At The Bar
Issue No 3 ~ June 2008
Bar Association Celebrates 20th Anniversary The New Zealand Bar Association celebrates its 20th anniversary on 4 July 2008, and will mark the occasion with a cocktail function at the Stamford Plaza in Auckland on 3 July. Other events organised by the Association’s Vice Presidents will be held around the country to celebrate the anniversary. President Jim Farmer QC, who has presided over the Association for a total of eight out of its 20 years of existence, said that the founding members had been determined that the Association would not just be a dining club or a trade union for its members. The Association had its genesis in a resolution passed at a meeting of barristers on 2 November 1987, which proposed the establishment of a Bar Association. A steering committee consisting of Ted Thomas QC (Convenor), Raynor Asher, Jim Farmer QC, Noel Ingram and Peter Williams QC was formed to progress the establishment of the organisation. A meeting held on 10 December 1987 discussed five key issues. These were whether or not an Association should be established, and, if so, whether membership should be restricted to barristers sole. Other key issues considered were whether membership of the Association should be compulsory, whether Association members should remain members of the Law Society, and whether the Association should have statutory recognition. Pending the holding of elections, the Association was run by the steering committee. A certificate of incorporation was granted on 4 July 1988.
that barristers were regarded as specialist advocates able to bring objectivity to their cases, and it was important to preserve and foster those qualities.
Taking steps to develop closer international ties: Photographed at the recent NSW Bench and Bar dinner are from left, Colin Carruthers QC (NZBA VicePresident), Stephen Estcourt QC (ABA past President) and Tom Bathurst QC (ABA President). The dinner was held at the Hilton Sydney on 9 May 2008 with The Hon Justice Susan Kiefel as the Guest of Honour. Photograph supplied courtesy of Murray Harris Photography.
He stressed that the Association should not be seen as a break-away group from the Law Society. Its members would remain members of the Law Society, but their interests were entitled to separate attention. Mr Thomas said that the Association’s discussions with the Law Society had been amicable and it was expected that the relationship would remain harmonious and cooperative. At the time the Bar Association was created, there were around 200 barristers practising in New Zealand. That was a larger figure than for any of the separate bars in Queensland, Western Australian, South Australia, the Northern Territory and Tasmania. All of those, except for Tasmania, had their own Bar Associations.
The objectives of the Bar Association were to promote and The first election was held on 8 June 1989, with 15 protect, within the wider context of the justice system, the candidates standing for 10 vacancies. Voting was open interests of independent barristers. The then-Mr Thomas in to all barristers at the independent bar. Mr Thomas was a media release the following year said that the Association elected President, and Raynor Asher (Auckland), Colin aimed to foster a strong separate and independent bar, and Carruthers (Wellington), Sonja Clapham (Auckland), to promote the interests of barristers Jim Farmer QC (Auckland), John and the public in relation to legal McLinden (Wellington), Andrew Molloy representation and the operation First International (Auckland), Elizabeth Quinn (Hamilton), of the judicial system. He identified Terence Sissons (Christchurch), Conference high standards of ethical conduct Roy Somerville (Dunedin) and Peter among barristers, good quality legal Williams (Auckland) were elected as 15-16 August 2008 representation and advocacy, and an council members. The first council independent judiciary as other key see page 17 for details meeting was held in Auckland on 28 concerns. Mr Thomas went on to say July 1989, and by November that year continued over...
Tel: +64 9 303 4515 Fax: +64 9 303 4516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz P O Box 631 Auckland 1140
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INSIDE THIS ISSUE Pg 1 - NZBA Celebrates 20 years Pg 2 - Swearing-in of Two High Court Judges Pg 3 - Qualities of Fairness, Impartiality, Principle & Justice Pg 4 - Court of Appeal’s Contribution Important in Commercial Cases Pg 5 - Take the Lead & Shape Your future Pg 6 - International Conferences Pg 7 - Bar Chat Pg 8 - 2008 NZBA Bench & Bar Dinner Pg 10 - NZBA Council Minutes Pg 11 - Final Thoughts From Junior Barrister Pg 12 - Barristers Governed by New Rules of Conduct Pg 13 - Best Practices in Litigation Pg 14 - A Different Mindset Pg 15 - Best Practices in Litigation Pg 16 - Best Practices in Litigation Pg 17 - First International Conference Pg 18 - Registration Information Pg 19 - Conference Packages Pg 20 - Registration Form
EDITOR Catrionna MacLennan Tel: +64 9 378 0964 Email: catmac@clear.net.nz EDITORIAL COMMITTEE Miriam Dean QC Convener Tel: +64 9 377 8959 Email: miriam@barrists.co.nz Monique Pearson Tel: +64 9 303 4515 Email: nzbar@nzbar.org.nz DESIGN & PRINT Amanda Brett, Kinetech Design & Print Tel: +64 9 576 8393 Email: amanda@kinetechprint.co.nz New Zealand Bar Association Tel: +64 9 303 4515 Fax: +64 9 303 4516 Email: nzbar@nzbar.org.nz Web: www. nzbar.org.nz P O Box 631 Auckland 1140 2
Bar Association Celebrates 20th Anniversary cont... the Association had 63 members. Today, it has 787 financial members, and the independent bar now constitutes 20 per cent of the entire New Zealand legal profession. The Association’s first Executive Director, Monique Pearson, took up her full-time position on 1 December 2006 and the Association at the same time moved into offices in Queen Street, Auckland. The Association has in recent years expanded the range of benefits it offers to members to include bulk buying schemes, as well as the offering of professional indemnity insurance. Steps have also been taken to develop closer ties with the Association’s Australian counterparts, culminating in the decision to hold the annual conference in Sydney this year. The Association is regularly invited to make submissions to bodies such as the Rules Committee and the Law Commission on new legislation and other matters. Reflecting on the 20th anniversary, Dr Farmer recalled that the late Lord Cooke had been the speaker at the Association’s inaugural dinner. Lord Cooke had predicted that, in time,
the association would become a highly influential power, which would provide leadership for the profession in relation to litigation matters. Dr Farmer said that this prophecy had been well and truly fulfilled. List of Presidents June 1989-1990 Ted Thomas QC/Jim Farmer QC
1990-1992 Jim Farmer QC
1992 – February 1994 Jim Farmer QC
March 1994-February 1996 Julian Miles QC
March 1996-February 1998 Raynor Asher QC
March 1998-February 2000 John Wild QC/Stuart Grieve QC
March 2000-September 2002 Stuart Grieve QC
October 2002-September 2004 Robert Dobson QC
October 2004-September 2007 Jim Farmer QC
October 2007-September 2008 Jim Farmer QC
Swearing-in of two High Court Judges NZBA Council member, Tony Hughes-Johnson QC, spoke on behalf of the association at the swearing-ins of two High Court Judges. On 19 March he told the High Court at Invercargill at the swearing-in of Justice French that the Invercargill bar had enjoyed an enviable reputation over the years, with a real sense of barristerial collegiality which was regrettably becoming increasingly absent in the larger centres. Mr Hughes-Johnson noted that others had commented on Justice French’s propensity to get to the
point quickly. This was epitomised by a case in which the local council had sought to justify a rental increase. Justice French had simply asked a council witness whether the rental increase charged by the council was fair. The single word denial in response spelt the end of the council’s case, and was a tribute both to Her Honour’s insight and to her courage in putting the question. Mr Hughes-Johnson assured Justice French of a warm welcome from the local bar and its fulsome support when she moved to Christchurch a move he suspected carried with continued over...
