At the Bar December 2008

At The Bar

December 2008

Judicial Review Proposals Spark Concern Deep concerns about the constitutional implications of changes proposed by the Law Commission to Judicial review have been expressed by submitters ranging from Chief Justice Dame Sian Elias, to practitioners and academics. The commission in August released an issues paper, Review of Prerogative Writs.

The document proposed that a new Judicature Amendment Act be passed to replace the 1972 legislation. This would provide for Photograph taken at the American Bar Association Distinguished Guest Program 2008 and provided courtesy of the orders in the nature of mandamus, American Bar Association. certiorari and prohibition, while the Flying the flag for the New Zealand Bar Association is Colin Carruthers QC [pictured in the second row, far right, second from the end], at the American Bar Association annual meeting held in New York City in August. general shape of Judicial review would be authorised by Parliament answer to the question as to the source of the authority of in the light of current conditions and social requirements. the court. However, the question impacted on fundamental However, the proposals have drawn criticism from elements of the New Zealand constitution which had not submitters. Justice Elias in her submission said that the been determined, and answers should not be assumed in recommendations affected the existing legal order of New what purported to be a procedural reform.

Zealand and ought not to be progressed other than as Justice Elias said that excluding the inherent jurisdiction of part of a squarely confronted constitutional reform. She the court to grant Judicial review would be a substantive, said that practical and technical reasons for advancing and not a procedural, change and much wider public the proposals, such as complexity and obscurity, were engagement would be required before the commission’s overstated. views could properly be acted on.

“They do not justify the radical She concluded that the commission’s change entailed in excluding the process was not an appropriate inherent jurisdiction of the court way to reform the New Zealand to control abuse of power. Many constitution. of the propositions on which the Christchurch Judge, Justice John proposals are based, such as the Fogarty, in a personal submission, division between public and private said that for Parliament by a simple law, are contestable. The exclusive majority to assume authority to statutory jurisdiction proposed is delimit Judicial review would be to likely to inhibit the responsiveness qualify significantly the independent of administrative law in meeting the Judicial branch of government. needs of New Zealanders.”

Justice Fogarty said that he disagreed “strongly” with Justice Elias said that the commission’s contention that the proposals. The United Kingdom and New Zealand the general shape and reach of Judicial review must be Parliaments had never sought to replace the relevant authorised by Parliament in the light of current conditions common law jurisdiction with a statutory jurisdiction under and social requirements, in part because of costs and the control of Parliament. To do so would effect a significant delays in implementing significant government decisions, constitutional change in arrangements which had been in was contentious. There was not necessarily any correct place since the Act of Settlement.

2009 Annual Conference 11 - 13 September Wellington

continued over...

INSIDE THIS ISSUE Pg 1 - Judicial Review Proposals Spark Concern Pg 3 - President’s Report Pg 4 - Judicial Settlement Conferences Key in District Court Pg 6 - Practical Advice From Judges and Senior Counsel for Juniors Pg 8 - Bar Chat Pg 9 - What NZBA Members Need to Know Pg 9 - 2009 Council Meetings and Events Pg 10 - Upcoming Conferences Pg 12 - Networking and Raising Your Profile Pg 13 - New Barristers: Practice on Own Account What You Need to Know Pg 14 - Christchurch Celebrates NZBA’s 20th Anniversary Pg 16 - Professional Indemnity - Insurer Security Pg 17 - Introducing Our New Junior Barrister Representative, Joanne Verbiesen Pg 18 - Book Review Pg 19 - NZBA Council - Summary of Meeting Minutes Pg 20 - Discipline, Context and Timeframes

EDITOR Catriona MacLennan Tel: 0064 9 378 0964 Email: catmac@clear.net.nz EDITORIAL COMMITTEE Miriam Dean QC Convener Tel: 0064 9 377 8959 Email: miriam@barrists.co.nz Monique Pearson Tel: 0064 9 303 4515 Email: nzbar@nzbar.org.nz DESIGN & PRINT Amanda Brett, Kinetech Creative Tel: 0064 9 576 8393 Email: amanda@kinetechcreative.co.nz New Zealand Bar Association Tel: 0064 9 303 4515 Fax: 0064 9 303 4516 Email: nzbar@nzbar.org.nz Web: www. nzbar.org.nz P O Box 631 Auckland 1140 2

Judicial Review Proposals Spark Concern cont...

University of Canterbury Professor of Law, Philip Joseph, said that the commission should not engage in any review of the High Court’s jurisdiction to ensure that public decision-makers complied with laws circumscribing their powers. He said that the jurisdiction was inherent, not prescribed, and was an historical jurisdiction which could be traced to the origins of the royal law courts from the latter part of the twelfth century.

Codification would gravely impair the ability of the courts to discharge their functions with the subtlety and sensitivity required.

“It would, in my view, be misplaced and mischievous to tamper with the jurisdiction of the superior courts to uphold the rule of law. Parliament did not give to the superior courts their inherent jurisdiction, and it should not attempt to usurp it now through statutory codification.”

Professor Joseph said that the developments of the past 20 years had made it plain that Judicial review was inherently contextual and discretionary, and no abstract formula could capture the Judicial task when the courts weighed the many factors involved.

University of Otago Dean of Law, Professor Mark Henaghan, said that he shared all of Professor Joseph’s concerns. He said that the proposed removal of an inherent jurisdiction of the courts was a major recommendation and more time was required to consider it.

He concluded that the courts had developed reasonably predictable ways of carrying out Judicial review, there were no major problems with the current system, and codification was likely to create more problems than it solved. Whatever formula of words was used, it would still have to be interpreted by the courts, and the common law process would begin again.

Deputy Solicitor-General, Cheryl Gwyn, in a submission on behalf of Crown Law, expressed concern that uncertainty about Judicial review would be created by the commission’s proposals. She said that it was not clear to Crown Law that parliamentary definition of the

scope of Judicial review was likely to be superior to Judicial decisionmaking. The commission had said that it was not the intention to begin debate about the grounds on which a remedy was obtainable in a Judicial review action, but any attempt to suggest to Parliament that it amend the definition risked that very problem.

The New Zealand Law Society’s submission said that the scope of Judicial review should not be defined, and it should remain

“They do not justify the radical change entailed in excluding the inherent jurisdiction of the court to control abuse of power.” Chief Justice Dame Sian Elias flexible. The society said that it preferred the option of a simple statutory reference to Judicial review, with review itself remaining as a wide power to be exercised by the courts. Any attempt to define the scope of Judicial review might be a step backwards, and could give rise to technical arguments as to whether or not a particular decision fell within a definition. It was preferable to have a general power of Judicial review of any exercise of public power, said the society.

Barrister Frances Cooke QC expressed opposition to the proposed reforms, saying that the proposal that Judicial review be dependent on statutory recognition would represent a fundamental change to the constitutional role of the High Court. He said that, not only was there no justification for removing the High Court’s inherent powers of Judicial review, but there was little true appreciation of the constitutional significance of that step identified in the issues paper.

President’s Report The growth and development of the Association have continued as a result of the sterling work and guidance of Jim Farmer QC in his last two terms as President. The way in which the Association has matured is a signal tribute to him.

Mention is made elsewhere in the Newsletter of our insurance through Aon New Zealand Ltd. The Council is continuing to explore premium arrangements and terms and conditions with insurers, with a focus on providing the best cover for members.

In the three months since the Annual Meeting, work has continued apace. The following events warrant special mention.

Congratulations have been extended elsewhere in the Newsletter to those appointed as Senior Counsel in the initial round of appointments. The Committee required by the Regulations to recommend candidates for appointment to the Attorney General, comprised the Solicitor General, two representatives from our Association and two representatives from the New Zealand Law Society. Appointment by the Attorney General involves the concurrence of the Chief Justice. I need to say as diplomatically as I can that there were teething problems with the process arising out of guidelines by which the process was required to be conducted. I think it is fair to say that there was recognition on all sides that the guidelines need to be revisited and reconsidered.

The coming into force of the Lawyers and Conveyancers Act 2006 has heralded a much greater participation and recognition of the Association in the governance of the profession. The Association has a place on the Council of the New Zealand Law Society and the nature of the issues dealt with by the Society in the early days of the Act have seen participation in matters such as applications for exemption from the intervention rule and the formulation of requirements for practising certificates for new barristers.

Attention is drawn to the innovations introduced by the new Act. Members are encouraged to ensure that their practices meet some significantly different requirements from those under which we have practised up to now.

The issue of barristers’ training is a matter which has been, and will continue to be for some time, the subject of discussion with the Society.

The Association has taken the initiative to formulate a proposal for training as a precursor to obtaining a practising certificate as a barrister. The objective is for the Association to devise and run the programme but in association with and under the auspices of the Society.

