At the Bar June 2009

At The Bar

June 2009

Divergent NZBA Views on Written Briefs and Proposed Rule Changes A divergence of views existed within the New Zealand Bar Association as to the issue of written briefs and associated problems and no single NZBA or NZBA Council view could be put forward, NZBA president Colin Carruthers QC said in the association’s submission to the Rules Committee. The Rules Committee in February 2009 released a paper titled Case Management Written Briefs in which it sought comment as to whether there should be changes The bar dinner hosted by the New Zealand Bar Association and Auckland District Law Society Inc at the Royal to the High Court Rules relating to preNZ Yacht Squadron – honoured the recent appointment of new Judges and the first New Zealand Senior trial conferences and written briefs. The Counsel. Pictured from left are: Keith Berman; Simon Moore, SC; Jan McCartney, SC; Jack Hodder, SC; Sir document said that it was of particular Geoffrey Palmer, SC; Colin Carruthers QC, President of the New Zealand Bar Association; Christine Gordon, concern to High Court Judges that almost SC; David Heaney, SC; and Murray Gilbert, SC. Photograph supplied courtesy of ADLS Inc. all evidence in civil trials was adduced by should appear. The court could consider the issues afresh written briefs. It identified three problems with that practice: and assess the adequacy of the pleadings. It could also additional costs; written briefs containing the words of the determine the way in which evidence was to be pleaded, lawyer rather than of the witness; and opposing lawyers with there being no presumption that written briefs should spending hours preparing and then cross-examining at be provided. The document suggested that guidelines as to length on the words used in the statements. whether evidence-in-chief should be written or oral could The committee suggested that the issue of whether be developed. Provision could be made to direct that “will written briefs were desirable in whole or in part was best say” statements rather than written briefs be filed. considered only after the parties and Mr Carruthers said in the counsel fully appreciated the issues, association’s submission that which would usually be after a failed the council had not attempted settlement conference. The issue to canvass all of its members in would also be most appropriately preparing its submission. However, it canvassed by counsel and a judge, had received sufficient feedback to and as part of a general, pre-trial conclude that many of the concerns case management conference within identified in the consultation paper 20 working days of an unsuccessful were serious and needed to be settlement conference, or within 20 addressed. There was disagreement, working days of setting down if there however, over the extent to which was no settlement conference. those concerns would be addressed The committee said that the by a general move to oral testimony. conference could be held before The submission said that the directions had been given as to proposal for more widespread use the mode of evidence. It would be of “will say” statements called for compulsory, and senior counsel

New Zealand Bar Association Annual Conference Wellington

12 September 2009

continued over...

INSIDE THIS ISSUE Pg 1 - Divergent NZBA Views on Written Briefs and Proposed Rule Changes Pg 3 - NZBA Ties Important to Attorney-General Pg 5 - Civil Procedure Reform UK Style Pg 6 - Junior Barristers Report Pg 7 - When More is Less and Less is More, More or Less by Graham Kohler Pg 8 - The Bar Dinner photos Pg 9 - Bar Chat Pg 10 - Upcoming Conferences & Seminars Pg 12 - The Art of Written Persuasion Pg 13 - The Art of Written Persuasion - A One-day Intensive Workshop for Senior Litigators Pg 14 - J Anderson (Andy) Little Half-day Seminar “Never Leave Money on the Table!” Pg 15 - NZBA Grants For the Litigation Skills Programme 2009 Pg 16 - What Members Need to Know Pg 18 - Book Review: Sensible Sinning, by Bernard Brown Pg 19 - NZBA Council Summary of Meeting Minutes

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 Graham Kohler Tel: 0064 9 307 9816 Email: kohler@shortlandchambers.co.nz John Matthews Tel: 0064 9 409 2010 Email: jgmatthews@xtra.co.nz DESIGN & PRINT Amanda Brett, Kinetech Creative Tel: 0064 9 576 8393 Email: amanda@kinetechcreative.co.nz New Zealand Bar Association Tel: 0064 9 303 4515 Fax: 0064 9 303 4516 Email: nzbar@nzbar.org.nz Web: www. nzbar.org.nz P O Box 631 Auckland 1140 2

Divergent NZBA Views on Written Briefs and Proposed Rule Changes continued... careful consideration because of concerns expressed about it. Some members believed that such statements would attract their own difficulties and result in shortcomings similar to those under the existing regime. Mr Carruthers said that the issues identified in the consultation paper raised questions which were broader than the debate over written versus oral testimony. In particular, both a decline in the quality of pleadings and widespread disregard for the rules of evidence were seen as contributing factors to the problems. Those factors needed to be addressed irrespective of any decision on the form in which evidence was given. Mr Carruthers said that the greatest support appeared to exist for closer consideration of the appropriate mode of giving evidence, but with the retention of signed written briefs even when all or part of the evidence was to be given viva voce. That appeared to be the position which now applied in the United Kingdom under the Civil Procedure Rules 1992, Part 32, Evidence. The submission said that there was some support for retention of the status quo, but with a greater use of judicial discretion and a serious effort to address the problems identified in the consultation paper. There was little support for a return to all evidence routinely being given by oral testimony. A short oral statement from a witness summarising what he or she intended to say could be a means of dealing with difficulties in “settling in” when witnesses were immediately exposed to crossexamination. Mr Carruthers said that there was no argument that the concerns raised by the consultation paper were serious and needed urgent attention. However, the council doubted that abolition of the rule requiring written briefs would remedy the problem. A better option might be a combination of the following – • an early pre-trial conference • identification at that conference of the areas of evidence to be covered