Swearing-in of two High Court Judges cont... it a myriad of mixed feelings. The new judge was leaving a family practice which she had faithfully and diligently served for many years, but there would be a sense of anticipation and excitement at what lay ahead. Speaking in Christchurch the following day at the swearing-in of Justice Wylie, Mr Hughes-Johnson noted that Justice Wylie’s father had been appointed as a judge of the High Court on 2 May 1986. It was remarkable that Justice Wylie was following in his father’s footsteps, and no doubt gave rise to a great sense of family pride. “Whilst the term of Your Honour’s father was cut short, his contribution to the law, exemplified by a number of leading judgments and the contribution which he made when sitting temporarily on the Court of Appeal, was notable. And, like you, Your Honour’s father was very much his own man.” Mr Hughes-Johnson noted that Justice Wylie’s services as a barrister had always been keenly sought on a wide range of matters, both locally and nationally. His practice had had exceptional breadth; he had been recognised as a leading expert in administrative law matters, as well as having a very busy commercial practice; and was an acknowledged leader of the bar in resource management matters. Justice Wylie’s reputation for sound judgment had been widely recognised, and respected, and he had always been a formidable opponent. His reputation for thoroughness, courage, sound advocacy and, above all, impeccable integrity, had earned him the trust and respect of the judiciary, said Mr Hughes-Johnson. He said that Justice Wylie would be sorely missed as a senior member of the Christchurch bar at a time when the independent bar was having to look long and hard at the features which justified its existence, following the passage of the Lawyers and Conveyancers Act 2006. The NZBA had been active in pursuing the notion that a strong and independent bar was an essential partner with the courts in the machinery of dispensing justice.
Qualities of Fairness, Impartiality, Principle and Justice The Hallmarks of Justice Anderson’s Career Principle coupled with wisdom had been the hallmark of Justice Anderson’s career as both a lawyer and a jurist, said barrister Stuart Grieve QC, speaking on behalf of the New Zealand Bar Association at Justice Anderson’s valedictory sitting. Mr Grieve said that he and Justice Anderson had always been friends in the law – a friendship born of respect for Justice Anderson’s integrity as a lawyer, his learning and common sense and, later, respect for him as a jurist. “A judge who was never pragmatic if being pragmatic meant ignoring legal principle, a judge for whom jurisprudential principle was your personal touchstone. And you applied those principles with wisdom and humanity.”
gone well for the defence and, as a result, he felt a very strong sense of injustice. Justice Anderson presided over the third trial and the accused were accorded a scrupulously fair trial and summing up. “During the course of that summing up I had a great sense of relief that the system, through you, had finally delivered justice to the accused. The verdict which was to come was irrelevant to that feeling.” Mr Grieve concluded that fairness, impartiality, principle and justice had been the hallmarks of Justice Anderson’s career as a barrister, and then as a trial judge. He would be long remembered and sadly missed for those qualities.
Mr Grieve said that two examples of this came to mind from his personal experience. The first involved somewhat prosaic circumstances which illustrated the value of appointing judges who had been experienced trial advocates. The case involved an alleged New Plymouth cannabis dealer, with an issue arising over the date for the trial, which was going to be lengthy. There was a mix-up involving visiting High Court Judges making administrative decisions about dates with the Registrar, the fixing of further dates, and then a rejection of two adjournment applications. Faced with adverse and conflicting decisions by different judges, Mr Grieve said that he had filed a memorandum for Justice Anderson’s decision as executive judge in Auckland. Justice Anderson heard argument and then delivered a judgment clearly and simply illustrating his appreciation of the necessity to deliver justice according to principle but tempered by practicality and an understanding derived from his experience at the bar. The second example involved the third trial relating to Plumley Walker. Mr Grieve said that, for a variety of reasons, the first two trials had not
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Court of Appeal’s Contribution Important in Commercial Cases The Court of Appeal’s approach to commercial and tort cases over the past half century was discussed in two sessions at a conference organised by the Legal Research Foundation to mark the fiftieth anniversary of the establishment of the permanent Court of Appeal.
Equity in commercial dealings University of Oxford Registrar, Dr Julie Maxton, spoke about equity in commercial dealings, observing that commercial aspects of trusts and fiduciary law had regularly come before the Court of Appeal in the past 50 years. As a result, considerable light had been shone on some of the most significant issues of modern times. Dr Maxton said that an expansion of the fiduciary principle had led to a recent incursion of equity into the commercial world, demonstrating the elasticity of the fiduciary principle. Traditionally, there had been a reluctance to superimpose fiduciary obligations in arm’s length commercial transactions entered into by parties on an equal footing. However, over the past half century, there had been attempts to extend the fiduciary principle into new territories such as negotiated commercial contracts, leading to an increased focus on when and how fiduciary obligations arose, when they ended, and what comprised the
substance of the fiduciary duty. Dr Maxton said that the work of the Court of Appeal demonstrated that a more relaxed approach to the possibility of fiduciary obligations in commercial contexts did not necessarily involve challenges to the security of business transactions; nor need it lead to “floodgates” concerns. The key to restrained and principled development in this area had been the careful identification of circumstances giving rise to legitimate expectations of loyalty. Accompanying this expansion of the fiduciary principle, said Dr Maxton, had been a renewed interest in the range and reach of remedies for breach. The Court of Appeal’s approach to causation, apportionment of liability, adequacy of damages and constructive trusts had shown increasing flexibility over the past 50 years. In respect of causation, the Court of Appeal had signalled doctrinal shifts which seemed designed to ensure that inflexibility in this area did not result in over-compensation for plaintiffs. That had been done in large part through distinguishing contractual and tortious breaches from fiduciary breaches, and distinguishing fiduciary breaches that did not involve the loss of trust property from those that did. A two-stage approach had been
adopted to fiduciary breaches that did not involve the loss of trust property. That effectively permitted a fiduciary to rebut the prima facie demonstration of loss through breach of the duty of loyalty by proof that the loss would have occurred regardless of the breach. Dr Maxton said that developments in relation to apportionment had reflected a growing willingness to question the historical limits of relevant remedies. In Day v Mead and Mouat v Clark Boyce, for example, the Court of Appeal had developed the concept of equitable compensation for breach of fiduciary duty by importing into it the concept that, where appropriate, plaintiffs should accept some liability for their losses. Finally, said Dr Maxton, as fiduciary liability expanded and commercial fraud flourished, banks and other commercial operators had required clarity about participatory liability in order to evaluate properly the risks of proposed transactions. The Court of Appeal had responded by introducing dishonesty into its approach to knowing assistance in a fiduciary breach.
Accident compensation and tort litigation Professor Stephen Todd of the continued over...
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University of Canterbury discussed accident compensation and tort litigation in the Court of Appeal. He said that the court had in early times taken some “false steps” when the focus for determining accident compensation cover was on whether the cause of action was within the purview of the act, and in relation to the scope of cover for mental injury. However, the decisions which were of continuing importance today could be recognised as soundly based and providing a coherent structure in support of the accident compensation scheme as a whole. They included Queenstown Lakes v Palmer, Wilding v Attorney-General, Brittain v Telecome Corporation of New Zealand, Childs v Hillock, Donselaar v Donselaar and Damiles v Thompson. Professor Todd said that it might be that the fundamental issues relating to the relationship between accident compensation and the common law had been largely resolved. However, even if that was the case, there would certainly be continuing disputes about other matters such as benefits, disentitling circumstances and dispute resolution processes. Legislative developments would continue to be driven by changing political sentiment. It was still possible that the grand idea of expanding the scheme so that it extended generally to incapacity by way of illness or diseases would one day be taken up again, although the probability was not high. A more limited reform would be to cover mental injury once more. The 2007 bill extending cover to mental injury in the workplace might portend some further widening, although that did not seem very likely either. It was also possible that a partial privatisation of the scheme by way of private delivery of statutory benefits might yet be reintroduced. Professor Todd concluded that the accident compensation scheme was a work in progress, and the Court of Appeal would continue to play a central role in helping to point the way. It had already made a very substantial contribution to the continuing health of the scheme.