Already, initiatives have been taken by the Association to develop and improve training methods. The recent training seminar entitled “Take the Lead and Shape your Future” is an illustration.

Our membership has climbed to 837 and there is a continuing drive for members. There have been for some time now approaches from categories of practitioners whose work is in litigation or is sympathetic with the objectives of the Association. A factor which must always be in the forefront of our thinking is that as an Association, what do we offer as a reason to belong? Our efforts to improve practical training are an illustration of an attraction to membership.

The narrative of what has been done leads to what is being done currently and where the path is leading.

There are continuing issues concerning the intervention rule and it is clear that it will be kept under review. Another continuing issue (but in a different category) is the training of barristers.

I have mentioned this already. Our focus is on junior barristers so that standards are set at an early stage and the training provides an example to others who practise at the Bar. In this respect, we are lucky to have the services again next year of Professor Jim Raymond who will conduct a workshop (or perhaps two). Members who attended the 2007 annual conference in Christchurch will recall Professor Raymond’s informative and entertaining session on “Legal Writing and Reasoning”. Arrangements will be notified in due course.

Another factor for us will be the approach of the new Government to the affairs of the profession. The enthusiasm of the new Attorney General will be pivotal in formulating policy affecting our practices.

One significant change for the Association and one which the Council

is building on is the development of international relationships. The policy began with the invitations we extended to some of our Australian neighbours to participate in our conferences. It has expanded significantly since then. We have met with the New South Wales Bar and the Australian Capital Territory Bar and they have had representatives at our meetings in New Zealand. We have met with the Australian Bar Association and participated in their conference at Chicago last year.

We have also participated with the American Bar Association at its Annual Meeting in New York in August this year.

These international initiatives have led to a significant number of invitations to participate internationally. There are many organs of the International Bar Association and we are now in regular receipt of correspondence from them about current events.

The growth of the Association has led to consideration of how to better organise the management and direction of the Association. The Council has had in place for some years now a committee structure to which much of the preparatory work is delegated. Last year, four Vice Presidents were appointed. This year provision was made in our Constitution for the appointment of a President Elect. The current structure raises the question as to how best to organise the Association. It is a topic which is currently under consideration. But plainly, a rationalisation of responsibility between the President, President Elect, Vice Presidents and Committees is desirable and will be the subject of discussion and decision by the Council in due course.

There are a number of other initiatives which are being progressed. Important among them are an equal briefing process which has been implemented in some States of Australia and which warrants careful consideration here to promote the skills and experience of all members of the Bar. Another initiative is to encourage and involve members of Criminal Bar Associations to participate either as members of our Association or in cooperation with us – a work in progress!

At the moment, the development of our IT infrastructure is being reviewed and continued over...

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President’s Report cont... will be upgraded significantly to cope with our current requirements. This leads me to encourage you to visit our website to keep up to date with what is happening in the Association. The events calendar is printed elsewhere in the Newsletter and the website will update that from time to time.

The Association’s 2009 annual conference will be held in Wellington.

The conference weekend will commence on Friday, 11 September and conclude on Sunday, 13 September. An event to look forward to and note (in principle for the moment)

is a proposal to hold our conference for 2010 in Hong Kong. The proposal is in its very early stages but Hong Kong has a number of attractions: there are a number of ex-pat New Zealanders there who have developed specialist skills; it is a venue attractive to Australians whom we want to encourage to participate in our conferences; and it is a jurisdiction which attracts senior members of the English Bar with specialist skills. It would be a challenge to organise an attractive and successful conference there!

there are thanks which are of prime importance. I convey my thanks to members of the Council for their work.

An enormous amount of effort goes into ensuring that the Association thrives. There has to be a very special mention of Monique Pearson, our Executive Director, for her work and her enthusiasm in promoting the Association. Much of our recent progress is the result of her efforts.

Although at the end of my report,

Colin Carruthers QC

Finally, I wish you all a very merry Christmas, a restful holiday and a prosperous New Year.

Judicial Settlement Conferences Key in District Court Major changes to District Court procedures will be ushered in when new District Courts Rules take effect on 1 November 2009. Judicial Settlement Conferences will become the norm in civil matters, with more than two-thirds of cases expected to be settled either prior to, or at, the conferences. Summary judgment will virtually vanish, and witness actions are also likely to decline. The changes are designed to streamline and speed up District Court processes.

Heaney & Co partner, Helen Rice, said that the new rules would make it essential for lawyers to hone their Judicial Settlement Conference skills.

Participating in the conferences at the first calls of cases would require a considerable adjustment for lawyers practising in the District Court. She predicted that cases would proceed more swiftly in future, meaning that practitioners would need to be more focused on the strengths and weaknesses of their clients’ positions.

Ms Rice said that the changes would make proceedings more cost effective, which was a good thing.

However, she said that the timing of conferences was critical to their success. If they were scheduled too early, parties might not be ready to participate meaningfully and the process could be a waste of time.

She said that she had reservations

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about the changes, and it remained to be seen whether or not the new procedures would successfully dispose of claims.

Part 2 of the new Rules sets out the general procedure for civil claims.

Rule 2.10 requires plaintiffs to begin proceedings by filing notices of claims and serving them on each defendant. The notices must give a succinct description of the facts justifying the plaintiff’s claim, contain a signed statement verifying the truth of the facts, and state the relief sought. Defendants are required to complete and serve responses on plaintiffs within 30 working days.

Responses must admit the claim and immediately pay or offer an alternative remedy, deny the claim, or partially admit and partially deny it. If the claim is challenged, details of the defendant’s version of the facts must be concisely stated.

Plaintiffs wishing to pursue claims after receiving a defendant’s response must complete information capsules and serve them on the defendant within 30 working days.

Information capsules are designed to inform the defendant of the essential nature of the plaintiff’s case, and disclose the information on which the plaintiff intends to rely.

They must rebut defences by identifying and addressing the

Ms Rice said that the changes would make proceedings more cost effective, which was a good thing. essential facts in dispute, as well as explaining why any offer made by the defendant has been rejected. The information capsule must also list the witnesses the plaintiff intends to call, and include “will say” statements for each witness. The essential documents supporting the plaintiff’s claim are required to be specified, and the contents of the capsule must be verified on oath or by affirmation.

Defendants then have 30 working days to complete and serve their own information capsules. Rule 2.14(4) provides that a plaintiff’s claim comes to an end if he or she does not serve the information capsule within 30 working days. Defendants who fail to serve their information capsules continued over...

will find that the plaintiff is entitled to proceed to judgment by default or judgment on formal proof.

Rule 2.7 provides that plaintiffs may apply to the court for orders granting leave to proceed by way of statements of claim, but in future this will be an exceptional process.

In deciding whether or not to grant leave, the court will take into account factors such as the amount of money involved, the importance of the case, complexity, urgency and the financial position of each party.

Rule 2.40 sets out the claim allocation procedure. Either the court or a Registrar will decide whether a claim should be allocated a short trial, a simplified trial or a full trial. In deciding which process is appropriate, the factors to be taken into account include the number of parties, complexity, the amount at stake, proportionality, and party requests.

Short trials are intended for claims which can proceed to hearing quickly, involve relatively uncomplicated issues or modest sums, and for which trial time is not likely to exceed a day.

The only pre-hearing steps permitted are those set out in Rule 2.44(2), and the only evidential statements required to be produced are the “will say” statements. Oral evidence is allowed, no bundles of documents are required, and there is no Judicial Settlement Conference.

The total time for the presentation of a party’s case must not exceed 40 minutes for examination of each witness, 20 minutes for crossexamination, 10 minutes for reexamination, and 30 minutes for submissions. However, the court has power to extend those time limits if there are good reasons for doing so.

Parties under Rule 2.46 may apply for review of a decision to allocate a short trial.

Rules 2.47 and 2.48 deal with Judicial Settlement Conferences for simplified and full trials, and interlocutory matters. Rule 2.47 states that the conferences must be convened by Judges and held in chambers. A Judge who convenes a conference may assist the parties in their negotiations, but must not preside at the trial unless all parties consent or the only matter for resolution is a question of law. If a Judge assisting the parties at a conference is satisfied that the parties are unable to settle

the claim or issue, the Judge must immediately advise that he or she has formed that view, and the conference becomes a Judicial directions conference. The Judge is then required to allocate a simplified or a full trial.

Rule 2.51 provides for simplified trial disclosure, stating that parties must give copies of documents to other parties and serve affidavits of evidence in chief at least 15 working days before the trial. Witnesses need appear at simplified trials only if parties have served notices to crossexamine, or the Judge so requests.

