At The Bar December 2010
NEW NZBA PRESIDENT 2011 Annual Conference Auckland
A New NZBA President INSIDE THIS ISSUE Pg 2 - New NZBA President Pg 4 - Trans-Tasman Legal Proceedings Harmonisation in Force in Second Half of 2011 Pg 6 - Barristers Face Risks Too! Professional Indemnity and Risk Management Seminar Pg 7 - NZ Bar Claims Stats by Type Pg 8 - Facts are Sacrosanct - Lessons for Counsel Pg 9 - Summary of Council Meeting Minutes Pg 10 - Direction on Counsel Dress Announced Pg 11 - What Members Need to Know Pg 12 - Bar Chat Pg 13 - NZBA National Calendar Pg 14 - Upcoming International Events
EDITOR Catriona MacLennan Tel: 0064 9 378 0964 Email: catmac@orcon.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 and layout by Hot Lobster Printing courtesy of Ricoh New Zealand 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
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New NZBA President Miriam Dean QC intends to take a pragmatic approach to 2011, building on the work of her predecessors and enhancing NZBA benefits to members. She wants to consolidate the excellent progress made in recent years and plans to focus on five key issues. Training is important. Ms Dean says the NZBA has developed three seminars for junior and intermediate practitioners – Take the Lead and Shape Your Future, The Art of Written Persuasion (with Professor Raymond) and Facts are Sacrosanct. The Council’s training committee is now working on the fourth seminar, to be launched in 2011, with the aim of helping to lift the competency level of practitioners. Next year will also see a repeat of the NZBA’s debut 2010 criminal law series. The NZBA would like to see a compulsory bar practice course for independent barristers, Ms Dean says. Discussions are underway with the NZLS and, in her view, the NZBA and its members are uniquely placed to offer training to new barristers in the interests of both the profession and the public. Member benefits will also be addressed. As a new Council member six years ago, Ms Dean and her colleagues were responsible for creating the members’ benefits programme. The time has now come to refresh those benefits under a new committee chaired by Kate Davenport. Says Ms Dean, “We are looking at a myriad of things. The OfficeMax scheme has worked superbly and members have really benefited from the generous discounts available. Adding tangible benefits for members is a key priority for me and it is important to offer these. I am hopeful that the Council may be able to progress a new mobile phone plan, a possible banking
package and an association credit card”. Another priority is to do more for junior barristers. In addition to its training programmes, the Council is creating a “Find a Junior” page for its website and is keen to organise more social functions for junior barristers, Ms Dean says. The first of these, for the Auckland juniors, took place late November – over 60 juniors attended and “a good time was had by all”, she said. Other junior functions will be following in the rest of the country. A combined NZBA, NZLS and ADLS Inc function is also being planned for junior members early next year. Fostering collegiality among NZBA members is also to be encouraged. “It is important for independent barristers to come together from time to time as colleagues and indeed friends,” she says, pointing to the highly successful function held in Auckland for Justice Baragwanath following his retirement from the Bench. Ms Dean also wants to ensure that the NZBA’s work is not focused solely on Auckland as the home of the majority of members. “I’m really keen to see the association lift its profile and be more involved in activities in other parts of the country,” she says. Accordingly, Christmas drinks are to be held in Dunedin, Christchurch, Wellington, Tauranga and Auckland this year. In 2011, the NZBA’s training programmes will also be extended to Christchurch, Wellington and the Waikato. Ms Dean encourages the involvement of more non-Council members in the NZBA. A new junior members’ committee has only one Council executive member (Toby Futter as chair), while another committee set up to deal with disciplinary issues has a similar make-up. “It is important to seek
contributions from a wide range of members and sharing the workload also improves efficiency,” says Ms Dean. She hopes to take steps next year to advance the equitable briefing policy unveiled at the NZBA’s 2009 conference by Attorney-General Chris Finlayson and will be examining how the policy can be taken out to law firms and corporates. Although Ms Dean says she will have a particular focus on these five issues in the next year, work will continue in the important areas of law reform - the NZBA will be making a submission on the Criminal Simplification Bill - and strengthening relationships with other key “stakeholders,” including the judiciary, NZLS and overseas bar associations, to name only a few. Ms Dean is “pleased and proud to have broken a milestone for other women” by becoming the first woman to head the NZBA, now almost in its 23rd year. Coincidentally, it is also 23 years since she became Russell McVeagh’s first woman partner. Having said this, however, she believes strongly in women being appointed to positions because of their skills and not merely because they are women. “But to the extent that I am a woman, I hope that’s a plus.” In 1987, Ms Dean became a partner at Russell McVeagh McKenzie Bartleet & Co. She had previously completed an LLM at Harvard and worked as a litigation solicitor at Nicholson Gribbin, Russell McVeagh and at Mallesons Stephen Jacques in Sydney. Ms Dean was a partner at Russell McVeagh for seven years.
programme. She is also deputy chair of Auckland Council Investments and was recently a member of the Government’s electricity review group. Although it is not easy juggling legal practice, directorships and the presidency of the NZBA, she enjoys the positive and constructive nature of directorship work as a balance to litigation work that focuses primarily on resolving conflict. She believes legal skills are valuable in the business area and that, with the demand for women directors, NZBA members would be well placed to contribute in that arena should they choose to branch out. Ms Dean believes the NZBA fulfils an “enormously valuable role” in promoting and encouraging a strong independent Bar. The growing number of barristers forms an important part of the New Zealand legal profession. It is therefore important for the NZBA to strongly represent the interests of the independent bar, as well as to find ways to give tangible assistance to members’ practices, she says. “In my view, the NZBA is fortunate to have within its ranks a wide cross-section of members, many of whom are talented barristers in their particular fields. The NZBA relies on the support of its members as well as the energy and enthusiasm of its Council. I gratefully acknowledge the support of both and look forward to an exciting year in 2011.”