Company law Professor Peter Watts of the University of Auckland Faculty of Law spoke about how the Court of Appeal had dealt with company law over
the fifty years. He said that the most obvious development to emerge from a review of fifty years of company law decisions was how redundant most of them now were. Cases which had been “beacons” had been superseded as new solutions had been sought to the problems with which company law had to deal. However, the most notable innovation of the period had been the new Companies Act in 1993.
“(A) more relaxed approach to the possibility of fiduciary obligations in commercial contexts did not necessarily involve challenges to the security of business transactions, nor need it lead to “floodgates” concerns.”
Take The Lead and Shape Your Future Seminar for Junior/Intermediate Litigators Thursday 10 July As part of its continuing focus on the needs of junior/ intermediate litigators, and particularly those practicing at the bar, the Council will be holding a half-day conference on Thursday 10 July which is a must for all junior/intermediate litigators – both those practicing at the bar and in firms. Confirmed speakers include to date: The Hon Justice Raynor Asher; His Honour Judge Fred McElrea; Alan Galbraith QC; Julian Miles QC; Paul Davison QC; Deborah Hollings QC; David Bigio and Gerard Curry. The focus of the seminar will be on four broad topics: • What a senior Barrister looks for in a junior – both in and out of Court. • Advocacy skills – what are some of the important skills and how to develop them. • Lifting one’s profile – how do you best do this? • Courtroom etiquette. On this last session, it is increasingly apparent to the Courts and the Bar Association that a number of junior/ intermediate litigators are not fully aware as they should be of the important do’s and don’ts in the Courtroom. This is an opportunity to hear from a number of leaders at the bar so mark your diaries now.
Professor Watts surveyed how the Privy Council had dealt with appeals on company law issues from the Court of Appeal, noting that, of 22 cases, 10 had involved reversals or cases in which a substantial part of the reasoning of the Privy Council was at odds with that of the Court of Appeal. He said that such a degree of disagreement could be expected, given that the Privy Council was 12,000 miles away, was in an expensive city, and clients would ordinarily seek an appeal only where counsel had advised that there were strong prospects of success. He noted that there had, as yet, been no significant company law appeals to the Supreme Court.
More details will be available shortly on the Association’s website or by contacting: Monique Pearson Executive Director New Zealand Bar Association PO Box 631 Shortland Street Auckland 1140 Phone: +64 9 303 4515 Fax: +64 9 303 4516
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INTERNATIONAL CONFERENCES
World Bar Conference 27 - 30 June 2008 The International Council of Advocates and Barristers is holding its 2008 World conference in Dublin and Belfast from 27 - 30 June 2008. The object of the Council includes the promotion and maintenance of the rule of law and the effective administration of justice – its focus falls on matters particularly important to the bar worldwide including the New Zealand Bar. Many imminent speakers will be addressing attendees, including the President of Ireland, Mary McAleese; Robert Fisk, Middle East Correspondent, Independent Newspapers UK; Paul Gallagher SC, Attorney General of Ireland; Justice Ruth McColl, Judge of the New South Wales Court of Appeal; Ms Beatrice Mtetwa, President of the Zimbabwe Law Society; and John Cooke, Judge of the European Court of First Instance to name only a few of the speakers. It promises to be an exciting conference and members can obtain information (or register and pay on line for the Conference) at www.worldbaronline.com
The Australasian Law Teachers Association Conference 6 - 9 July 2008 The theme for the 2008 Conference is: ‘The Law, the Environment, Indigenous Peoples: Climate for Change?’ The Conference will be held at the James Cook University, Cairns Campus which is only 20 minutes from the heart of Cairns. Topics include: Do ecologically sustainable development principles matter?; Challenges facing indigenous communities moving into the 21st century; Welfare reform; Individual versus communal property rights – future challenges for indigenous communities; achieving a sustainable climate for indigenous people in Australian Law Schools and Learning to feel like a lawyer – doing this with emotion in the classroom. The Conference Committee welcomes participation by all people with law related interests, including legal academics and members of the profession. More details are available on their website: http://www.jcu.edu.au/law/alta2008/
IBA Annual Conference 12 - 17 October 2008 The International Bar Association is holding its 2008 annual conference in Buenos Aires. The conference is the ideal opportunity for practitioners from every continent to meet and hear firsthand about legal developments in various jurisdictions. As the global voice of the legal profession, the IBA is uniquely qualified to gather delegates to exchange immensely valuable knowledge and expertise through the significant work of the specialist Committees. For further details about the programme or to register your interest, visit www.ibanet.org/conferences/ba2008
Australian Lawyers Alliance Annual Conference 16 - 18 October 2008 The ALA is holding its Annual Conference at the Langham Hotel in Auckland. To view confirmed sessions, visit the “Conferences and Events” page of their website: http://www.lawyersalliance.com.au/ To register your interest to attend this conference, send an email to conferences@lawyersalliance.com.au
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 from 10-12 December. To register, visit http://jointconference.law.cuhk.edu.hk/reg.php
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BAR CHAT New Bar Association members The Bar Association welcomes the following New Members to the independent bar and/or the Bar Association: AUCKLAND: Aaron Dooney, Carol Anderson, Christopher Eggleston, Christopher Wilkinson-Smith, Edward Leary, Gerard Curry, Gregory Blanchard, Johanna Robertson, Lucy Smith, Matthew Karam, Nicky Sinclair, Philip Wright, Robert Quin, Tracey Thorp, Vivienne Crawshaw, Dilki Rajapakse WHAKATANE: Rebecca Plunket TAUMARUNUI: Natasha Simpson CHRISTCHURCH: Alister James, Neville Thomas, Siobhan McNulty WELLINGTON: Jacqueline Kean OVERSEAS: Kailash Jhinga
Membership renewals 08/09 By now all members should have received their renewal notices. Please note that services provided by the Association and its third party suppliers are dependent on members being financial members of the Association. If you are unsure of the status of your membership, please contact the Association by email nzbar@nzbar.org.nz or phone (09) 303 4515. The Association will be minimising the number of paper notices to members. If your contact details have changed or you have not submitted an email address to us previously, please email your details to nzbar@nzbar.org.nz
Council meeting dates 19 June Video conference meeting 15 August Sydney 2 October Wellington 4 December Christchurch The Council is keen to hear from members of the Association and members should feel free to contact any of the Council members – or the Association – with any matters they would like raised on their behalf at Council meetings.
NZBA Branded executive folders Members can email nzbar@nzbar.org.nz to place an order for an executive compendium. The folder is manufactured in black soft grain koskin and is blind embossed with the New Zealand Bar Association logo. The purchase price is NZD60.00 and includes GST and postage.
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making a booking. Budget: Members should contact Reservations on 0800 Budget (0800 28 34 38) and quote the Association’s Budget Corporate Discount number BCD: E087534 for all enquiries. CCH: The telephone number to place an order or to enquire about their products is 0800 500 224. Filecorp: The telephone number for Hayley Egan is 09 827 9370 and her email address is hayleye@filecorp.co.nz Koru Club: Members can transfer their current individual membership to the Koru Corporate rate by simply advising the Koru Club operator that you are a NZBA member.