Rule 2.53 states that the total time for the presentation of a party’s case at a simplified trial must not exceed 50 minutes for cross-examination of each witness, 10 minutes for reexamination, and 30 minutes for submissions.

Annual Conference 2009 11 - 13 Septemeber Wellington

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Practical Advice From Judges and Senior Counsel for Juniors Take the Lead and Shape Your Future - A special seminar for junior/intermediate litigators Session 1: What does Senior Counsel look for in a junior counsel?

Litigation practice was hard work but satisfying and stimulating and the greatest fun was being in court, barrister Alan Galbraith QC told the New Zealand Bar Association seminar, Take the Lead and Shape your Future. The seminar, aimed at junior and intermediate practitioners, was held initially in July and was so popular that it was repeated again in October.

Mr Galbraith and barrister Gerard Curry spoke about what senior counsel looked for in junior counsel. Mr Galbraith said that the first major question of senior counsel was how much time would be required by the case, and when it would take place. A junior before the first meeting with senior counsel should accordingly prepare basic information in written form. The final goal of a junior was to get to court with senior counsel fully prepared, and with no nasty surprises likely. Junior counsel would do most of the back-breaking work, but should be clear from the start as to what involvement senior counsel wished to have. Mr Galbraith said that he liked to be involved in anything other than routine processes.

He said that he also wanted to see research and drafting no later than two-thirds of the way through, so that he could shape the case. Mr Galbraith said that junior and senior counsel should agree on the issues in the case, with these being able to be reduced to one – or at most two – sides of a piece of paper. He did not wish to know the basic details of discovery, but did want to know the “good, bad or ugly” of what was being revealed. In relation to fact briefs, Mr Galbraith said that junior counsel should remember that these were the witness’s story. They should be kept simple, and it should be borne in mind that they were not submissions.

He said that the common bundle should be prepared as early as possible and given to senior counsel to read. At the hearing, it was up to senior counsel to determine the role of a junior. However, juniors should not distract senior counsel when they were on their feet.

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Mr Curry said that it was absolutely critical that juniors initiated communication with senior counsel at an early point and in a collegial and co-operative way. Juniors should carry the burden of initiative and of being pro-active. A critical part of being fully prepared for trial was agreeing on timelines, and it was essential for juniors to adhere to those.

Mr Curry said that a clear statement of the client’s objectives should be obtained, and a complete chronology should be prepared at an early stage.

The essence both of one’s own and of one’s opponent’s case should be established, and the determinative issues to be dealt with at trial should be identified. He advised that the proceedings should be reassessed as they progressed, with counsel treating the case as a living battle requiring ongoing review.

Session 2: Advocacy skills Barristers Julian Miles QC and Jim Farmer QC discussed advocacy skills.

Mr Miles said that junior counsel should recognise that advocacy was all about persuasion. A sense of integrity was an integral part of every barrister’s armoury, and counsel should never mislead Judges, witnesses or the other side. He advised juniors to set out to satisfy every Judge before whom they appeared that they could be trusted.

Mr Miles said that he considered the most important task for a junior was mastering the facts. The theory of the case should be worked out, and it would then dictate the emphasis of written submissions. Advocates should make plain to the Judge the problems with their own case as well as highlighting weaknesses in the other party’s case. He advised that the opening address should be kept at a reasonably general level which allowed flexibility if subsequently a witness’s evidence did not support what was said in the opening. The power of an opening should never be underrated. If documents were significant, the importance of taking the Judge through them in the opening should not be underestimated.

Mr Miles said that counsel should not read from written submissions.

Advocates were there to persuade Judges, elucidating particular paragraphs and clarifying issues. He advised that, if Judges started asking questions, this should be embraced as it demonstrated that the Judge was interested. He concluded that counsel should not despair when they lost cases, as long as they were satisfied that they had done their best. Partial victories should not be despised.

Dr Farmer discussed cross-examination, stating that the immediate problem for young lawyers was how to obtain opportunities to develop crossexamination skills. A good way to learn was by going to court with experienced counsel, observing, and then being inquisitive about why particular questions had been asked. He said that counsel must decide at the outset what it was hoped to achieve in crossexamination. It should be remembered that not all cross-examination challenged the veracity or accuracy of the witness’s evidence. Some was designed to elicit helpful information.

Counsel should think carefully about when to be assertive, and when it would be more constructive to be friendly and beguiling.

Dr Farmer warned that it was totally pointless to write out questions or a series of questions to prepare for crossexamination. Instead, topics could be identified by headings, with bullet points for sub-headings. A rigid list of questions would destroy the key requirement of cross-examination, which was flexibility.

Three or four pages of handwritten notes could provide a basis, with constant revisions being made.

The most fundamental aspect of crossexamination, said Dr Farmer, was to listen to answers. He described the maxim that counsel should not ask questions to which they did not know the answer as “absolute nonsense.”

Advocates frequently had to do that. He said that open-ended questions should be asked cautiously. Instead, counsel should control witnesses by asking questions requiring short answers – known as “closing the gates.”

Session 3: Courtroom Etiquette Auckland High Court Judge, Justice Raynor Asher, and District Court Judge, Fred McElrea provided a stepby-step guide to the dos and don’ts of courtroom etiquette. Justice Asher said that etiquette was very important to practice. It provided a framework within which people in opposite and hostile positions could work in a common forum without altercation.

However, even more significantly, it assisted the administration of justice.

The court process worked because the court’s actions and rulings had absolute authority and participants were prepared to accept and believe in its absolute authority. This was particularly the case in criminal trials, which featured great anger and emotion. It was the perceived authority of the court which controlled human volatility.

Justice Asher said that the procedures were not designed to flatter the individual presiding Judge.

Rather, they demonstrated respect for the institution of the court. He said that courteous advocates who understood the rules of etiquette tended to be successful advocates.

Trust from the Bench was earned, and counsel who understood and observed the rules of etiquette were more likely to obtain that trust.

Judge McElrea emphasised the importance of conservative and respectful dress in court, as well as explaining the precedence which should be given to Queen’s Counsel and Senior Counsel in seating, and the need for counsel to be punctual. He said that counsel should stand when being addressed by a Judge or speaking to a Judge or seeking to object. Witnesses should be addressed or referred to respectfully, to maintain the distance essential to the administration of justice.

Lawyers should maintain complete silence while Judges were giving rulings. He said that Judges were inconsistent about exactly when counsel should bow, but lawyers should observe the Judge and be ready to bow. Judge McElrea said that the court should be able to rely on counsel, both as to evidence and to the law.

Advocates who made errors should be quick to correct them.

Session 4: Raising one’s profile The seminar concluded with presentations from three speakers about how to raise one’s profile and grow one’s networks. Barrister David

Bigio said that marketing and branding for barristers were fundamentally about reputation – primarily for competence and integrity. He said that practitioners needed to ask themselves what kinds of lawyers they wanted to be.

Specialisation could be good, but it could also be a trap if lawyers later discovered that they hated what they did but felt that it was too late to change to something else. A barrister’s specialisation, he said, was that of dispute resolution.

Mr Bigio said that barristers should

ask where they wanted to work. Were there chambers doing the types of work to which they aspired? Did a firm have the right profile to satisfy the practitioner’s initial interests?

He stressed the importance of networking, and said that other ways to make oneself known were by seminar presentation, contributing to loose leaf legal publications, or becoming involved with professional organisations.

Bell Gully partner, Simon Ladd, said that practitioners starting out and wanting to raise their profiles and establish networks frequently believed that they did not know anyone, did not know where to start, and did not have time to devote to this. However, he said that junior practitioners should target partners and senior lawyers in their firms, as well as existing clients.

It was not only new clients who should be the focus. Practitioners should consider contacts they had from university days or from other facets of their lives.

New clients were the most difficult to target, but he said that there was nothing to lose by approaching potential clients and asking what the practitioner would need to do in order to do work for them. Mr Ladd said that it was amazing how often such a cheeky or blunt approach was successful. He said that the quality of a practitioner’s work was critical, and

lawyers should not turn away work in their specialist areas.

Barrister Deborah Hollings QC said that building a practice should not be regarded as drudgery. Practitioners needed to regard themselves as entrepreneurs and realise that major benefits were to be derived from spending time on developing their practices. Doing a good job was crucial to building a practice and practitioners should realise that word about reputations spreads extremely quickly. Every court appearance was important, and practitioners should ensure that they appeared in court.

Ms Hollings said that practitioners should look for high-profiles cases, as these accelerated the process of becoming known. Z v Z had been the case which had done that for her. She said that legal aid and pro bono work should be considered, and practitioners should think not only about stating the law, but about whether they could argue what the law should be.