In 1994, she moved to the independent Bar and in 2004 was appointed Queen’s Counsel. She has been involved in a wide range of commercial (particularly competitionrelated) advice, strategy and litigation. Ms Dean is also an experienced mediator and arbitrator and is a member of the LEADR Advanced Panel of Mediators and the AMINZ Panel of Arbitrators and Mediators. She has been involved in teamwork throughout her career and acknowledges the “privilege” of working with barristers of the calibre of Queen’s Counsels Jim Farmer, Alan Galbraith and David Williams. Not only has she learnt a great deal professionally from all three, but they have been valuable mentors at every stage of her career, she says. “Mentoring can be key, in my view, especially for women lawyers, and I am surprised there has been a less-thananticipated uptake of the NZBA’s mentoring programme.” That aside, she is pleased the NZBA has a programme in place and that a number of senior members are prepared to mentor NZBA juniors, should they wish to take up that opportunity. Ms Dean was a board member of the Auckland Transition Agency between 2009 and 2010 and is currently a director of Crown Fibre Holdings, which is charged with rolling out the Government’s ultra-fast broadband
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Trans-Tasman Legal Proceedings Harmonisation in Force in Second Half of 2011 courts and tribunals, and for New Zealand courts to decline jurisdiction and, by order, stay proceedings in this country on the grounds that an Australian court is the more appropriate forum to determine the proceedings. New Zealand courts will also be able to grant interim In 2006, the working group issued a further relief in support of civil proceedings commenced in Australian courts. report making ten recommendations for improvement of the legal framework for Section 31 states that a party to resolving disputes with a trans-Tasman element. The central recommendation was proceedings in an Australian court that a “trans-Tasman regime,” modelled on may apply to the New Zealand High the Commonweath Service and Execution Court or to another New Zealand court approved by the Governorof Process Act 1992, be introduced as The Trans-Tasman Proceedings Bill was between the two countries. The proposed General by Order in Council for interim relief in support of the passed by the New Zealand Parliament regime would allow the initiating process Australian proceeding. However, in August, following Australia’s passing in civil proceedings out of a court in subsection 31(2) excludes from of its counterpart legislation in March. Australia or New Zealand to be served interim relief discovery; interim The passing of the acts followed the in the other country, with the same effect payments; warrants of arrest signing in July 2008 by the Australian as if service had occurred in the country of property; and any action, and New Zealand Governments of of issue. The paper also recommended assistance, order or other relief the Trans-Tasman Court Proceedings that the range of enforceable judgments and Regulatory Enforcement Treaty by between the two countries be broadened under subparts 1 or 2 of Part 4 of the Evidence Act 2006. then-Associate Justice Minister Lianne and that judgments should only be Dalziel and Australian Attorney-General refused enforcement if they conflicted with Robert McClelland. Ratification by both the public policy of the other country. The The legislation provides for people in Australia to appear remotely in civil Parliaments was required for the treaty to working group suggested that the new proceedings in New Zealand courts take effect. regime should be supported by greater and tribunals. The exceptions are use of teleconference and video link Mr Power said that both governments had technology to enable remote appearances the giving, examination of a person giving, or the making of submissions worked closely to develop the necessary in trans-Tasman proceedings. in relation to remote evidence under legislation and make sure that the new sections 168 to 172 of the Evidence regime would deliver the maximum The Trans-Tasman Proceedings Act 2010 Act. Mirror sections provide for people benefits for individuals and businesses on implements those recommendations. in New Zealand to appear remotely in both sides of the Tasman. Mr Power said during his first reading Australian proceedings, subject to the speech that the legislation would enable same exceptions. “The new regime reflects an unparalleled closer integration of the New Zealand level of co-operation between two and Australian civil justice systems, which Sections 52 to 68 deal with the countries on cross-border civil justice would benefit both countries. registration and enforcement in New issues. Advancing single economic market Zealand of specified judgments of outcomes is a priority for me as Minister of Section 3 of the act states that the Australian courts and tribunals. Section Justice and Commerce, and the passage purposes of the legislation are to – 52 provides that Australian judgments of this bill is a crucial part of that.” • streamline the process for resolving must be registered in New Zealand civil proceedings with a trans-Tasman courts to be enforceable in this The 2008 treaty flowed from the work of element in order to reduce costs and country. Section 54 defines registrable the Trans-Tasman Working Group, which improve efficiency produced a 2005 discussion document • minimise existing impediments to Australian judgments as those which titled Trans-Tasman Court Proceedings enforcing certain Australian judgments are final and conclusive judgments given in civil proceedings by an and Regulatory Enforcement – A Report and regulatory sanctions, and by the Trans-Tasman Working Group. • implement the Trans-Tasman Australian court; or judgments given by an Australian tribunal and which The paper proposed creating a more Agreement in New Zealand law. are orders declared under section coherent framework for trans-Tasman legal 55(1)(b) to be orders to which the co-operation in civil proceedings with a The act provides for the service in legislation applies. cross-border element so that disputes Australia of initiating documents for civil involving both New Zealand and Australian proceedings commenced in New Zealand Section 57 states that a Registrar of a New Zealand Ministry of Justice officials were working closely with their Australian counterparts on the content of the regulations required to bring into force legislation providing for greater harmonisation of trans-Tasman court proceedings, said a spokesperson for Justice Minister Simon Power. The spokesperson told At The Bar that, in addition to the work being done by the Australian Attorney-General’s Department, the implementation work also involved the Australian States and Territories. It was anticipated that the new regime would commence in the second half of 2011.