Upcoming events – have you RSVP’d yet? 13 June Event: Time:
NZBA/ADLS dinner in honour of Justice Anderson. The Northern Club – partners welcome 7:00pm for 7:45pm dinner
27 June Event: NZBA Junior Barrister function. The Mowbray Room, Bolton Hotel, Wellington Time: 5:30pm to 7:30pm 03 July Event: NZBA celebrates its 20th anniversary. Stamford Plaza Time: 5:30 to 7:30pm
Member benefits portfolio
10 July Event: Time:
Members are asked to note the following updates to the benefits portfolio:
15-16 Event: NZBA Annual Conference. The Amora Hotel, August Sydney
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17-23 Event: NZLS Litigation Skills Course. Christchurch August
Vodafone: David Herron is no longer with Vodafone. The Association’s new account manager is Raj and he can be contacted on 0800 4 DIGITAL. AVIS: The Association’s Avis Worldwide Discount (AWD) number is P441702. Please quote this number when
Take the lead and shape your future – a seminar for junior/intermediate litigators. 2:00pm to 5:30pm followed by a networking function
Details about these events are available on the Association’s website www.nzbar.org.nz
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2008 NZBA Bench and Bar Dinner This year’s Bench and Bar dinner was held on 1 May 2008 at the Northern Club.
around the country. Also in attendance was Stuart Pilkinton, the Hon Secretary of the ACT Bar Association.
It was a hugely successful evening with an inspired choice of guest speaker - The Hon Justice Mark Cooper – who delivered an interesting and entertaining after dinner address.
Next year’s dinner will be held in Christchurch and we will advise members of full details closer to the time.
There was a very good attendance of Judges from many different Courts and a good cross-section of barristers from
His Honour Judge de Jong, Matthew Ward-Johnson
His Honour Judge Wilson QC, Antonia Fisher
The Hon Justice Courtney, David Bigio
Stuart Pilkinton (ACT Bar), The Rt Hon Chief Justice Dame Sian Elias GNZM
Kit Toogood QC, Her Honour Judge Mathers
The Hon Justice Wylie QC, Gillian Coumbe
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“A hugely successful evening with an inspired choice of guest speaker.”
Jim Farmer QC, Miriam Dean QC, The Hon Justice Cooper
Blair Keown, Stuart Grieve QC, Phillip Rice
Christopher Gudsell QC, Marian Hinde
Philip Rzepecky, Mary-Anne Lowe, Nicholas Till QC
Michael Ring QC, David Bigio
Paul Dale, Eb Leary, Charles Cato, John Mather
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New Zealand Bar Association Council Summary of Meeting Minutes The Council met on Thursday, 28 February 2008 at 11.30 am at the Bolton Hotel, Wellington. In attendance were Jim Farmer QC, Chris Gudsell QC, Colin Carruthers QC, Miriam Dean QC, Tony Hughes-Johnson QC, Stephen Mills QC, Jonathan Eaton, Terry Sissons, Ken Johnston, Kate Davenport, Trevor Shiels, David Bigio and Lauren Lindsay. Apologies received from Elliott Hudson and Matthew Ward Johnson. Due to timing and the gap between the last meeting in 2008 and the first meeting in 2009, the Council agreed that the following dates be added to the meeting calendar - Thursday, 2 October 2008 (Wellington) and Thursday, 4 December 2008 (Christchurch). Jim Farmer reported on his and Terry Sissons’ attendance at the ABA Council meeting in December 2007. He mentioned that the meeting was highly worthwhile and noted that the Sydney conference would strengthen the NZBA relationship with the NSW Bar. Trevor Shiels spoke to the financial accounts. He commented that the current financial status was healthy. In an effort to reduce travel time and expenses, the Council agreed to trial a video conference for its 19 June meeting.
The Council discussed the future of the NZBA. Terry Sissons circulated a memo and discussed his meeting with Stephen Hare of the Victorian Bar Association which centred on challenges currently faced by the Victorian Bar, activities that the Victorian Bar Association is involved in, and their future prospects. The Council appointed a Strategic Plan Committee comprising Terry Sissons (chair), Colin Carruthers, Stephen Mills, David Bigio, Lauren Lindsay and Monique Pearson. The Committee was tasked with developing a framework for a 5-year strategic plan. The Council discussed (a) a proposed barristers’ course and reading programme; and (b) a training model for junior barristers, both of which would form an integral part of the strategic plan. The Training Committee was asked to develop a framework for a barristers’ course with particular emphasis on the skills that a barrister needs to practice effectively at the bar. Once the Committee had agreed on the skills required they would need to determine whether any other course which all lawyers have to undertake to gain admission could be incorporated into the course. Once the Training Committee had determined what junior barristers need to learn they would need to look into
the best teaching methods, including interactive computer based learning, as some skills may be learned most effectively by demonstration and practice whereas others may be learned better by studying. John Marshall QC, President of the New Zealand Law Society, attended part of the Council meeting. Topics discussed included an update on the draft Rules of Conduct and Client Care, the Intervention Rule and the dispensation provision with regard to the Intervention Rule, barristers’ training, CLE, and the idea of a future joint conference. Jim Farmer expressed his thanks to John Marshall for his valuable contribution to the meeting. Miriam Dean spoke to her report on the NZBA/LRF joint conference. A number of requests have been received from speakers and delegates to follow up the conference with proposals as to where to from here. [The Organising Committee has since written to all conference delegates summarising the various proposals and themes emerging from the conference and requesting comments and feedback. Responses will be forwarded to the Legal Issues Centre which, with its endowment from the Nelsons and the Government, is tasked to consider reforms of the civil legal system. The Committee will maintain contact with the Centre to ensure the discussion and debate generated by the conference continues.] Jim Farmer expressed his thanks on behalf of the NZBA for the Committee’s hard work, in particular, Miriam Dean. Kate Davenport spoke to her memo about the annual conference which outlined the options for the venue and preliminary costs as well as a proposed programme. The conference organiser in Sydney will organise all of the Australian attendances and Monique Pearson will register the NZBA members. A discussion followed about the venue; how many rooms we should book; cost for NZBA and Australian attendees; speakers and sessions.