Ms Hollings said that counsel should never underestimate how important it was for people to like them. Congeniality with clients was important. If there was a problem with another lawyer, this should be sorted out as soon as possible. She said that she was a great believer in having a five year plan. If one door slammed shut, one needed to stand up, dust oneself off and climb in a window.

Image in terms of one’s chambers was very important, as was recognition of where one’s strengths lay.

She said that women had traditionally not been regarded as authoritative, and for that reason professional dress was particularly important for women. Timing was critical in combining a career with family, and female practitioners should never underestimate how much having children would change their lives. It was important to go home and see children at the end of the day, and perhaps return to the office once they were in bed.

Ms Hollings said that practitioners should not be afraid of the media.

Journalists were not the enemy and could be used as part of the process of profile-building. However, lawyers should not do media interviews unless they knew they were good at this, and should not say anything they did not want reported.

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BAR CHAT Appointment of Senior Counsel

Thank you

The Bar Association offers its warmest congratulations to

The Council wishes to thank Catriona MacLennan for all her assistance these past few years as Editor of the Association’s newsletter. The Council has been very grateful for her hard work.

The Rt Hon Sir Geoffrey Palmer David Heaney Murray Gilbert Jan McCartney Jack Hodder Simon Moore Christine Gordon on their call to the Inner Bar. The Association will hold a special dinner in Auckland early in 2009 to acknowledge the new appointments.

Members will receive an invitation by email in due course.

New Bar Association members The Bar Association welcomes the following new members to the independent bar and/or the Association: AUCKLAND & NORTHLAND: Alan Gluestein; Cheryl Kelly; Graeme Minchin; Jonathan Down; Lisa Gerrard; Peter Webb; Sean Quinn; Suzie Abdale; Toni Nelson; Victoria Letele WAIKATO & BOP: Phillip Drumond; Richard Jerram; Roger Clark; Simon Travers WELLINGTON: Elizabeth Medeiros CHRISTCHURCH: Alexandra Beaumont; Duncan Currie; Marcus Elliott OTAGO: Tina Williams ASSOCIATE MEMBER: Hayley Derrick, Judges’ Clerk Auckland High Court

The New Zealand Bar Association welcomes the newly formed Independent Afghan Bar Association The President of the New Zealand Bar Association, Colin Carruthers QC, recently welcomed the world’s newest Bar Association, the Independent Afghan Bar Association, to the global profession.

In his correspondence to Mr Qarizada, President of the Afghan Bar, Mr Carruthers affirmed the need to promote the independence of the Bar and its role in ensuring the integrity of the Judiciary.

Mr Carruthers also acknowledged the International Bar Association for the way in which it had supported the Afghan Bar Association to achieve this historic outcome.

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Bar Office Christmas Closure Please note that the office of the New Zealand Bar Association will be closed from noon on Tuesday 23 December until Monday 19 January 2009.

Important notice to members who are interested in practising in New South Wales Members who attended the NZ Bar Association conference in Sydney will recall the session on how to develop an international practice with particular reference to transTasman legal practice.

New South Wales Bar Association Executive Director, Philip Selth OAM, outlined the procedure for New Zealand barristers seeking registration as barristers in New South Wales under the Trans-Tasman Mutual Recognition Act. What is important to note about the admission regime is that New Zealand barristers are not able to practise in New South Wales unless they hold professional indemnity insurance complying with the Legal Profession Act 2004.

For New Zealand barristers wishing to develop a transTasman practice, this means having to carry two professional indemnity policies.

Mr Selth has said he would be prepared to ask the AttorneyGeneral to approve a New Zealand policy if there were enough New Zealand barristers wishing to hold New South Wales’ practising certificates. A lot of work is involved in the approval process and all of whom are involved in the process would prefer to go to the time and expense for more than just one or two barristers.

The NZ Bar Association is inviting members who are interested in practising in New South Wales to contact Monique Pearson at nzbar@nzbar.org.nz without delay. The Association will then collate a list of interested barristers and enter into negotiations with Mr Selth on their behalf.

What NZBA Members need to know 2009 Council Committees The Council would like to acknowledge its appreciation of those members of the Association who have assisted it this past year in preparing submissions to the Rules Committee and other similar bodies on various proposed rules and regulations.

Those members who are interested in assisting a particular committee should contact Monique Pearson.

Annual conference

T Sissons (convenor), J Eaton, K Davenport

NZBA Rules

K Johnston (convenor), J Eaton, E Hudson

Barristers’ training

C Gudsell QC (convenor), C Carruthers QC, S Mills QC, T Sissons, J Verbiesen

NZLS Rules

T Hughes-Johnson QC (convenor), C Gudsell QC, S Mills QC, T Sissons

Equal briefing

C Carruthers QC (convenor), C Gudsell QC, K Davenport

Review of legislation

E Hudson (convenor), C Carruthers QC, T Hughes-Johnson QC, S Mills QC, K Johnston

International liaison

C Carruthers QC (convenor), J Eaton

Mentoring scheme

M Dean QC (convenor), S Mills QC, K Davenport, J Verbiesen

Rules sub-committee

S Mills QC (convenor), E Hudson, A Rogers, G Kohler, J Matthews, J Verbiesen

Newsletter committee

M Dean QC (convenor), C MacLennan (editor), J Matthews, G Kohler

Seminars/workshops

M Dean QC (convenor), J Eaton, T Sissons, J Matthews, G Kohler, A Rogers, J Verbiesen

2009 Council Meetings and Events DATE

EVENT

VENUE

February – TBC

Senior Counsel dinner

Auckland

26 February

Council Meeting

Auckland

05 March

“Take the Lead & Shape Your Future” A half-day seminar aimed at junior/intermediate litigators

Wellington

March – TBC

“Take the Lead & Shape Your Future” A half-day seminar aimed at junior/intermediate litigators

Christchurch

30 April

Bench & Bar dinner

Christchurch

01 May

Council Meeting

Christchurch

May – TBC

“Criminal Law Update” A half-day seminar with Professor Brookbanks

Auckland

25 June

Council Meeting

Video Conference

27 July 29 July

“Legal Writing and Reasoning” with Professor James C Raymond A half-day seminar aimed at junior/intermediate litigators

Auckland Wellington

28 July 30 July

“Legal Writing and Reasoning” with Professor James C Raymond A full-day intensive workshop aimed at senior litigators (limited numbers)

Auckland Wellington

23-29 August

NZLS Litigation Skills Course (two NZBA scholarships available)

Christchurch

11-13 September

NZBA Annual Conference

Wellington

01 October

Council Meeting

Wellington

03 December

Council Meeting

Auckland

9

UPCOMING CONFERENCES Effective Judicial Review: A cornerstone of good governance 10 – 12 December 2008 The School of Law of the Chinese University of Hong Kong and the Centre for Public Law at the University of Cambridge are pleased to announce their joint conference. The conference will provide an opportunity to discuss key issues relating to Judicial review across a number of jurisdictions.

Speakers include Judges, government officials, practitioners and academics from various jurisdictions. A full list of speakers is available on their website http://jointconference.law.cuhk.edu.hk/poster.html.

The conference will take place in Hong Kong. To register, visit http://jointconference.law.cuhk.edu.hk/reg.php

ABA Residential Trial Advocacy Course 19 – 23 January 2009 Organisers of the third ABA Residential Trial Advocacy Course, to be held from 19-23 January 2009, have assembled a faculty of leading national and international advocacy coaches, such as Edwin Glasgow QC. The course will be held at the Macquarie Graduate School of Management (MGSM), North Ryde.

Places in the course are limited to barristers with seniority of at least two years at the private Bar. The course is designed for experienced advocates who wish to take that next step in their professional development.

For more information contact Chris D’Aeth cdaeth@nswbar.asn.au

Highly successful seminar “Take the Lead and Shape Your Future” to be held in Wellington The Association will run its successful seminar – Take the Lead and Shape Your Future – in Wellington on 5 March 2009 from 1:30pm – 6:30pm.

The seminar is an excellent opportunity for junior/intermediate litigators to hear from leaders at the bar and will feature presentations from Justice Tony Randerson; Judge Jan Kelly; Jim Farmer QC; Colin Carruthers QC; David Goddard QC, Anne Stevens and Jack Hodder The seminar will commence at 1:30pm and will be followed by an informal drinks function, hosted by the Association.

The cost of the seminar for members of the New Zealand and Criminal Bar Associations is $155 inclusive of GST. Places will be limited and interested parties should contact Monique Pearson at nzbar@nzbar.org.nz without delay.

The Australian Bar Association Conference 26 June – 1 July 2009 Expressions of interest are now being taken for the Australian Bar Association Conference to be held in Strasbourg and London between 26 June and 1 July 2009.