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facets could be resolved more efficiently and effectively. In particular, the document recommended changes to make it easier to enforce judgments between New Zealand and Australia and to make it possible to enforce civil penalties and certain criminal fines trans-Tasman.
aside the registration of an Australian judgment. Sections 69 to 75 deal with the registration and enforcement in New Zealand of judgments given in Australian trans-Tasman market proceedings. The act also amends sections 150 to 162 of the Evidence Act, which relate to subpoenas issued in civil proceedings in New Zealand courts being served and complied with in Australia. There is now provision for leave to serve a New Zealand subpoena on a witness in Australia to be given by a New Zealand court that is not a superior court, if the subpoena is one issued by that court or by a tribunal declared to be a New Zealand court under section 152 of the Evidence Act. The act provides for subpoenas issued in criminal proceedings in New Zealand courts to be served and complied with in Australia. New Zealand court must, on application under section 56, register in court a registrable Australian judgment. Section 61 sets out procedures for setting
The substantive provisions of the act will come into force on a date to be appointed by the Governor-General by Order in Council.
Mr Power and his Australian counterpart Chris Bowen on 23 June 2010 signed a revised Memorandum of Understanding Between the Government of New Zealand and the Government of Australia on the Co-ordination of Business Law. The memorandum is reviewed every five years. It commits both governments to work to “accelerate, deepen and widen� the trans-Tasman relationship and to encourage greater co-operation between Australian and New Zealand regulators and officials. Annexed to the memorandum is a work programme setting out both short and mediumterm goals. Short-term objectives are designed to be achieved by the end of 2011, while medium-term objectives are scheduled to be in place by December 2014. Short-term goals include a single cross-border insolvency proceeding where an insolvent entity has interests on both sides of the Tasman; transTasman companies having to prepare only one set of financial statements to one set of standards; and harmonised or co-ordinated approaches to the enforcement of consumer law.
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Barristers Face Risks Too! Professional Indemnity and Risk Management Seminar Barristers should identify potential risk
factors in their practices and take steps to minimise the likelihood of claims against themselves, said barrister Philip Rzepecky. He told the NZBA seminar Barristers Face Risks Too! Professional Indemnity and Risk Management that barristers were not often sued. That position had not changed, even in the wake of the disappearance of limited barristerial immunity in New Zealand. However, Mr Rzepekcy said that this did not mean that barristers did not face a level of liability risk which was the same as that of solicitors and other professionals. In addition, the new “consumer friendly” complaints procedures under the Lawyers and Conveyancers Act 2006 had upped the ante in relation to misconduct allegations and challenges to fees. “Professional indemnity insurance policies operate like a fire extinguisher - by the time a professional is notifying their insurance broker of a claim, they may well have been accused of serious neglect of their professional duties and, in many cases, of wasting their client’s time and money.” Mr Rzepecky said that it was essential for barristers to be familiar with the fundamental obligations set out in the Lawyers and Conveyancers Act, as well as the professional requirements prescribed by the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. He said that barristers must be free of any factors which might compromise their independence, while still maintaining loyalty to their clients and observing ethical practices. Experience showed that there were a number of common factors which increased the risk of claims against barristers, said Mr Rzepecky. Examples included urgent instructions, overlydemanding clients, issues relating to instructing solicitors and court time pressures. He said that the root of any claim would be dissatisfied clients and it was accordingly essential to manage clients effectively. Mr Rzepecky said that the intervention rule could cause problems with client management. In particular, the common practice of reverse instruction - where the primary contact with the client was the barrister - cut across many of the advantages and safeguards developed in the role of instructing solicitor. Clear communication, clear instructions, file management and professional support were crucial to avoiding risk, he said.
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Mr Rzepecky said that professional support was also important for barristers, as those practising on their own could find life at the Bar lonely. He advised that each new instruction should be carefully assessed to ensure that it was within the barrister’s range of experience. Fee disputes should be dealt with in a timely way and client confidentiality should be carefully observed. Chartis senior claims examiner, Fleur Goodyear, said that professional indemnity insurance policy holders should familiarise themselves with the workings of their policies and understand their obligations. Claims against lawyers might be notified in a number of different ways, including • written or verbal advice of an alleged breach of duty and a demand for compensation • the serving of proceedings • an instructing solicitor suing for fees, followed by the making of a counterclaim to which the barrister was joined, or • notice from the New Zealand Law Society that a complaint had been made. However, Ms Goodyear said that the circumstances in which barristers were obliged to notify their insurers of possible claims were broader than simply those situations. It might not always be clear when an insurer should be notified, as there were no hard and fast rules. Examples of circumstances included a client receiving a negative judgment, blaming the barrister and suggesting that the barrister had made a mistake in the pleadings. Another situation could be a barrister discovering that he or she had forgotten to attend to the filing of a specific notice within a required timeframe, although the client was not yet aware of this. A third circumstance could be a barrister finding out from his or her instructing solicitor that a client had not paid a bill, was voicing unhappiness about the barrister’s advice and was threatening to complain to the law society. Ms Goodyear said that barristers notifying claims needed to provide completed claim forms and detailed background about the issue. They should comment on liability and provide suggestions about solutions. Insurers
should also be provided with copies of the relevant correspondence or documentation, copies of proceedings and draft responses to correspondence. In order to protect their rights to indemnity, Ms Goodyear said that barristers should not admit liability, instruct their own counsel or settle any claims without prior consent. Insurance policy holders should not send responses to demands or take steps to defend claims without prior consent and should not hand over their original files without taking copies. Marsh senior risk adviser accountants and architects, Liam Pomfret, said that professional indemnity insurance covered • •
breaches of duty - all sums that were legally obliged to be paid as damages resulting from any claim for any breach of duty or other loss as indemnified by the policy and rising solely in the performance of the professional business, and damages - sums payable pursuant to judgments including the other party’s costs and interest on judgments, settlement and defence costs.
