AUCKLAND 1140 CLIVE ELLIOTT QC Ph: +64 9 309 1769; Fax: +64 9 366 1599 elliott@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 MARCUS ELLIOTT Ph +64 3 348 7300 me@marcuselliott.com PO Box 9344, Christchurch BRUCE GRAY QC Ph: +64 9 307 9811; Fax: +64 9 307 1572 bdgray@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 LISA HANSEN Ph: +64 4 914 1052 l.hansen@barristerscomm.com PO Box 8045, Wellington 6143 DESLEY HORTON - Junior Barristers Representative Ph +64 9 307 9826 dhorton@shortlandchambers.co.nz P O Box 4338, Shortland Street, Auckland, 1140, DAVID O’NEILL Ph: +64 7 839 1745 Fax: +64 7 838 9319 david.oneill@nzbarrister.com PO Box 815, Hamilton 3240 SUZANNE ROBERTSON Ph: +64 9 307 8778 suzannerobertson@xtra.co.nz PO Box 854, Shortland Street, Auckland 1140 JUSTIN SMITH QC Ph: +64 4 917 1080; Fax: + 64 4 472 9029 justin.smith@stoutstreet.co.nz PO Box 5722, Lambton Quay, Wellington MATTHEW SMITH – Junior Barristers Representative Ph: +64 9 460 0749 matthew.smith@chambers.co.nz PO Box 1530, Wellington 6140 DEAN TOBIN Ph: +64 3 477 8781 Fax: +64 3 477 8382 dean.tobin@princeschambers.net P O Box 1424, Dunedin MALCOLM WALLACE – Vice President/Treasurer Ph: +64 3 379 6976 Fax: +64 3 366 6291 malcolmwallace@bridgesidechambers.co.nz P O Box 13254, Christchurch 8141

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