The conference will commence in Strasbourg on Friday, 26 June for a full day session in the Grand Chamber of the European Court of Human Rights. The London component will commence on the evening of Sunday, 28 June and conclude with a Gala Dinner at Lincoln’s Inn on Wednesday, 1 July 2009. The London business sessions will be held at the Mayfair Hotel.

The names of those interested will be placed on a Priority List to receive a registration brochure prior to any general mail out.

Please send your full contact details to Dan O’Connor at the email address listed below or by facsimile.

Dan O’Connor, ABA Conference Secretariat, mail@austbar.asn.au or fax (07) 3236 1180

Annual Conference 2009 11 September – 13 September 2009, Wellington Members, mark your diaries now!

Further details to follow.

10

UPCOMING CONFERENCES NZLS | CLE NZLS Continuing Legal Education has a number of programmes that might be of particular interest to our members:

Standard Seminars – 1:00pm to 5:00pm Electronic Discovery Laura O’Gorman

Daniel Ayers

Drafting Better Court Documents David Goddard QC

Bringing a Case to Trial Using the High Court Rules Sarah Katz

Graeme Hall

Christchurch - 31 March Wellington - 1 April Auckland - 2 April Christchurch - 12 May Wellington - 13 May Auckland - 18 May Hamilton - 19 May Christchurch - 8 June (tbc) Wellington - 9 June (tbc) Auckland - 10 June (tbc) Video Conference - 11 June (tbc)

Entry level workshops Introduction to Criminal Law Noel Sainsbury

Christchurch - 23,24 March Wellington - 26,27 March Auckland - 30,31 March

Workshops Lawyer as Negotiator Jane Chart

Wellington - 29,30 April Auckland - 12,13 May Christchurch - 8,9 June Wellington - 2,3 November Auckland - 11,12 November

Advocacy Programmes Advanced Litigation Skills Les Taylor Litigation Skills Susan Hughes QC

Wellington - 14-18 June Christchurch - 23-29 August (Lincoln University)

Visit the NZLS CLE website for further information at www.lawyerseducation.co.nz

10

11

Professor Raymond on The Art of Written Persuasion The Council continues with its commitment to the training and education of the bar – both at the independent bar and in the firms.

Following on the heels of the very successful “Take The Lead and Shape Your Future” seminar for junior and intermediate barristers, the Council is looking to hold a series of seminars late July 2009 with Professor Jim Raymond, who is a North American academic who lectures on legal writing all over the world. In particular, Professor Raymond works with Judges in New Zealand on judgment writing.

The seminars are designed to help us to understand how Judges seek to write their judgments so that our written submissions can be tailored more accurately to Judges’ requirements. The Council has little doubt that all litigators – from the junior to most senior – will benefit from hearing the Professor on this

most important part of a barrister’s practice.

At this stage the Council is planning on two seminars – possibly repeated in Wellington as well. The first will be a half day seminar for junior/ intermediate litigators with Professor Raymond passing on a number of tips – and particularly drawing on tips from Judges in different jurisdictions – as to how junior/intermediate litigators should frame and write their submissions. As Professor Raymond says, Judges crave lawyers who make things easy for them. Professor Raymond will teach the junior/ intermediate litigators his American “shotgun house” approach to submissions, ie that the introduction is the front porch, issue 1 is the first room, issue two the second room, other issues follow and the back door is the conclusion.

The second is a one day intensive workshop for senior litigators.

This will be a hands on workshop and should not be missed by litigators regularly appearing in the courts. Professor Raymond will take participants through his five step process for building submissions.

He will draw heavily on his work with the New Zealand Judges in terms of how they write their judgments – so that our written submissions can indeed meet their requirements and hopefully in that way be the winning submission.

Professor Raymond spoke to the New Zealand Bar Association Conference in 2007 on this topic but only in very general terms. The feedback was very positive – the Professor was an informative and entertaining speaker with much to teach us.

These are seminars not to be missed.

See the Association’s 2009 calendar at page 9 of the Newsletter and mark your diaries now.

Networking and Raising Your Profile Tips from Deborah Hollings QC, Simon Ladd and David Bigio Take the Lead and Shape Your Future - (continued from Page 7) * Research the market to find specialist chambers doing work you want to do.

* Arrange regular lunches with practitioners and other contacts.

* Seize opportunities to appear in court and in any tribunals. Every appearance counts.

* Network with clients whenever opportunities arise.

* Look for high-profile cases to build your reputation. If a case is not high-profile, can you make it high-profile? * Build personal relationships with clients and ring other practitioners to resolve speedily problems which arise. * Prepare a five-year career plan and tailor it to your strengths. * Think carefully about which chambers you join – the image of a set of chambers is very important.

* Present at seminars. * Write articles both for legal and non-legal publications. * Comment in the media if issues within your area of expertise arise. * Think about university acquaintances and contacts from other areas of your life who may be useful to your professional life, either as potential clients or in raising your profile. * Never turn away work in your specialist area.

* Attend as many functions as possible to network – drinks after work, seminars, professional Association meetings.

* During quiet periods at work, use the time to network by meeting clients for coffee.

* Consider using advertising and cold calling to raise your profile.

* Don’t underestimate how successful the cheeky approach can be – ring clients you want to work for and ask them what it would take for you to obtain their work.

12

New Barristers: Practice on Own Account What You Need to Know On 19 September 2008 the NZLS Board put in place an interim process and criteria for dealing with applications for a practising certificate as a barrister where the applicant had not practised in that capacity before.

The information below sets out the new process and criteria:

Starting Practice as a Barrister If you apply for a practising certificate as a barrister and: - you have not practised as a barrister on own account before in New Zealand or Australia*; and - you intend to practise on your own account (that is, not as an employee of another barrister) you will need to meet new criteria.

Under s.30(1) (a) of the Lawyers and Conveyancers Act and R.12 of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008** the Council of the Law Society must be satisfied that a lawyer wishing to commence practise on his or her own account as a barrister sole is a suitable person to do so, having regard to:

The interim process and criteria will apply to all applications from intending new barristers on own account where no practising certificate had been issued as at Friday 19.9.08 and all applications received after that date.

Process

The “Application for a Practising Certificate” has been amended to reflect the change. The new version is on the Society’s website at www. lawsociety.org.nz. Please use that version if it applies.

Applications in this category will be dealt with administratively by the Society’s Registry, with any applications in which issues arise being referred to the Society’s Fitness to Practise Committee for determination.

Criteria

(a) Experience – applicants must have had at least 6 months’ relevant experience in New Zealand within the last 8 years, being: - legal work in the office of a lawyer in sole practice, a partnership of lawyers, or an

incorporated law firm; - legal work in the office of a barrister sole; - legal work in a State service; - legal work in a local authority; - legal work as an employee of a company or other body; - full time teaching in a university, or - as an MP. This may include legal work undertaken pre-admission. (b) Fields of law – applicants must state the fields of law in which they wish to practise, with supporting information on their ability to do so, such as practical experience, their academic record showing passes in related subjects, or successful completion of a relevant course such as the duty solicitor course. * special rules for Australian lawyers are set out in R.15 of the Practice Rules. ** there is also a requirement under s.31(3), that where more than 10 years have elapsed since a lawyer last practised as a barrister on own account he or she is not entitled to do so again until he or she has received adequate instruction to the satisfaction of the Council in the duties of a barrister. In the interim, applications in this category will be dealt with on a case-by-case basis.

As supplied by the New Zealand Law Society - 25.9.08

PROfiLE

- the lawyer’s legal experience; and - the fields of law in which the lawyer intends to practise; and - any other matters that the Council considers are relevant.

In the longer term the Society, in discussion with the NZ Bar Association, is examining the setting of detailed criteria. In the meantime, however, the Society’s Board, on 19.9.08, established an interim process and criteria.

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13

Christchurch Celebrates NZBA’s 20th Anniversary New Zealand’s independent bar was blossoming but remained vulnerable to a range of factors, New Zealand Bar Association Christchurch vicepresident, Jonathan Eaton, told a Canterbury function marking the Association’s 20th anniversary. Mr Eaton congratulated Christchurch barrister and Association member Raoul Neave on his appointment to the District Court bench, and said he hoped that Judge Neave would see fit to continue his ties with the Association. He also welcomed Justice French to Christchurch on behalf of the local bar, saying that the city was extremely well served by the quality of its High Court bench.

Mr Eaton acknowledged the contributions made in recent years by Council members Chris McVeigh QC, John Matthews, Nicholas Till QC and Tony Hughes-Johnson QC. He said that he liked to think that the effort made by Canterbury-based Council members was reflected in the fact that the region had the highest ratio in the country of members to persons practising at the independent bar.