Coverage was subject to policy exclusions and conditions. Exclusions included circumstances occurring prior to the retroactive date; fines, penalties or other forms of criminal sanctions; previouslynotified claims or circumstances; known dishonesty; depreciation or loss of investments; and claims brought in the courts of the United States or Canada. Mr Pomfret said that barristers should manage their risks. This included standardising workplace procedures to create more efficient, compliant and cost-effectives workplaces, and improving client relationships to reduce the likelihood of misunderstandings. He said that risk management could result in lower insurance premiums, reduced risks of claims, and a reduction in risks that were not insurable, such as the loss of reputation or increased stress.
NZBA Claims Statistics by Type Nine out of 14 matters notified relate to complaints to the Law Society and the majority of those complaints arise out of Matrimonial / Family matters. Regardless of category, fee disputes feature heavily in all of the complaints to the Law Society.
21% 29%
7% 29% 7% 7% Litigation Matrimonial / Family / Children Debt Collection - complaints to NZLS Litigation - complaints to NZLS Matrimonial / Family / Children - complaints to NZLS Other - complaints to NZLS
Important Claims Information from Marsh If you think there may be an issue that could give rise to a claim at some stage in the future - notify Marsh immediately. This includes fee disputes and the threat of complaints being lodged with the Law Society. Members should feel free to contact Liam Pomfret at Marsh on (09) 366 9288 or liam.pomfret@marsh.com to discuss what constitutes a notifiable circumstance and advice on the notification process. 7
Facts Are Sacrosanct - Lessons For Counsel The importance of mastering the facts was stressed when some of New Zealand’s top senior counsel provided tips at the NZBA seminar Facts are sacrosanct. Introducing the proceedings, barrister Gerard Curry cited Sir Ivor Richardson’s famous maxim that “If you look after the facts, most often the law will look after itself.” Mr Curry said that the theory of the case must be fitted to the facts, rather than the facts being fitted to the theory. That was the case even if it required counsel to resist pressure being brought to bear by clients.
Local Government Official Information and Meetings Act 1987 • subpoenas duces tecum and notices to produce documents and things • notices to admit facts, and • the use of section 188 of the Evidence Act 2006 and Rule 9.17 of the High Court Rules to obtain Ms Dean said that early case preparation evidence or documents held work began with – overseas. • working through the pleadings • a “to do” list He said that the principal distinction • a chronology between interrogatories and particulars Mr Curry said that, in civil litigation, it was • identification of problematic facts, was that the former were concerned most often the written communications and with matters of evidence, rather than between the parties that would determine • consideration of how witnesses and with the clarification of pleadings. the outcome of the litigation. Accordingly, documents would be used to prove Interrogatories could be administered it was important to focus on what the facts. by both plaintiffs and defendants and documents said, rather than on what the answers to interrogatories could witnesses said that the documents said. He Crown Solicitor Simon Moore SC and be used as evidence at trial. However, said that the Official Information regimes barrister John Haigh QC discussed fact both at national and at local level were and principle analysis in the criminal extraordinary sources if used effectively, and civil context. Mr Moore stressed but he did not believe that lawyers took that lawyers were in the business of advantage of this tool often enough. persuasion and said that the art of advocacy was that of persuasion. Barrister Matthew Muir said that gathering Counsel could only be persuasive if the facts was at the core of what counsel they knew every aspect of the case. He did. If counsel misunderstood the facts, likened the process to an iceberg – only no amount of law could save counsel. He 10 per cent of what counsel knew would discussed the process for arriving at a be produced in evidence, but the other detailed understanding of the facts, likening 90 per cent might need to be drawn on. it to a funnelling process and advising that counsel should seek to substantiate Mr Moore said that counsel should be facts at an early stage. Both Mr Muir and able to reduce a case to the barest Miriam Dean QC stressed the importance propositions. Examples were “This is of using the “sniff” test to probe apparent a case about an obsessed husband inconsistencies, and said that site visits trying to control his wife;” “This is a could be extremely useful in educating case about a broken promise;” or “This Mr Mills said that there were a number counsel in a way which no amount of of “no go” areas where interrogatories is a case about abuse of trust.” He reading documents could match. were not permitted. One example was also emphasised the importance of visiting the scene at which the relevant interrogatories aimed at finding out the Ms Dean said that counsel needed to be names of intended witnesses. events had occurred. wary about whether clients were always telling the whole truth. She had learnt a Barrister Justin Smith discussed the Mr Haigh said that the defence salutary lesson when a client had admitted perspective involved a significantly briefing of evidence, using examples after 18 months that he had been lying taken from trial briefs of evidence which different approach to the facts, as a about his involvement in a price fixing very critical and inquiring approach was had been ruled inadmissible because case. Ms Dean made five key points – it was hearsay, submission, opinion required. Counsel should never rely on • plead the facts and not the evidence or otherwise did not comply with the the facts as presented by clients, as – focus on the what, how, where and clients in criminal cases had far more at rules of evidence. He explained how to by whom distinguish between evidence that was stake than those in civil or commercial • don’t bury key facts in the particulars matters. Mr Haigh said that the defence relevant and admissible, and evidence • use pleadings to advance the theory of had to provide a credible alternative that did not meet those criteria. Mr the case Smith urged those attending the to the Crown case. The most critical • presentation is crucial question in a criminal case was whether seminar to learn and apply the rules of • statements of defence can be used to or not to call the client to give evidence. evidence. He said that barristers should “say further” as a means of setting out go through briefs of evidence to check a case. that they complied with the rules before Stephen Mills QC discussed five they were filed and exchanged, in order methods of obtaining facts – Mr Muir said that the theory of the case to avoid embarrassment and difficulties • interrogatories was the plan or road map used to shape for themselves and their clients at a • information requests under the the law and facts. It must be based on Official Information Act 1982 and the later stage in the proceedings.