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Barristers Governed By New Rules of Conduct Barristers will be subject to new rules of professional conduct when the Lawyers and Conveyancers Act takes effect, which is expected to be in August 2008. The current Rules of Professional Conduct for Barristers and Solicitors will under the future regime be replaced by completely new Rules of Conduct and Client Care for Lawyers. The rules were prepared following a consultation process which commenced with the production of draft rules by Professor Duncan Webb of the University of Canterbury. After feedback on the draft, amendments were made and a further draft was in February 2008 approved by the New Zealand Law Society for submission to the Minister of Justice. Chapter 14 of the rules deals with barristerial practice. The major change between the final draft and the original is that Professor Webb had proposed that the intervention rule should largely be abolished. Professor Webb’s draft stated that barristers would be able to take instructions either from solicitors or directly from lay clients. Barristers would not have been able to accept instructions from lay clients if it was in the interests of the client to require the intervention of an instructing solicitor, or if an instructing solicitor was needed to ensure adherence to obligations to the court. Further situations in which direct instructions would have been prohibited would have been if there was a risk that a barrister accepting direct instructions might be required to act as a witness in the matter, or the work required was not barristers’ work under the rules. However, following the consultation process, Professor Webb’s draft was replaced by new provisions. These are set out in Rule 14.4, which states that, subject to Rules 14.5, 14.6 and 14.7, a barrister sole must not accept instructions to act for another person other than from a person who holds a practising certificate as a barrister and solicitor. Rule 14.5 specifies the circumstances in which a barrister sole may accept instructions from a person who does not hold a practising certificate. The situations largely mirror those set out in the current rules, and include cases in which the barrister is
instructed to act in a judicial or quasijudicial capacity, is appointed by the court, is instructed by the Law Society, or is assigned to a legally-aided person or is acting as a duty solicitor. Other exceptions include situations in which the barrister is acting as a specialist adviser to the Legal Services Agency, is providing advice under a Detention Legal Assistance Scheme, or is representing a prisoner in an internal disciplinary hearing. Rule 14.6 contains a new provision permitting the Law Society, in consultation with the Ministry of Justice and the New Zealand Bar Association, to
“In deciding whether to grant a dispensation, the Law Society is required to take into account the public interest and the interests of consumers.” grant a specific or general dispensation authorising barristers sole, any category of barristers sole or any individual barrister sole to accept instructions from persons other than those holding a practising certificate. In deciding whether to grant a dispensation, the Law Society is required to take into account the public interest and the interests of consumers. Rule 14.7 states that a dispensation granted by the Law Society may be subject to such terms and conditions as the society considers appropriate, including any requirements in relation to the keeping of a trust account and compliance with the Lawyers and Conveyancers Trust Account Regulations. It is not yet clear in what circumstances a dispensation
might be granted. Rules 14.8 to 14.12 set out general provisions relating to barristers sole. Rule 14.8 states that barristers sole must not do anything to induce a person to suppose that the barrister retains a connection with a practice of which he or she was previously a member. Barristers must not have arrangements restricting the complete freedom of a lawyer holding a practising certificate as a barrister and solicitor to instruct any counsel the lawyer or client selects. However, Rule 14.9.1 provides that this does not affect the right of a barrister to accept a general retainer from a client holding a practising certificate as a barrister and solicitor on behalf of a particular client. The rules also state that barristers must keep their instructing lawyers reasonably informed of the progress of briefs. Normal relations between instructing solicitors and barristers require the latter to seek the consent of the former before interviewing clients or witnesses. Correspondence between parties on matters relating to litigation should normally be carried out between the instructing barristers and solicitors. Rule 14.12 provides that barristers should not normally file documents in court, or in the course of proceedings, which show their chambers as the address for service. However, the rule states that there may be exceptional circumstances in which it is practicable and necessary to do so. Exceptions would be where the barrister was not instructed by a solicitor in accordance with Rule 14.5, or acted under a dispensation granted under Rule 14.6. The bulk of the rules deals with general obligations owed by all lawyers in the conduct of their practices. The rules are based on the fundamental obligations of practitioners set out in section 4 of the Lawyers and Conveyancers Act. These provide that lawyers must uphold the rule of law and facilitate the administration of justice in New Zealand. Lawyers must also be independent in providing regulated services to clients, and act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients. Lawyers are required to protect, continued over...
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Barristers Governed By New Rules of Conduct cont... subject to overriding duties as officers of the High Court and to duties under any enactment, the interests of clients. The notes to the rules state that the rules are not an exhaustive statement of lawyers’ conduct. Rather, they set the minimum standards which lawyers must observe and are a reference point for discipline. A charge of misconduct or unsatisfactory conduct may be
brought and a conviction may be obtained despite the charge not being based on a breach of any specific rule, or on a breach of some other rule or regulation made under the act. In addition to the rules, the Law Society has prepared draft Incorporated Law Firm Regulations and Lawyers Complaints Service and Standards Committee Regulations.
Best Practices in Litigation by Clive Elliott The recent joint Bar Association/Legal Research Foundation “Litigation in Crisis” conference remains a talking point. Even so, it is not entirely clear how to capture the benefits of the discussion and ensure that practical outcomes arise. It is also fair to say that if Jack Hodder’s comment that the civil justice system had all but lost the confidence of the commercial community is shared by others, then all is not well. Having said this, it is always possible, when considering our relative performance in this area, to look around and say that things are not really that bad at all. For example, one need look no further than the United Kingdom where the Commercial Court has recently come in for rather serious criticism for the way it handled the BCCI case. The case was discontinued after the claimants abandoned their claim. The problem is that this was after 13 years of litigation and 256 days into the trial. This in turn was after something in the order of 63 days of interim hearings and a costs bill of “Bank of England” proportions, and reputed to be in the order of £80 million -see Three Rivers District Council and others v Bank of England [2006] EWHC 816 (Comm). This resulted in the case being labelled everything from a farce
to a colossal wreck - see “A Colossal Wreck - The BCCI – Three Rivers Litigation” C.J.Q. 2006, 25(JUL), 287311. No-one would suggest that we in New Zealand have, or indeed ever could, descend to these levels of excess. However, we are not alone in recognising the need to reassess and streamline our court system. In October last year I attended a session at the International Bar Association conference in Singapore. The session “Best Practices in IP Litigation in the Courts for the Resolution of Local and Cross-Border Disputes” was a joint session between the Intellectual Property & Entertainment Law Committee of the IBA and the Faculty of Law of the National University of Singapore. It comprised a panel discussion comparing and contrasting the best practices of various jurisdictions in handling intellectual property disputes in the courts and with a particular focus on the Asia Pacific region. The session was chaired and moderated by Her Honour Justice Annabelle Bennett of the Federal Court of Australia and included two other judges from the region - Judge Reynaldo Bautista Daway of the IP and Commercial Court in the Philippines and His Honour Justice
Lee Seiu Kin of the Supreme Court of Singapore. The panel’s discussion covered a wide range of topics, including the benefits and detriments of courts of general jurisdiction versus specialised IP courts, and the importance of specialised practitioners as compared to general practitioners. It also dealt with practical trial issues such as trying to narrow the issues early in the case, the merits and demerits of discovery, and the advantages and disadvantages of particularised pleadings that focus on the real issues in dispute as compared with boilerplate-type generalised allegations. This was followed by the inevitable debate about having complex disputes, such as technical patent cases, resolved by lay juries instead of trained judges. It was clear from this discussion that a range of opinions exists as to which practices and procedures are optimal, and that there is no such thing as a “perfect” system. What is, however, interesting is the areas of agreement that became evident, including that cost was a major concern in most jurisdictions and that discovery should be limited and carefully controlled by the court, rather than being permitted to be continued over...
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2007-2008 Council contact details JAMES FARMER QC - President Ph: +64 9 358 7090 Fax: +64 9 358 7091 P O Box 1800, Auckland jamesfarmer@queenscounsel.co.nz
Best Practices in Litigation cont... wide-ranging and unfettered. This became all the more evident from some of the “war stories” from United States’ practitioners who felt that the process was commonly abused. The consensus was that a solution was available to counter this trend, but it required the courts to be more active and to more closely supervise the process. An interesting dynamic that emerged was that, overall, the adversarial system found support among participants. By the same token, it was felt by many that, for the adversarial system to work properly, issues needed to be narrowed to ensure that the issues truly in dispute were dealt with, and that these were identified as early as possible in the proceedings. Generally, most participants endorsed an active role by the judiciary in ensuring that this occurred, as long as it did not limit the ability of advocates to present their cases. Another interesting aspect of the session was that there was an almost universal expression of support regarding the importance of an experienced and engaged judiciary. Judge Daway strongly favoured a specialised court, such as his, and Justice Kin saw benefits from experienced judges handling these specialised cases. The utility of our “written briefs of evidence” regime remains a perennial topic of discussion in New Zealand. This issue was also discussed, albeit in a somewhat broader context. The general consensus was that there were clear benefits in having evidence presented in writing, as long as there was some opportunity for oral presentations in addition to cross-examination. More specifically, some practitioners expressed the view that efficiencies arise through presenting evidence in writing. However, others felt that there should also be a brief opportunity for witnesses to summarise their written testimony orally before being confronted by crossexamination. In other words, it was felt that if witnesses were able to provide a brief oral summary or statement, this would allow them to articulate their thinking in their own words; both
summarising their position and allowing them to settle into the role as a witness. This seemed to be an interesting compromise between wholly written and wholly oral evidence and it is an option that might be worth considering. Clive is a registered patent attorney and barrister. He is a Council member of the Legal Practice Division and past co chair of the Intellectual Property and Entertainment Law Committee of the International Bar Association. He is a vice president and member of the management board of the Intellectual Property Society of Australia and New Zealand (IPSANZ), co convenor of the Intellectual Property Committee of the New Zealand Law Society the convenor of the Technology and Law Committee of the Auckland District Law Society. He is a co-author of the Lexis Nexis loose-leaf texts Copyright and Design, Electronic Business Law and the chapter on Computer Contracts in Lexis Nexis’ New Zealand Precedents. He has for some years been a part time lecturer in the post-graduate Masters course at both the Department of Law and the Department of Commercial Law at Auckland University and recently taught the course “Selected Aspects of IP”.