Mr Eaton noted that the Association had recently held its first international conference, which took place in Sydney. He said that this marked one of the more significant developments within the Association in the past few years: the very close relationships developed with each of the state bars of Australia and with the Australian Bar Association itself. It had been helpful to take advantage of Australian experience in dealing with important issues impacting on practice at the independent bar.

The Lawyers and Conveyancers Act had forced change on the legal profession and, while the new conduct and client care rules had preserved the intervention rule in the meantime, that vexed issue would shortly need to be reviewed. Mr Eaton said that new minimum standards prescribed before people could practise as barristers sole were expected to be accompanied by mandatory compulsory legal education.

Members of the middle and senior bar would also have responsibility

14

for engaging in a form of pupillage scheme.

In anticipation of its role in training new barristers, he said that the Association had organised a seminar for junior and intermediate litigators in Auckland in July. The seminar’s 120 places had been fully subscribed within five days, and there was a waiting list of a further 50 lawyers.

[Since this speech the seminar has been repeated in Auckland. See pages 6 - 7]. The seminar was expected to be repeated in Christchurch early in 2009. Mr Eaton said that it was one of several initiatives being taken by the Association to ensure a leadership role in controlling who was able to practise and, indeed, continue to practise, at the independent bar. He congratulated Douglas Brown on being one of two recipients of an NZBA scholarship to attend the NZLS Litigation Skills Programme.

“Members of the middle and senior bar would also have responsibility for engaging in a form of pupillage scheme.”

Mr Eaton said that membership of the Association was growing at an extraordinary rate, with numbers swelling from 168 five years ago, to 825 today. That growth had been reflected in a far more formal structure being employed to administer the bar. Executive Director Monique Pearson did an outstanding job with the Association operating out of smart offices in Queen Street, Auckland.

Mr Eaton said that Council meetings were held around the country and regularly attended by the Chief High Court Judge. The ongoing influence of the Association had been recognised by the conferring on it of a right of appointment of one Council member to the newly-constituted New Zealand Law Society. He paid tribute to the massive contribution made by former

president Jim Farmer QC, and said that the profession now looked to bed in under the new regime and with Colin Carruthers QC at the helm.

On a serious note, Mr Eaton said that listening to the closing address at the Sydney conference by New South Wales Bar Association president, Anna Katzman SC, had starkly brought home to him the significance of the issue of depression in respect of the legal profession. He said that law had scored the worst of the professions for depression in an Australian survey carried out in 2007. Almost 16 per cent of the lawyers who responded had moderate or severe symptoms of depression, and nearly a third had used alcohol or other drugs to deal with the problem. A survey conducted by the Australian Financial Review had revealed that 45 per cent of young lawyers were thinking about quitting their jobs within the next two years.

Mr Eaton said that a survey of professions conducted in Boston, Massachusetts, had ranked lawyers top for depression, while a study of 1000 young New Zealanders carried out in Dunedin had concluded that work stress appeared to precipitate diagnosable depression and anxiety in previously-healthy young workers. He said that the statistics, while alarming, were probably not surprising. Barristers too often struggled with stress both in their professional and personal lives without seeking proper assistance.

Struggles were seen as a symbol of failings, and it was regarded as a sign of weakness to admit to needing help.

Mr Eaton said that he saw it as a very important aspect of future development of the profession that strategies were developed to allow such issues to be discussed openly. The notion that asking for help was a sign of weakness needed to be destroyed, and mechanisms must be put in place to provide tangible assistance. In order to survive as a profession, lawyers must learn to look after themselves. The New South Wales Bar Association had implemented some quite extraordinary measures, including yoga classes in the bar common room.

Professor Joseph and Peter Dyhrberg

Chris McVeagh QC, Rob Osborne and Nigel Hampton QC

Judge Lynch, Judge McMeeken and Malcolm Wallace

Judge Neave, Simon Shamy and James Rapley

Justices French and Chisholm

Judge Lynch, Jonathan Eaton and his PA, Helen Coutts.

14

15

NZBA Participates in High Court Meetings The Chief High Court Judge regularly holds meetings with “external agencies” that interact with the Courts. The meetings enable the Chief High Court Judge to report on developments within the Court system and obtain feedback from participants.

The agencies involved in the meetings include the Department of Corrections, Legal Services Agency, Forensic Section of ESR, New Zealand Law Society, New Zealand Bar Association, Ministry of Justice, Office of the Chief High Court Judge and Higher Courts Department of the Ministry of Justice, Police Prosecutions Service and Crown Law Office.

The minutes of the meetings are now on the Bar Association’s website so that members can see for themselves the sort of topics which are discussed and reported on. Some of the recent topics are particularly relevant to our members as they deal with evidence recording, video conferencing, review of the High Court rules, a fast-track pilot for civil claims, a proposal for Court ordered settlement conferences utilising private mediators and legislation dealing with sentencing, juries and ESR issues.

Justice Tipping also chairs a small group that is monitoring the Evidence Act with the intention of referring issues needing review to the Law Commission. One issue that has cropped up relates to the admissibility of recent complaint evidence under the Evidence Act. Another issue is the requirements in relation to evidential interviews of children. If any member has experience of these issues or any other issues in relation to the Evidence Act in practice that you would like to raise with either Justice Tipping’s group or at a Chief High Court Judge’s meeting please let Monique know so that the issue can be passed on.

Alternatively feel free to address the issue directly to Justice Tipping.

If any member has any concerns about the workings of the Higher Courts in particular in relation to evidence, obtaining fixtures or settlement conferences or the like please let Monique know so that these issues can be looked into and taken up with the Chief High Court Judge.

Terry Sissons, Vice-President - Wellington

16

Professional Indemnity Insurer Security In all likelihood members will be aware of the recently published news of the difficulties of American International Group (AIG) the parent company of American Home Assurance Company.

The latter company subscribes as a minority co-insurer to 17.50% of the Professional Indemnity insurance policy that is currently offered to members by AON New Zealand Limited.

per annum versus LIBOR plus 8.5% per annum) and will have to be repaid in five years instead of over two years.

On 16 September 2008 the Federal Reserve Bank New York (FRBNY) confirmed a loan of US$85 billion to assist AIG to meet its obligations as they become due. The action of the Federal Reserve allows AIG to continue to trade as an insurance company and to provide an acceptable level of security to policy holders. Subsequently the Federal Reserve confirmed a further loan of US$37.8 billion.

AIG has a current Standard & Poors rating of “A+ Credit Watch – Negative”. This grading is within the grading range considered acceptable

by Aon. As the policies of individual members become due for renewal members will be given the option of selecting an alternative insurer placement programme.

On 10 November 2008 AIG announced it had come to an agreement with Treasury and FRBNY. Under the agreement, Treasury will invest $40 billion in preferred shares of AIG through the Troubled Asset Relief Program.

FRBNY will also set up two new lending facilities to protect AIG from further losses on a lot of its exposures to collateralized debt obligations and mortgage backed securities.

The $40 billion investment will pay down the Federal Reserve’s original US$85 billion bridge loan extended to AIG in September to save the company from bankruptcy. A new US$60 billion Fed loan will have a lower interest rate (LIBOR plus 3.0%

While this action can be considered as providing relief to policy holders, it is important that members are given the opportunity to consider the underwriter security of the policy placement based upon updated information as it comes to hand.

Members are advised that it is possible to re-allocate 100.00% of the policy risk with the remaining coinsurers to the policy. A change in the structure of the co-insurance schedule does require a written instruction.

Members are invited to complete the attached form if a change as described above is required. Those members satisfied with the current arrangement need take no further action.

Insured members are invited to contact Aon New Zealand Ltd if further information is required. The Aon contact for New Zealand Bar Association members is John Martin.

The contact phone number is 04 819 4000. Email is john.martin@aon.co.nz.

John Martin, AON

Professional Indemnity and Companion Liability Insurances for members of the New Zealand Bar Association To Aon New Zealand Limited P O Box 2517, WELLINGTON 6140 Please restructure my current Professional Indemnity and Companion Liability insurance programme to record the insurance placement as being co-insured on the following basis; QBE Insurance (International) Ltd

50.00% (lead)

Vero Liability Insurance Limited

30.00%

IAG New Zealand Limited

20.00%

SIGNED: NAME:

DATE:

Introducing Our New Junior Barrister Representative, Joanne Verbiesen I am the new junior barrister representative for the NZBA, replacing, but undoubtedly not filling the shoes of, Lauren Lindsay, who I believe is revelling in Florentine culture as I write.