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a logical, sellable story with internal consistency, colour and flavour. The theory of the case should be able to be stated in a few sentences at most. Mr Muir said that developing a theory of the case began with identification of the key facts from the mass of material with which counsel was confronted.
Summary of Council Meeting Minutes The Minutes of the Council Meeting of the New Zealand Bar NZBA held on Friday, 27 August 2010 at 3:45pm at Millbrook Resort, Queenstown.
The Rt Hon Lord Justice Jackson joined the meeting and discussed with Council members the outline of his contribution to the annual conference “Justice at any Cost”.
Present: Colin Carruthers QC, Miriam Dean QC, Stephen Mills QC, Christopher Gudsell QC, Anthony Rogers, Kate Davenport, Gerard Curry, Graham Kohler, Elliot Hudson, John Matthews, Tim Castle, Toby Futter, Monique Pearson
The meeting adjourned at 5:45pm.
Apologies: Jonathan Eaton, Kenneth Johnston Guest: The Rt. Hon Lord Justice Jackson
C Carruthers updated the Council on two matters - the ongoing issue of formal recognition of a Bar Council member on the Rules Committee; and what criteria for eligibility should be set for the title of QC and SC. In the absence of K Johnston, M Pearson reported on the financial accounts for June and July 2010. Points of interest included income from seminars and the perennial issue of overdue subscriptions. On the latter point, M Pearson noted that she would like to have the online credit card payment facility ready for the 1 April 2011 subscription renewal date. In terms of the impending GST change, M Pearson spoke to the flyer that Markhams had prepared and which the Council agreed would be a helpful resource for members. T Futter reported on the success of the Wellington Sentencing Advocacy Competition that K Johnston attended on behalf of the NZBA. As to junior barristers’ meetings and future initiatives, the Council discussed the matter of increased social events in the 2010-2011 year. T Futter said he would discuss the possibility of co-hosting a social event with the Young Lawyers Association in Christchurch with C Bibbey, and discuss future Auckland functions with M Dean. M Dean updated the Council on the content of the proposed Bar Practice Course and the wider issue of the NZLS Competency Assurance Scheme. The Council discussed the possibility of a function to mark the retirement of Justice Baragwanath. C Carruthers made his final address to the Council as President of the NZBA. He thanked Council members for their support and indefatigable work throughout his term. He thanked those members who had decided not to stand again for Council - J Matthews, J Eaton and G Kohler - for their valuable contributions.
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In closing the meeting, M Dean paid tribute to C Carruthers in recognition of his outstanding contribution to the NZBA. She said that not only had the NZBA grown in size but also in stature, which was a result of his excellent work over the last two years. The Council expressed its gratitude by acclamation. M Dean concluded by welcoming C Carruthers as the NZBAs first Past President.
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WHAT MEMBERS NEED TO KNOW Direction on Counsel Dress Announced Following a period of consultation with the legal profession, Chief District Court Judge Russell Johnson has directed that from 28 February 2011 barristers will be required to wear gowns in jury trials in District Courts across New Zealand. Chief Judge Johnson said that in coming to his decision he had heeded the advice of the New Zealand Law Society that there was overwhelming support for the wearing of gowns by its members, the New Zealand Bar Association and the wider legal community. “No one should imagine that the wearing of gowns will increase counsels’ experience, ability or forensic skill.
However I believe this move will bring more formality to the trial court and serve to remind counsel of the obligations of the profession they represent. It will also highlight to all court users the dignity required and the serious nature of matters now being conducted in the indictable jurisdiction of the District Court. There has been a quiet revolution in jury trial procedure in the last several years and an increase in the court’s jurisdiction so the time is right to make this small change,” Chief Judge Johnson said. To avoid confusion in courts which run mixed indictable and summary sentencing lists, the requirement will not apply to other types of hearings in the District Court, including sentencing.