MIRIAM DEAN QC - Vice President - Auckland Ph: +64 9 377 8959 Fax: +64 9 377 8960 P O Box 4111, Auckland miriam@barrists.co.nz STEPHEN MILLS QC Ph: +64 9 307 9820 Fax: +64 9 307 1572 P O Box 4338, Shortland Street, Auckland stephen.mills@shortlandchambers.co.nz KATE DAVENPORT Ph: +64 9 307 8787 Fax: +64 9 307 8788 P O Box 141, Shortland Street, Auckland kate@katedavenport.co.nz DAVID BIGIO Ph: +64 9 354 1404 Fax: +64 9 307 1572 P O Box 4338, Shortland Street, Auckland dbigio@shortlandchambers.co.nz LAUREN LINDSAY - Junior Barrister Representative Ph: +64 9 307 8771 Fax: +64 9 307 8772 P O Box 770, Shortland Street, Auckland lauren@laurenlindsay.co.nz CHRISTOPHER GUDSELL QC - Vice President Regions Ph: +64 7 839 3290 Fax: +64 7 834 0587 P O Box 19085, Hamilton ctgudsell@xtra.co.nz ELLIOT HUDSON Ph: +64 7 839 6644 Fax: +64 7 839 6610 P O Box 19252, Hamilton elliothudson@xtra.co.nz MATTHEW WARD-JOHNSON Ph: +64 7 579 0408 Fax: +64 7 579 0404 P O Box 13561, Tauranga matthew@wardjohnsonlaw.com TREVOR SHIELS Ph: +64 3 477 4030 Fax: +64 3 477 7320 P O Box 1219, Dunedin trevor.shiels@barristerschambers.co.nz TONY HUGHES-JOHNSON QC Ph: +64 3 365 2158 Fax: +64 3 365 7273 P O Box 286, Christchurch achj@xtra.co.nz
I am pleased to announce my move to Shortland Chambers My new details are: P O Box 4338, Shortland St, Auckland Ph: 309 1769 Fax: 307 1572 Email: DBigio@shortlandchambers.co.nz
JONATHAN EATON -Vice President - South Island Ph: +64 3 372 3466 Fax: +64 3 365 2592 P O Box 13-868, Christchurch j.eaton@.bridgesidechambers.co.nz COLIN CARRUTHERS QC -Vice President - Wellington Ph: +64 4 471 4275 Fax: +64 4 471 1195 P O Box 305, Wellington crc@crcarruthers.co.nz KEN JOHNSTON Ph: +64 4 471 2727 Fax: +64 4 499 4620 P O Box 5058, Wellington k-johnston@clear.net.nz TERRY SISSONS Ph: +64 4 471 1380 Fax: +64 4 499 8795 P O Box 23063, Wellington terry.sissons@xtra.co.nz 13
Final thoughts from this Junior Barrister RECENT EVENTS Inaugural Sentencing Advocacy Competition
As my term as the junior barrister representative comes to an end (postgraduate study beckons), there is much to reflect upon. In the last 18 months, the NZBA has developed some outstanding initiatives for junior barristers. The mentoring programme has been launched. Professional development seminars aimed at improving a junior’s management of his/ her practise are set to take place. The website is available as a tool for junior barristers to convey their work capacity to other barristers and instructing solicitors. The NZBA is developing a comprehensive training regime which will better equip junior barristers for life at the bar and work in with the soon to be commenced Lawyers and Conveyancers Act. And, last but not least, junior barrister social functions have become (and shall remain) a regular feature in the NZBA calendar.
The first of its kind in the world, the sentencing advocacy competition was devised by last year’s High Court judges’ clerks to meet the need for better sentencing advocacy in New Zealand courts. The competition was coordinated by the judges’ clerks in conjunction with the competitions officers from the Auckland law school and allowed law students to argue a hypothetical sentencing scenario in front of currently sitting High Court judges in courtrooms of the Auckland High Court at each of the 3 stages of the competition. The finalists, Sally Trafford (winner) and Jennifer Devlin (runner up) appeared before Heath and Williams JJ on the evening of 27 March 2008, arguing over the sentence of a man convicted of motor-manslaughter. At the post-competition drinks held in the Judges’ Common Room, Winkelmann J commended the judges’ clerks for their stunning organisational (and catering) efforts and informed us that the event would be nationwide in 2009. Bench and Bar Dinner on 1 May 2008 at the Northern Club Arriving to find out that I was at the Chief Justice’s table was an unexpected beginning to what turned out to be a fantastic evening. The dinner was well attended and the after dinner speaker, Justice Mark Cooper, was both funny and thought-provoking. It was pleasing
to see other juniors in attendance who agreed that the evening was an excellent opportunity to trade war stories with more senior members of the profession and pick the brains of some colourful characters.
UPCOMING EVENTS Wellington Junior Barrister Function This function follows on from the Auckland function held last year. The function, which is designed to be a “meet and greet” of sorts, will take place on Friday 27 June 2008 at the elegant Bolton Hotel, on the corner of Mowbray and Bolton Streets from 5.30pm. The function is open to members and nonmembers alike who are in the 0-3 post admission category as well as associate members from the Crown. Wellington based members of the Council and senior Wellington barristers shall be in attendance so don’t miss out. The event is RSVP only so please send me an email: lauren@laurenlindsay.co.nz by Wednesday 18 June if you wish to attend. I look forward to seeing you there. Annual Conference The annual conference will be held on 15-16 August in Sydney. “A Global Approach to Law – Life as a Barrister in the 21st Century” is a highly relevant theme for juniors, especially those who are interested in expanding their practices into the Australian market. Conferences are excellent investments in your business: you expand your legal knowledge, you meet new people (not continued over...
The Council of the New Zealand Bar Association would like to congratulate Lauren Lindsay, the Association’s Junior Barrister Representative, on receiving a William Georgetti Scholarship to help fund a year of postgraduate study at the European University Institute (EUI) in Florence, Italy, beginning end August 2008. The William Georgetti is awarded for research in a field which, in the opinion of the scholarship board is “important to the social, cultural or economic development of New Zealand”. Lauren is the first New Zealander and one of eleven students who will read for the LLM in International, Comparative and European Law at the EUI. Her thesis will be in the general area of biotechnology and the law and is intended to examine European models for regulating biotechnological research and to investigate their potential application in New Zealand. She is particularly interested in the areas of pre-implantation genetic diagnosis and genetic screening of children below the age of consent.
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Final thoughts from this Junior Barrister cont... only potential work providers but leading jurists from around the world) and you get to have that much earned break from work (turn the weekend into a one-week holiday). Should you wish to keep costs down, there is the possibility to share a room which is something I did last year and worked well. Professional development seminar for jubes The first (of many) NZBA seminars aimed at assisting jubes with their professional development will take place on 10 July 2008. The afternoon seminar will be an excellent and affordable opportunity for juniors to learn from senior barristers about court etiquette and lifting your profile. The price of the seminar includes a networking drinks function at 5.30 which will provide juniors with a further
opportunity to ask questions of their more experienced counterparts. Mark your diaries and keep an eye out for further information on the website over the next few weeks.
reasons for your interest to Monique Pearson (PO Box 631, Shortland St). If you would like more information before applying please send me an email.