I hasten to add that the reference to my inability to fill Lauren’s shoes is not to be taken as suggesting she has big feet or that mine are particularly petite (although actually they are).

Rather it is meant to acknowledge Lauren’s huge dedication to the position and correspondingly lower everyone’s expectations regarding my performance as the junior barrister representative.

Now ‘junior barrister representative’ is a mouthful, but the apparently common shorthand for junior barrister (a ‘jube’) caused some consternation last month at my first ever NZBA Council meeting. I vaguely recall it was seen by some as a little demeaning. As a result I have spent the last month puzzling over an alternative. I am most commonly referred to as a baby barrister so my first thought was perhaps some abbreviation of that. Quite frankly though baby barrister sounds more demeaning than jube and the only abbreviated options that sprung to mind were ‘babe’ and ‘baba’.

My second thought was that I could be the ‘JC rep’. Since we are welcoming in the era of the ‘SC’ I thought ‘JC’ was due a boost in usage. On further consideration though I am not sure we can claim exclusive use of the term junior counsel since even the SC title is no longer restricted to members of the bar. If anyone else has a bright idea let me know, otherwise the jubes rep I am.

As this is my first introduction, I will briefly provide some personal details: I am Auckland born and bred, but moved to Wellington for a reprieve from the traffic 10 years ago and never made my way back north. I joined the bar in September 2007 when I started at Stout Street Chambers in Wellington. I practise mainly civil but will give almost anything a go.

16 14

My first year as a barrister was a busy period of professional selfimprovement. Most recently this year I attended the NZLS Litigation Skills boot camp. I strongly recommend this ordeal to all members of the junior bar because what doesn’t kill you only makes you stronger; the food is great; and the experience is invaluable.

Previous attendees repeatedly gave me two pieces of advice: DO read all the material BEFORE you go and do NOT spend all your time at the bar (the drinking sort as opposed to the legal one). The first piece of advice is immeasurably good advice but chances are, like me, you won’t heed either.

I also advocate applying for the NZBA scholarship for the Litigation Skills programme. The NZBA pays the course fee for two very lucky junior barristers to attend the course and let’s face it, the course fee is pretty significant for most jubes who do not have the big firm luxury of professional development funds.

I also decided to allocate some of my personal 2008 professional development fund (aka my income tax savings account) to attending the Take the Lead and Shape Your Future seminar organised by the NZBA for junior/intermediate litigators in Auckland earlier this year. I have to say this was worth every cent of the money spent that I should be paying to the IRD in provisional tax. The presenters were incredibly entertaining and informative. The information presented was very relevant to jubes, particularly the sessions on marketing yourself as a barrister. The only negative in my view was that there appeared to be hardly any jubes there. The packed room was heavily dominated by junior litigators from the firms.

NZBA has already put on another Take the Lead and Shape Your Future seminar in Auckland, which I hope was better subscribed by the junior bar. Meanwhile, there are plans to run the seminar in Wellington and Christchurch early next year.

I strongly encourage everyone to attend. If you want to attend but can’t afford the course fee upfront, contact Monique Pearson and arrange a payment plan because it is well worth begging, borrowing or stealing to make this event.

To end my first appearance in this newletter, I want to say that one of my major goals as jube representative is to inject as much collegiality as possible into the junior bar. I think this is really important because otherwise the bar can seem like a bit of an old boys club.

For obvious reasons I can’t achieve collegiality on my own because that would just be a very sad one person party. Like United Future. So, I am going to need your help. If you have any ideas, questions, comments or suggestions about anything relating to the junior bar, or if you just want to say hi, please flick me an email or give me a call. If you want to help out in any way, perhaps by being a point of contact for the junior bar in Auckland or Christchurch or any other centre, your help would also be much appreciated.

Email: joanne.verbiesen@stoutstreet.co.nz Phone: (04) 9171083

17

Book Review: A Lawyer’s Tale, Sir Duncan McMullin A Lawyer’s Tale, Sir Duncan McMullin (published, November 2008) Sir Duncan McMullin has performed the legal profession a service by writing this book. First, because it is of great interest to follow the career of a distinguished lawyer and Judge and to obtain the benefit of his insights into the legal system based on personal experience. Secondly, because it provides a record, in what is now a rapidly changing practising and Judicial environment where change is not always for the best, of how things were done in the past.

What is striking about Sir Duncan’s account of his time as a practising lawyer, initially as a partner in a Hamilton law firm and then later as a barrister at the independent bar, is how varied a practice he had. He both prosecuted and defended people on criminal charges (including two murder trials) and acted across the board in civil litigation. He appeared before juries and Judges sitting alone.

He was therefore in the true sense an all round lawyer, a type of lawyer that is a dying breed in today’s world of subject specialisation. There can be no doubt that this explains the practical wisdom that he later exhibited in his judgments as a Judge of the Supreme (High) Court and of the Court of Appeal.

He practised as a barrister sole after leaving his firm for five years from 1965 to 1970 when he was invited by the Chief Justice to consider applying for silk. Before he had done so, this suggestion was superseded by an invitation to become a Supreme Court (now High Court) Judge. This he accepted at the age of 43. Nine years later he was elevated to the Court of Appeal, where he sat until his retirement from the Bench in 1989 at the age of 61.

Retirement from the Bench did not, however, mean retirement from all legal activity. Over the next 14 years, he was actively involved in arbitrations and mediations, in chairing commissions of inquiry and

16 18

other governmental bodies including (to mention but one) the Market Surveillance Committee of the New Zealand Electricity Market. He sat also as a Judge on the Cook Islands Court of Appeal. Perhaps most significantly, he chaired the Royal Commission on Abortion, Sterilisation and Contraception which reported in March 1977.

His book provides much of the detail of his career as a practising lawyer and Judge with fascinating accounts of many of the more notable cases in which he was involved either as lawyer or as Judge. Specifically, he has singled out for detailed discussion what he calls “some interesting cases”, most of which are criminal.

One case that does receive more attention than any is Erebus, in which he sat on the Court of Appeal which heard the challenge by way of Judicial review to certain conclusions relating to the conduct of Air New Zealand and some of its officers drawn by Justice Peter Mahon. Mahon had been appointed as a Commission of Inquiry into the crash of the Air New Zealand DC10 into Mt Erebus in the Antarctic.

The ruling of the Court of Appeal setting aside those conclusions was later upheld by the Privy Council.

Following a public scrap between Mahon and Prime Minister Robert Muldoon consequential on that Judgment, Mahon chose to resign from the Bench. He later claimed that McMullin and Sir Owen Woodhouse had failed to disclose the fact that each of them had children who worked for Air New Zealand, a claim that in McMullin’s case is strongly denied in the book, with particulars being given.

This book should be mandatory reading for the younger generation of lawyers in particular. What it will demonstrate to them is a legal career characterised by integrity above all else. It will also show that there was a time when a good lawyer could apply his or her skills to a wide range of matters, both civil and criminal.

That ability then transferred to the role of the lawyer as Judge. In this

latter respect, it is relevant to note that during Sir Duncan’s tenure as a Judge, the number of High Court and other superior Judges was probably less than half of what it is today.

That, of course, placed the need for generalist Judges who could turn their hand to anything at a premium. And, by virtue of his broad experience as a practising lawyer, McMullin was better qualified than most to perform that role.

In an interesting section of the book called “Musings”, Sir Duncan himself comments on the fact that during his time as a practitioner lawyers were generalists and that specialisation has grown since. He also expresses his concern at the fact that, with the abandonment of the “swings and roundabouts” approach, fees today do not fit the case and the amount at stake with the result that many would-be litigants are not able to have access to the courts.

He comments favourably on the development of mediation and records that he undertook a mediator’s course and, with his wife, was also personally involved in a mediation with an excellent outcome. He deprecates the growing practice of lawyers commenting on their clients’ cases in the media and says, rightly enough: “There is only one place for advocacy.

That is the courts, where arguments can be advanced and scrutinised by the Judge and opposing counsel.”

What comes through in the book is his love of the law and his love for New Zealand. It is a book that repays reading, if for no other reason, than for an affirmation of traditional values, values that in the modern legal system are increasingly under threat.

Jim Farmer QC Sir Duncan McMullin is an Honorary Member of the New Zealand Bar Association. His book, A Lawyer’s Tale, is due to be launched at ADLS on Tuesday, 2 December 2008.

2008-2009 Council contact details

NZBA Council - Summary of Meeting Minutes The Council held a pre-conference meeting on Friday, 15 August at the Amora Hotel in Sydney.