Practice Note Counsel Dress in District Court Jury Trials 1. This direction in relation to dress of Counsel in jury trials held in District Courts in New Zealand will take effect on 28 February 2011. 2. All Counsel appearing as Counsel in a jury trial in a District Court in New Zealand are required to wear a Barrister’s gown appropriate to their rank as a Barrister of the High Court of New Zealand. 3. For the avoidance of doubt, gowns shall not be worn for sentencing, indictable or otherwise, unless that sentencing follows immediately upon a verdict, with or without a short adjournment, nor will they be worn for the hearing of applications before trial or for trial callovers. 4. Counsel should utilise a gown carry bag to avoid the draping of gowns around the courtrooms. R J Johnson Chief District Court Judge 11 November 2010
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WHAT MEMBERS NEED TO KNOW NZBA “Find-A-Barrister” directory and launch of the new “Find-A-Junior” listing The website directory is available to all NZBA members and includes information on practising barristers, areas of practice and contact details. Members can update their own details or send any changes in particulars to the NZBA administrator at nzbar@nzbar.org.nz. Members can also upload their photograph next to their details on the website. All that is required is a digital photograph of yourself, which you can take professionally or with a domestic digital camera. The photograph can then be emailed to nzbar@nzbar.org.nz. A new feature to the website is the Find-A-Junior page, which enables junior members to indicate to senior members - via a capacity indicator on the website - their availability to take instructions. Members are encouraged to make use of this facility. It is useful to the public and it is helpful to our junior members.
NZBA Insurance Plan The Bar Council is pleased to advise that for the insured period beginning 1 December 2010 there will be: • No premium increases; • An enhanced cover for disciplinary complaints; • A reduced premium rate for barristers who undertake 85% or more of their legal work in the criminal field; and • Our insurers remain the same. To access the renewal terms and proposal form, please contact Liam Pomfret at liam.pomfret@marsh.com or phone (09) 366288.
Annual Subscriptions A reminder to members that benefits and services provided by the NZBA - including the NZBA PI Insurance Plan - are dependent on members being financial. Please contact the NZBA at nzbar@nzbar.org.nz if you are unsure of the status of your membership.
NZBA Mentoring Programme A reminder to members that the NZBA has a mentoring programme which aims to provide a means for less experienced practitioners and members who are new to the independent bar and/or to the NZBA with an opportunity to receive valuable support and guidance in their professional development from a senior member of the NZBA. The mentoring programme is an informal arrangement made between a mentor and mentee. The Bar Council is conscious that there are far too many variables to consider a “one size fits all” approach. For that reason, the aim of the programme is to be flexible in a way that allows a mentee to develop at a comfortable pace. Visit the “Professional Development” page of the NZBA website www.nzbar.org.nz to find out how to register as a mentor and/or mentee.
Thank you Thank you to all our members and sponsors who have supported the NZBA this last year. The Council is very grateful for your assistance. Special thanks also to Catriona MacLennan for her assistance as Editor of our newsletter.
Appointments Congratulations to The Hon Justice Grant Hammond on his appointment as the next President of the Law Commission and to Tom Weston QC on his appointment as Chief Justice of the Cook Island.
Update on NZBA Rules Sub-committee submissions Submission prepared on the Lawyers and Conveyancers Amendment Bill Preparing a submission on the Criminal Procedure (Reform and Modernisation) Bill
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BAR CHAT New Bar Association Members
Bar Council Meetings
The Bar Association welcomes the following new members to the independent bar and/or the Bar Association:
Members should feel free to contact any of the Bar Council members - or the Bar Association - with any matters they would like raised on their behalf at future Bar Council meetings.
AUCKLAND/ NORTHLAND:
Maria Cole, Sommer Crowley, Deborah Doak, Royden Hindle Peri Hoskins, Renee Karena, Anita Killeen, Judith Moore, Michael Ruffin, John Walton, Justice Mark Woolford
WELLINGTON:
Sir Geoffrey Palmer, Pherne Tancock, Peter Taylor, Jack Wass
NELSON:
John Sandston
DUNEDIN:
Raelene Kelly
NZBA Office Christmas Closure Please note that the office of the NZBA will be closed from noon on 23 December 2010 until Tuesday, 11 January 2011. Wishing you a safe and enjoyable holiday break, Monique Pearson, Executive Director, and Lisa Mills, Administrator
INTERNATIONAL: Carl Ngamoki-Cameron
DATE
EVENT
VENUE
25 February
Council Meeting and practitioners’ luncheon
Christchurch
08 April
Council Meeting
Phone Conference
20 May
Council Meeting following Bench and Bar Dinner
Wellington
01 July
Council Meeting and practitioners’ luncheon
Tauranga / Rotorua
September
Pre-conference Council Meeting
Auckland
Barristers Chambers Vulcan Building Chambers has expanded and rooms are available to barristers wishing to share facilities in a convivial and supportive environment with a contemporary fitout. Facilities include boardroom, secretarial support, library, kitchen and shower, high speed photocopying (black and white and colour) and printing and phone system.