Website
I would like to finish my column by saying that I have thoroughly enjoyed my time as the junior barrister representative. I had very little idea when I started what would be involved and I have been constantly surprised and often delighted by the numerous opportunities that the position has opened up for me. It has been a pleasure to be on the NZBA Council with such well respected individuals and to represent the junior bar. Overall, it has been a challenging and highly rewarding experience and I shall miss it. Lauren Lindsay
Final musings
As mentioned in my emails to the junior barrister membership in the past, I would encourage you to forward your details to Monique Pearson to place on the website so that other barristers and instructing solicitors can see your current work capacity when they are looking for a junior barrister. Junior Barrister Representative If you are interested in putting your name forward for the jube representative position, please forward a copy of your CV and a cover letter outlining the
The following article has been reprinted with the kind permission of the author, Cameron Timmis, and Counsel magazine, the Journal of the Bar of England and Wales
A Different Mindset In a changing world, barristers have to be prepared to sell themselves says Cameron Timmis With less work around and the number of barristers continuing to rise, competition at the Bar has become intense. Solicitors too are encroaching on the Bar’s traditional turf. In this climate, just being good at your job may no longer be good enough. With clients becoming much choosier over whom to instruct, barristers today have to get noticed. In a dog-eat-dog world, say marketing experts, barristers have to be prepared to sell themselves. Time was when barristers could sit back, relax and wait for the next brief to turn up. But those days are “well and truly gone,” says Ann Buxton, chief executive of Hardwicke Building chambers. Clients today she says must be treated like “gold dust” and that means marketing has to part of a modern barrister’s “mindset”.
Personal marketing plans
What’s important for barristers to realise, says Buxton, is that the onus for marketing rests not only on the clerks and marketing department but also on barristers as individuals:
“It’s tremendously important for them [barristers] to feel responsibility for marketing. He or she will need to have a mini-marketing plan. They need ro do everything an organisation needs to do - work on their profile, their client relationships, and how they will take their practice forward.” Joanna Poulton, chief executive at Landmark Chambers, also believes marketing has become a key weapon for barristers to gain a competitive edge. While in the past, barristers could have relied on an impressive CV to get instructions, today, she says, solicitors take this as a “given”. As a result, even the brightest barristers have to market themselves to get noticed. “It is not enough to think, if you turn the work around, that is the best marketing,” she says: “That will not get you to stand out from the crowd.” Barristers today she says have to “buy into” the concept of marketing. “It has to become part of their ethos.”
Not everyone is in the same boat: most agree that there are a “few stars” whose reputation or ability is such that they don’t need to worry about marketing-they will always be guaranteed work. But for the majority, this does not apply. Like it or not, barristers today have to be touting for business, not sitting in ivory towers.
A new era
Unfortunately, according to Carolyn McCombe, chief executive of 4 Pump Court chambers, many barristers still don’t accept this. Partly, she says this reflects the fact that until recently barristers were largely prohibited from conducting any marketing, so they still regard it with suspicion. But she also finds that “as a breed” barristers “don’t iike the concept of marketing.” This is particularly the case at the “senior” end of the profession, she says. “There are a lot of people who find marketing themselves very difficult...and fairly unpalatable. Most are making a real effort, but I don’t think it comes easily.”
continued over...
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A Different Mindset cont... Carolyn McCombe says her preference is for “smaller, targeted events” where “people really talk to each other,” rather than “just sending anyone out to firms you don’t know well.” As well as attending events organised by Chambers, she says barristers should always be looking to take the initiative, for example, writing articles for law journals, having lunch or drinks with a client at the end of case, and following up with solicitors who they haven’t heard from in a while What will not be effective, she says, is the ‘hard sell’ approach. “Solicitors are a very sophisticated market and are very experienced... it’s got to be a very light touch... it could be counterproductive if it smacks of desperation.”
Putting the customer first
Gerard Hickie, chief executive of Littleton Chambers, who has a background in the consumer goods industry, offers a different perspective. What he finds is often lacking at the Bar is proper knowledge of what he calls ‘the customer.’ “Practitioners should be aware of what’s driving clients and what is their overall strategy...this is one of the first things we encourage. If a particular client has a goal which is completely at odds with the type of service our practitioners can provide, that will have
Marketing in a crowded market: what works best? Joanna Poulton, chief executive at Landmark Chambers • • •
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The most important thing is to make sure you are in the right environment to meet the right client (not everybody thinks going down the Thames on a disco barge is a great idea!). Some barristers are better at talks, some are at better at socialising and some are better in one-to-one client situations Above all marketing must be approached in a sophisticated way. The days of having a few pints at lunchtime with a client and then waiting for a brief to appear don’t happen any more. Solicitors are much savvier about marketing because they have to do it too.
implications for the way he relates with that firm and the instructing solicitors.” For example, says Hickie, “we will be reviewing all our seminars and lectures to make sure they deliver more value than they have done in the past.” Derek Jenkins, business development director at Outer Temple chambers, advises barristers to be constantly on the lookout for new market opportunities, particularly when some areas of work are contracting: “If you can’t move with the times you are going to wither and die, things are moving very quickly and fluidly,” he says.
Innovative steps
One example of a new opportunity that has been grasped at Outer Temple, says Jenkins, is regulatory work in the financial services industry. A number of junior barristers at his chambers have been instrumental in setting up the new Financial Services Lawyers Association, which in turn has led to training seminars, and more instructions in this area: the chambers is currently involved in the first two prosecutions to be brought by the Financial Services Authority. Another excellent marketing opportunity, says Jenkins, comes in the form of secondments. As well as having seconded two members to the FSA, his chambers currently
has barristers on secondment to the Pensions ombudsman and with City law firms CMS Cameron Mckenna and Lovells. “The great thing about secondments,” says Jenkins “is that they give barristers knowledge of how solicitors work and solicitors can see the quality of a barrister’s work.” As a result, he says, “the work will follow them.” Marketing is not something that only senior members of chambers get involved in, says Jenkins - “barristers need to make their mark as early as they can” and are encouraged to join more senior members of counsel on pitches to clients, for example. And how much time should barristers spend on marketing? “It’s a constant activity,” says Ann Buxton, who notes that partners in solicitors’ firms spend up to 20 percent of billable hours on business development. Likewise, she says, barristers should be devoting a “reasonable amount of time” to their marketing activities: “It would be a pity if every week a barrister wasn’t doing some marketing, even sending an email that might take 25 seconds.”