In attendance were Jim Farmer QC, Colin Carruthers QC, Miriam Dean QC, Stephen Mills QC, Chris Gudsell QC, Trevor Shiels, Kate Davenport, Jonathon Eaton, Elliot Hudson, Terry Sissons, Ken Johnston, Matthew Ward-Johnson. Apologies were received from David Bigio whose flight was delayed and Tony Hughes-Johnson QC. Ken Johnston reported on the Association’s financial position. [A full report of the 2008 financial records was given at the Annual General Meeting].

Monique Pearson noted that membership figures continued to increase – 649 as at 30 September 2006; 674 as at 31 March 2007 and 773 as at 31 March 2008. As at 15 August, membership was recorded at 820.

Kate Davenport provided an update on the conference line-up. The Council praised the work done by Kate Davenport and also thanked Monique Person for her work on the conference programme.

Miriam Dean briefed the meeting on the success of the pilot seminar Take the Lead and Shape Your Future held at Bell Gully in July. The combination of prominent speakers and practical content had attracted over 130 delegates with a waiting list of around 50 people. A repeat seminar was scheduled for 29 October. Wellington and Christchurch Vice Presidents were encouraged to host the seminar in their centres.

Terry Sissons provided an update on the desired barristers’ training model.

The Council agreed that the Training Committee should proceed with the drafting of a commentary based on what occurs in other jurisdictions.

Monique Pearson reported on the success of the Wellington junior barristers’ function held on 27 June at the Bolton Hotel. Judges’ clerks, Crown lawyers and junior barristers had an opportunity to meet with members of the Wellington Council and senior members of the Association.

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Jonathan Eaton advised that invitations to the South Island cocktail function being held on 4 September had been circulated. The event was to celebrate the Association’s 20th anniversary, the swearing in of Justice French and to congratulate Judge Neave on his recent appointment. [Jonathan Eaton’s address has been re-produced in this newsletter and is accompanied by photographs taken at the event].

A committee was established comprising Elliott Hudson (chair), Stephen Mills and Ken Johnston, to review Bills before Parliament that affect lawyers.

Chris Gudsell reported on discussions with John Martin about the proposed PI insurance terms and premiums. The Council agreed to invite John Martin to its next meeting. The Council affirmed that it would continue to negotiate the most favourable PI cover terms for members.

The Council discussed the guidelines for appointment of Senior Counsel.

Jim Farmer and Colin Carruthers are the Association representatives on the panel along with the President and a representative from the NZLS and the Solicitor General.

An update on the One Society model was discussed.

Jim Farmer thanked Tony HughesJohnson, Ken Johnston and David Bigio for their excellent work on the Rules of Conduct and Client Care memorandum to barristers and sample engagement letter. He noted also that Trevor Shiels had not stood for re-election. The Council recorded its appreciation to Trevor Shiels for his exemplary work as Treasurer and Council member.

Jim Farmer made his final address to the Council as President of the Association.

In closing the meeting President-elect Colin Carruthers paid tribute to Jim Farmer in recognition of his outstanding contribution both to the Independent Bar and to the legal profession as President of the Association.

The meeting concluded at 5.15 pm.

COLIN CARRUTHERS QC - President Ph: 0064 4 471 4275 Fax: 0064 4 471 1195 P O Box 305, Wellington crc@crcarruthers.co.nz TERRY SISSONS - Vice President - Wellington Ph: 0064 4 471 1380 Fax: 0064 4 499 8795 P O Box 23063, Wellington terry.sissons@xtra.co.nz KEN JOHNSTON - Treasurer Ph: 0064 4 471 2727 Fax: 0064 4 499 4620 P O Box 5058, Wellington k-johnston@clear.net.nz JOANNE VERBIESEN Ph: 0064 4 917 1083 Mob: 0064 21 616 711 P O Box 117, Wellington 6140 joanne.verbiesen@stroutstreet.co.nz MIRIAM DEAN QC - Vice President - Auckland Ph: 0064 9 377 8959 Fax: 0064 9 377 8960 P O Box 4111, Auckland miriam@barrists.co.nz STEPHEN MILLS QC Ph: 0064 9 307 9820 Fax: 0064 9 307 1572 P O Box 4338, Shortland Street, Auckland stephen.mills@shortlandchambers.co.nz KATE DAVENPORT Ph: 0064 9 307 8787 Fax: 0064 9 307 8788 P O Box 141, Shortland Street, Auckland kate@katedavenport.co.nz GRAHAM KOHLER Ph: 0064 9 309 1769 Fax: 0064 9 377 6956 P O Box 4338, Auckland kohler@shortlandchambers.co.nz ANTHONY ROGERS Ph: 0064 9 373 3196 Fax: 0064 9 377 4850 P O Box 1771, Auckland agvr@xtra.co.nz CHRISTOPHER GUDSELL QC - Vice President Regions Ph: 0064 7 839 3290 Fax: 0064 7 834 0587 P O Box 19085, Hamilton ctgudsell@xtra.co.nz ELLIOT HUDSON Ph: 0064 7 839 6644 Fax: 0064 7 839 6610 P O Box 19252, Hamilton elliothudson@xtra.co.nz JONATHAN EATON -Vice President - South Island Ph: 0064 3 372 3466 Fax: 0064 3 365 2592 P O Box 13-868, Christchurch j.eaton@.bridgesidechambers.co.nz TONY HUGHES-JOHNSON QC Ph: 0064 3 365 2158 Fax: 0064 3 365 7273 P O Box 286, Christchurch achj@xtra.co.nz JOHN MATTHEWS Ph: 0064 3 409 2010 Fax: 0064 3 409 2012 PO Box 1770, Queenstown jgmatthews@xtra.co.nz 19

Discipline, Context and Timeframes Copy as provided by ANZ Private Bank Historic, tumultuous, volatile and unprecedented, it is now getting harder and harder to come up with a new way of describing what global investment markets have delivered over the last six to nine months. Many commentators have portrayed what began as the subprime collapse and quickly transformed into a global credit crisis as the worst financial crisis since the great depression.

or cyclical moves, only form part of much longer term secular bull and bear markets. These may last decades.

How this crisis will eventually end is obviously still unknown, however, it is absolutely vital that during these historic, tumultuous and volatile times investors maintain a disciplined approach. It is easy to get swept up in the all too frequent bursts of euphoria when the general feeling that ‘the worst is over’ hits the headlines and is just as easy to slide down into the gloom when the opposite emotions hit the markets.

These reactions are both common and understandable, unfortunately they are rarely if ever rewarding.

At Private Banking we have long viewed the fall in the developed markets of the US and Europe from 2000 to 2003 and the rally that followed until late last year as being cyclical or shorter term moves within a longer secular bear market that could well last up to twenty years.

With this perspective in mind, whilst we admit to being somewhat surprised by the severity of what has occurred over the last year, we are not surprised that the 2003 to 2007 bull market ended.

In order to maintain any degree of discipline during such stormy markets it is important that investors stay calm, take a step back and put what is occurring into a longer term context.

Much of what is written in the mainstream media about investment market valuations and relative attraction makes comparisons to what has been seen over the last ten or twenty, years.

This may be interesting but can also be very misleading. All markets move through irregular shorter term bull or bear markets that can last several years, however, these shorter term,

Designed with you in mind

Secular moves travel from historic overvaluations down to historic under valuations and back. The last secular bear in the US began in early 1966 and didn’t finally end until August of 1982.

Throughout that period the market delivered several cyclical bull and bear markets.

The current crisis will pass eventually and long before its resolution is obvious another cyclical bull market will begin.

We have been anticipating this and are constantly reviewing the major markets looking for opportunities to move back to neutral or even over weight positions rather than panicking about each new announcement. Whenever the current decline does end it may not mark the final secular bear market low, at least for the developed markets of Europe and the US, nonetheless it will still present a cyclical opportunity.

The emerging markets and Japan are positioned quite differently to the US

and Europe and we will probably view any turning point in those markets that emerges over the coming months more constructively from a long term perspective.

In the mean time we maintain our discipline, ignore the huge swings in emotion that markets will likely continue to display for some time and look for those longer term opportunities.

At A N Z P r i vAt e BA N k , w e h e l P c r e At e , m A N Ag e A N d P r ot e c t yo u r w e A lt h . A s o u r N A m e s u g g e s t s it’s All doNe with the utmost discretioN.

We provide a unique and valued service that builds great relationships. Whatever your financial need, your ANZ Private Banker can assist you at every stage. We explore national and international opportunities and develop a unique plan to suit your risk profile.

To learn more about the discrete, personalised service and focused advice that is ANZ Private Bank, call Evan Veza, +64 9 374 4087.

A copy of our General Disclosure Statement and our Disclosure Statement prepared under the Securities Markets Act 1988 is available on request and free of charge from any ANZ branch. ANZ, part of t National Bank Limited.

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