Please phone Brian on 300 1255 or Mike on 303 4704
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NZBA NATIONAL CALENDAR MARK YOUR DIARIES NOW! A list of NZBA events for 2011 can be found below. Programmes and registration forms are available on the events calendar page of the NZBA website www.nzbar.org.nz. Please note that these dates are subject to change. Members are encouraged to refer to the NZBA website for updates to this schedule. DATE
SEMINAR
25 February
NZBA Practitioners’ Luncheon
(TBC) March
NZBA Business Basics for Barristers and Sole Practitioners
11 March
NZBA Take the Lead and Shape Your Future (followed by a social event)
19 March 16 April
NZBA/CBA Criminal Law Update Topic to be confirmed NZBA/CBA/Independent Forensic Practitioners’ Institute (IFPI) Alcohol: drink-driving and beyond Road crash investigation Air crash investigation
VENUE Christchurch 1:15-2:15pm Hawkes Bay Details to be confirmed Crown Plaza Christchurch 1-5pm Pioneer Women’s Hall, central Auckland 1-4pm Pioneer Women’s Hall, central Auckland 1-5pm
Wellington 1-5pm Pioneer Women’s Hall, central Auckland 1-4pm Wellington Club 7:30-11:30pm Pioneer Women’s Hall, central Auckland 1-4pm Tauranga / Rotorua 1:15-2:15pm Pioneer Women’s Hall, central Auckland 1-4pm
03 May
NZBA Facts are Sacrosanct (followed by a social event)
14 May
NZBA/CBA Criminal Law Update Tricks of the Trade
19 May
NZBA Bench and Bar Dinner
18 June
NZBA/CBA/ESR Seminar
01 July
NZBA Practitioners’ Luncheon
16 July
NZBA/CBA Seminar Mental Health
13 August
NZBA/CBA/ESR Seminar
(TBC) September
NZBA The Art of Written Persuasion with Profressor Raymond
17 September
NZBA/CBA Seminar Forensic Document Examination
15 October
NZBA/CBA/IFPI Seminar DNA, body fluids and blood pattern analysis Fires, explosives and arson Fingerprints Facial mapping
TBC November
NZBA Facts are Sacrosanct (followed by a social event)
Hamilton 1-5pm
19 November
NZBA/CBA Criminal Law Update Topic to be confirmed
Pioneer Women’s Hall, central Auckland 1-4pm
Pioneer Women’s Hall, central Auckland 1-4pm Auckland and Wellington Details to be confirmed Pioneer Women’s Hall, central Auckland 1-4pm Pioneer Women’s Hall, central Auckland 1-5pm
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UPCOMING INTERNATIONAL EVENTS ABA Residential Advanced Trial Advocacy Course Registration for the fifth ABA Residential Advanced Trial Advocacy Course is still open, but only four places remain. It will be held from 17 - 21 January 2011 in Melbourne. The course is designed for experienced advocates who wish to take that next step in their professional development and places are limited to practitioners with seniority of at least two years at the independent bar. The coaching facility will comprise top senior Australian and international barristers, judges and performance coaches. The Bar Council is pleased to advise that one of the NZBA Vice-President’s, Chris Gudsell QC, is on the faculty. The cost of the course is AU$3,400 and covers all course materials and readings, course venue, equipment, transcript, five nights’ accommodation (Monday - Friday nights), and all meals, including a formal dinner. For more information on the course and registration, please contact Chris D’Aeth at cdaeth@nswbar.asn.au
International Bar Association Conferences The IBA stages multiple events each year in major cities throughout the world, focussing on various areas of practice. Conferences are open to IBA members and non-members, with discounted rates offered for early registration and IBA members. On page 15 you will find the preliminary details of IBA events for 2011 with links to relevant conference mini-sites, where you can either register in full for the conference, or register your interests to attend where the full programme details are pending. By registering your interest you will be sent a programme and registration details as soon as they are available.
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UPCOMING INTERNATIONAL EVENTS The Commercialisation of Knowledge Based Industries - Israel’s Experience REGISTER YOUR INTEREST NOW Olympic-sized investments: Business Opportunities and the Legal Framework BOOK NOW AMPLA/IBA Resources and Energy Law Conference South East Asia REGISTER NOW 14th Annual International Arbitration Day REGISTER YOUR INTEREST NOW 16 Annual International Wealth Transfer Practices Conferences: Private clients in 2011 - caught in the cross-fire or the crosshairs? REGISTER YOUR INTEREST NOW Merger Regulation in the EU after 20 years REGISTER YOUR INTEREST NOW 12th Annual International Private Investment Funds Conference REGISTER YOUR INTEREST NOW Mergers & Acquisitions in Latin America: emerging from the financial crisis REGISTER YOUR INTEREST NOW The New Normal: The effect of the global financial crisis on the private and family owned enterprises REGISTER YOUR INTEREST NOW Employment Law and Discrimination Law Conference REGISTER YOUR INTEREST NOW IBA/KBA Competition Law Conference REGISTER YOUR INTEREST NOW
10 - 11 February Tel Aviv, Israel 21 - 23 February Rio de Janeiro, Brazil 23 - 25 February Singapore 3 - 4 March Seoul, South Korea 7 - 8 March London, England 10 - 11 March Brussels, Belgium 13 - 15 March London, England 23 - 25 March Mexico City, Mexico 10 - 12 April Chicago, USA 14-15 April Brussels, Belgium 28 - 29 April Seoul, South Korea
Global Investments in Real Estate: Trends, Opportunities and New Frontiers REGISTER YOUR INTEREST NOW