THE NZBA ANNOUNCES ITS FIRST INTERNATIONAL CONFERENCE 15, 16 August 2008 I The Amora Hotel I Sydney I Australia
A Global Approach to Law Life as a Barrister in the 21st Century Friday 15 August 2008 5:30pm – 8:30pm Welcome cocktail function at the Amora Hotel Saturday 16 August 2008 9:00am – 5:00pm NZBA annual conference 5:00pm – 5:30pm Pre-AGM drinks 5:30pm – 6:15pm Annual General Meeting 7:30pm – 11:30pm Formal dinner at the Museum of Contemporary Art After dinner speaker: The Honourable Justice Michael Kirby Conference Programme Outline Welcome Session 1 Session 2 Session 3 Closing
James Farmer QC, President of the New Zealand Bar Association The changing face of a barrister’s practice – issues facing the bar in the 21st century The internationalisation of litigation – class actions, trans-Tasman and international regulations International dimensions of legal practice: Part I Global regulation of markets – international sports law – the effect of cyberspace Part II How to develop an international practice with particular reference to trans- Tasman legal practice Anna Katzmann SC, President of New South Wales Bar Association Conference Speakers The Honourable Justice Gyles AO James Farmer QC John Marshall QC Gerard McCoy QC (Hong Kong) David Goddard QC Kit Toogood QC Stephen Mills QC
THE NEW ZEALAND BAR ASSOCIATION
TEL: +64 9 303 4515
The Honourable Justice Sackville Tom Bathurst QC Bret Walker SC Michael Slattery QC David Shavin QC Clive Elliott
EMAIL: nzbar@nzbar.org.nz WEB: www.nzbar.org.nz 17
Registration information
REGISTRATION: Registration for the conference is NOW OPEN. Registration is for the welcome function, conference, formal dinner and accommodation only and does not include travel bookings. Registration information: 1. Please read all the information carefully and make your airline bookings if you have not already done so. 2. Please select the appropriate option for the conference being held at the Amora Hotel, 11 Jamison Street, Sydney on 15, 16 August 2008. 3. Complete the registration form and return it along with your payment by Tuesday, 15 July 2008 to the New Zealand Bar Association, P O Box 631, Shortland Street, Auckland, 1140. 4. Full payment must be received by the Association before registration can be confirmed. 5. Please note that all prices quoted on these forms are zero-rated for New Zealand GST. Conference and functions: 1. Please note the conference and AGM are for Bar Association members only. 2. Partners are welcome to attend both the informal welcome function at the Amora Hotel and the formal dinner at the Museum of Contemporary Art. Accommodation: 1. The venue is the Amora Hotel, 11 Jamison Street, Sydney, Australia Tel: 0061 2 9696 2500 Fax: 0061 2 9696 2600 Website: www.amorahotels.com 2. The Bar Association has reserved a total of 40 rooms. Thirty days prior to arrival (15 July), 50% of unused rooms will be released. Fourteen days prior to arrival (1 August), all unused rooms will be released. Please contact the New Zealand Bar Association for enquiries about accommodation outside of the conference dates. 3. Room rates are based on single/twin or double occupancy and include a buffet breakfast in the Gallery Restaurant only. Hotel guests have complimentary use of the gymnasium, pool and sauna. 4. With relation to the Twin Share Option, please pre-arrange with a member to share a room with that person prior to sending in your registration. 5. Check-in time at the Amora Hotel is 2.00 pm. Check-out time at the hotel is 11.00am. 6. Members will be personally responsible for payment of any incidental expenses incurred at the Amora Hotel on their behalf, for example, telephone, facsimile, mini bar, room service, etc. Cancellations: As reasonable notice needs to be given to the Amora Hotel no refunds will be given for cancellations received after 30 July 2008. If you are unable to attend, a substitute member of the Association is welcome at no extra charge. Privacy policy: By registering for this conference, relevant details will be held by the New Zealand Bar Association and The Meetings Manager Pty Ltd. A delegate list will be provided to all conference participants (name and Bar Association only). Information may also be made available to parties directly related to the conference, including sponsors. If you do not wish your information used in this manner please email us on nzbar@nzbar.org.nz.
THE NEW ZEALAND BAR ASSOCIATION 18
TEL: +64 9 303 4515
EMAIL: nzbar@nzbar.org.nz WEB: www.nzbar.org.nz
Conference Packages All fees and charges quoted are in New Zealand dollars and are zero-rated for New Zealand GST.
WEEKEND PACKAGES (INCLUDING ACCOMMODATION)
SATURDAY ONLY PACKAGES (INCLUDING ACCOMMODATION)
F Single
A Single
Friday evening cocktail function
Saturday conference
Friday and Saturday single room accommodation
Saturday pre-AGM drinks and canapés
Saturday and Sunday breakfast
Saturday formal dinner
Saturday conference
Saturday single room accommodation
Saturday pre-AGM drinks and canapés
Sunday breakfast
Saturday formal dinner
B Partner
Friday evening cocktail function
Saturday pre-AGM drinks and canapés (members only)
Friday and Saturday double room accommodation
Saturday formal dinner
Saturday and Sunday breakfast
Saturday double room accommodation
Saturday conference (members only)
Sunday breakfast
Saturday pre-AGM drinks and canapés (members only)
Saturday formal dinner
Delegate Rate $1500.00
Delegate Rate $1070.00
G Partner Delegate Rate $1850.00
Delegate Rate $1300.00
Saturday conference (members only)
H Twin Share (two members sharing)
Delegate Rate $920.00 ea
Saturday conference
C Twin Share (two members sharing)
Friday evening cocktail function
Saturday formal dinner
Friday and Saturday twin-share room accommodation
Saturday twin-share room accommodation
Saturday and Sunday breakfast
Sunday breakfast
Saturday conference
Saturday pre-AGM drinks and canapés
Saturday formal dinner
WEEKEND PACKAGES (NO ACCOMMODATION)
D Single
Friday evening cocktail function
Saturday conference
J Partner
Saturday pre-AGM drinks and canapés
Saturday conference (members only)
Saturday formal dinner
Saturday pre-AGM drinks and canapés (members only)
Delegate Rate $1200.00 ea
Saturday pre-AGM drinks and canapés
SATURDAY ONLY PACKAGES (NO ACCOMMODATION)
I Single
Delegate Rate $650.00
Saturday conference Saturday pre-AGM drinks and canapés Delegate Rate $850.00
Saturday formal dinner Delegate Rate $850.00
Saturday formal dinner
E Partner
Friday evening cocktail function
Saturday conference (members only)
Saturday pre-AGM drinks and canapés (members only)
Saturday formal dinner
Delegate Rate $1130.00
THE NEW ZEALAND BAR ASSOCIATION
CONFERENCE ONLY
K Single conference
Delegate Rate $450.00
Saturday conference Pre-AGM drinks and canapés
TEL: +64 9 303 4515
EMAIL: nzbar@nzbar.org.nz WEB: www.nzbar.org.nz 19
Registration Form
Tax Invoice
GST No. 53-426-530
Please register me for the New Zealand Bar Association conference to be held at the Amora Hotel, 11 Jamison Street, Sydney, on 15-16 August 2008. I understand that on receipt of this form and my payment the New Zealand Bar Association will make the necessary bookings for me as stated under my selected option. I accept I will be personally responsible for payment of any incidental expenses incurred at the Amora Hotel, on my behalf, for example telephone, facsimile, mini bar, room service, etc. I also accept that I will be personally responsible for any accommodation and meal expenses outside of those offered in the conference packages. 1. I select Option _____________________ and enclose my cheque in the sum of $ _____________________________ (enter relevant number) (I acknowledge that the above sum is zero-rated for New Zealand GST) 2. Name:
______________________________________________________________________________________ Title
First Name
Surname
3. Name badge ______________________________________________________________________________________ to read: Title First Name Surname 4. Address:
______________________________________________________________________________________
______________________________________________________________________________________
Telephone:
_________________________________ Facsimile: __________________________________________
Email:
______________________________________________________________________________________
4. I wish to share a room with __________________________________________________________________________ (Print name and telephone number of nominated person)
5. If you intend bringing your partner to Sydney, please fill in the following:
Name of partner: __________________________________________________________________________________
6. Please retain a copy of this form for your own records.
Payment options If paying by cheque: The registration form and your cheque made out to New Zealand Bar Association should be sent to P O Box 631, Shortland Street, Auckland by TUESDAY, 15 JULY 2008. If making direct payment: The registration form and your bank transfer receipt should be sent to P O Box 631, Shortland Street, Auckland or by fax to (09) 3034516 or email to nzbar@nzbar.org.nz by TUESDAY, 15 JULY 2008. Please remember to quote your name as the reference. Account Holder: Bank & Branch: Account No:
New Zealand Bar Association ANZ Bank, 126 Queen Street, Auckland 010297 0253008 00
THE NEW ZEALAND BAR ASSOCIATION 20
TEL: +64 9 303 4515
EMAIL: nzbar@nzbar.org.nz WEB: www.nzbar.org.nz