2 - 3 May Miami, USA
The Second Conference of the Americas REGISTER YOUR INTEREST NOW
5 - 6 May Miami, USA
22nd Conference on the Globalisation of Investment Funds REGISTER YOUR INTEREST NOW 22nd Annual Communications and Competition Law Conference REGISTER YOUR INTEREST NOW 28th International Financial Law Conference REGISTER YOUR INTEREST NOW Annual Litigation Forum: Managing Litigation Risk - the view from Inside the Corporation REGISTER YOUR INTEREST NOW 17th Annual Global Insolvency and Restructuring Conference: Only the strong will survive financing and valuing distressed entities REGISTER YOUR INTEREST NOW 6th Annual Bar Leaders Conference REGISTER YOUR INTEREST NOW 10th Annual Mergers and Acquisitions Conference REGISTER YOUR INTEREST NOW 14th Annual Criminal Law Conference REGISTER YOUR INTEREST NOW IBA ANNUAL CONFERENCE 2011 REGISTER YOUR INTEREST NOW
15 - 18 May Boston, USA 16 - 17 May Vienna, Austria 18 - 20 May Zurich, Switzerland 19 - 20 May Krakow, Poland 22 - 24 May Paris, France 25 - 26 May Warsaw, Poland 15-16 June New York, USA 17-18 June Amsterdam, The Netherlands 30 October - 4 November, Dubai, UAE
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Inaugural Family Mediation Conference Auckland, 23 February 2011 The past year has seen a mounting interest in family mediation. This of course has been spurred on by the Early Intervention Process in the Family Court which provides for Counsel to Assist as mediators. In the Family Court, mediation is now a mainstay and as such it is essential that all practitioners working in the family area understand mediation. The inaugural Family Mediation Conference, coordinated by the Arbitrators’ and Mediators’ Institute of New Zealand, (AMINZ), provides learning for those interested in family mediation, whether as mediators or those engaged in mediations, whether as a part of the Early Intervention Process or outside the Court system. The Conference gathers together distinguished speakers who will provide presentations on critical and current issues in family mediation. The conference will thus provide valuable opportunities for professional development and networking as well. It is appropriate that the conference is launched by the Principal Family Court Judge, His Honour Peter Boshier as he has been at the forefront of developing mediation in the Family Court. He will speak on the future of mediation in the Family Court. The keynote speaker is Associate Professor Dale Bagshaw, Australia who has recently released the much anticipated research commissioned by the Australian Attorney General on the impact of family violence on dispute resolution and the Courts. She will also present on including children’s voices in mediation. Other presenters include Deborah Hollings QC , Tony Lendrum, Nigel Dunlop, Gaye Greenwood, Antony Mahon, Deborah Sim and Moira Green. Members of the NZ Bar Association are eligible for AMINZ member rates to attend the conference. More information on the conference and registration is available at: www.aminz.org.nz
2010 - 2011 COUNCIL CONTACT DETAILS MIRIAM DEAN QC - President Ph: 0064 9 377 8959 Fax: 0064 9 377 8960 P O Box 4111, Shortland Street, Auckland, 1140 miriam@barrists.co.nz COLIN CARRUTHERS QC - Past President Ph: 0064 4 471 4275 Fax: 0064 4 471 1195 P O Box 305, Lambton Quay, Wellington, 6140 crc@crcarruthers.co.nz STEPHEN MILLS QC - Auckland Vice-President Ph: 0064 9 307 9820 Fax: 0064 9 307 1572 P O Box 4338, Shortland Street, Auckland, 1140 stephen.mills@shortlandchambers.co.nz CHRISTOPHER GUDSELL QC - Waikato/BOP Vice-President Ph: 0064 7 839 3290 Fax: 0064 7 834 0587 P O Box 19085, Hamilton, 3244 ctgudsell@xtra.co.nz KENNETH JOHNSTON - Wellington Vice-President Ph: 0064 4 372 3466 Fax: 0064 4 365 2592 P O Box 5058, Lambton Quay, Wellington, 6145 k-johnston@clear.net.nz CATHERINE BIBBEY - South Island Vice-President Ph: 0064 3 377 5589Fax: 0064 3 365 2592 P O Box 13-868, Armagh, Christchurch, 8141 c.e.bibbey@xtra.co.nz TOBY FUTTER - Junior Barristers’ Representative Ph: 0064 9 308 0516 Fax: 0064 9 308 0518 Bankside Chambers, Level 22, 88 Shortland Street, Auckland toby@futter.co.nz ELLIOT HUDSON - Treasurer / Secretary Ph: 0064 7 839 6644 Fax: 0064 7 839 6610 P O Box 19252, Hamilton, 3244 elliothudson@xtra.co.nz TIM CASTLE Ph: 0064 4 471 0523 Fax: 0064 4 471 0672 P O Box 10048, Wellington tim.castle@xtra.co.nz GERARD CURRY Ph: 0064 9 377 9783 Fax: 0064 9 377 9784 P O Box 106586, Auckland, 1143 gerard.curry@argylechambers.com
NZBA - CONFERENCE 2011 Preparations are underway for next year’s annual conference, which will take place in Auckland. Further details will be available in the New Year.
KATE DAVENPORT Ph: 0064 9 307 8787 Fax: 0064 9 307 8788 P O Box 141, Shortland Street, Auckland, 1140 kate@katedavenport.co.nz ANTHONY ROGERS Ph: 0064 9 377 4850 Fax: 0064 9 377 4850 P O Box 1771, Shortland Street, Auckland, 1140 agvr@xtra.co.nz CLIVE ELLIOTT Ph: 0064 9 309 1769 Fax: 0064 9 366 1599 P O Box 4338, Shortland Street, Auckland, 1140 elliott@shortlandchambers.co.nz MALCOLM WALLACE Ph: 0064 3 379 6976 Fax: 0064 3 365 2592 P O Box 13254, Armagh, Christchurch, 8141 malcolmwallace@bridgesidechambers.co.nz DEAN TOBIN Ph: 0064 3 477 8781 Fax: 0064 3 477 8382 P O Box 1424, Princes Chambers, Princes Street, Dunedin, 9054 dean.tobin@princeschambers.net
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