• judicial discretion as to whether to dispense with written briefs, perhaps with “will say” statements for some witnesses • greater judicial intervention when written briefs contained submissions and irrelevant evidence, and • deferring provision for written briefs until after a judicial settlement conference. Barrister and former NZBA president, Jim Farmer QC, said in his submission on the consultation paper that he backed the proposals. In particular, he said that he agreed that the three problems identified with written briefs – additional costs, lawyers’ rather than witnesses’ words and lengthy crossexamination – were indeed issues. Dr Farmer said that his only reservation in respect of the proposals related to the suggested use of “will say” statements. He said that he did not believe that such statements should be able to be referred to at trial in any circumstances. “The ethical obligations on the profession should be adequate to discourage lawyers from putting forward deliberately false written statements or even careless ones. The relevant witness should sign the statement as a further safeguard. “Will say” statements are probably only appropriate in relation to a settlement conference. I can see their utility there but would be concerned if their use would add to the problem of front-end cost loading – so in my view they need to be kept short.” Dr Farmer concluded that, while discretion as to whether to make some use of written briefs to deal with matters of formal proof should be retained, it should be made clear in drafting new rules that the norm at trial would be oral evidence on crucial factual issues and on contentious matters. The Rules Committee is considering the submissions received and further consultation may take place later in the year.

NZBA Ties Important to Attorney-General Maintaining membership of the New Zealand Bar Association and organising regular meetings with the president will be important in fulfilling the functions of his office, says Attorney-General Chris Finlayson. He said in an interview with the New Zealand Bar Association Newsletter that he had hoped to attend the NZBA’s conference last year, but that had not in the end been possible because of the 2008 general election. However, he was keen to be present at this year’s conference in Wellington in September. “I think it’s just such a good way to keep up with the law.” Mr Finlayson has had a stellar rise in politics, becoming a minister after serving only one term as an MP. He entered Parliament in 2005 and describes the transition from practice to politics as “quite difficult.” The reason was that he had a case set down for two weeks in July, but a delay in the trial date meant that the hearing in fact took place later that year, running for five weeks and ending on the day after the general election. Mr Finlayson says that the then-National Party leader, Don Brash, told him to follow through on his responsibilities to his clients and run the case, despite it coinciding with the election campaign. “Certainly it was an odd transition and indicated to me that if you are going to cross the rubicon it certainly pays to have everything nice and organised.” Mr Finlayson identifies as a highlight of his first term as an MP the detailed

work he did on specific legislation. He was a member of a sub-committee of the justice and electoral select committee set up to examine the Evidence Bill, and says MPs from the Labour, Green and National Parties worked constructively together. He also worked on wills and property legislation and says he loves hard law. Mr Finlayson was appointed AttorneyGeneral and given the portfolios of Treaty Negotiations and Arts, Culture and Heritage when Prime Minister John Key selected his Cabinet in November 2008. He says that former National Party leader Jim McClay told him that the role of Attorney-General should occupy about half an hour of his day, unless there was a crisis. In practice, Mr Finlayson spends about 70 per cent of his time on treaty negotiations, 20 per cent on his responsibilities as Attorney-General, and 10 per cent on arts, culture and heritage matters. He describes the position of Attorney-General as a “truly interesting job,” and says that it provides a very important link between law and government. “It’s politics and law mixed in a very odd way. It’s a real lawyers’ law job. I can’t possibly see how a non-lawyer could do it. The subtleties of the law would completely evade a non-lawyer.” He says that the overarching purpose of the position is to ensure that the business of government is conducted in accordance with the rule of law. Mr Finlayson says that using the notion of the rule of law as a lode star means that an Attorney-General will stay on

the right path. He refers to a sign in the Justice Department in Washington saying “The law always wins,” which he says is another good way of looking at it. “But we should never get complacent. I think the Electoral Finance Act debate showed how important it is always to maintain standards. I regard that as a serious lapse by a vindictive government. I think they were shocked by the 2005 election result and were determined to screw the scrum to suit them going into the 2008 election. It is a salutary lesson that such an unprincipled approach harmed them greatly.” Since becoming Attorney-General, Mr Finlayson says that he has become interested in human rights’ issues, which he has found somewhat surprising given his background in black letter, civil law. “The human rights dimension of law is much more pervasive and important than a lot of lawyers in large commercial firms may think.” His responsibilities as AttorneyGeneral include the provision of legal advice to the Government, the appointment of judges, New Zealand Bill of Rights Act vetting of legislation, oversight of Parliamentary Counsel Office and the Crown Law Office, and intervention in cases raising important public interest issues. Mr Finlayson identifies the case of Lai v Chamberlains, which related to barristerial immunity, as an obvious example of a case in which he believes the Attorney-General should have sought leave to appear and make submissions. He hopes in future to appear personally in some cases at the appellate stage, as some of his predecessors have done. Under section 7 of the New Zealand Bill of Rights Act, the Attorney-General is required to report to Parliament if proposed legislation appears to be inconsistent with the Bill of Rights. He says that the failure of his predecessor to provide a report in relation to the Electoral Finance Act made him wonder whether the Attorney-General as a member of the Government could discharge this responsibility. Mr Finlayson believed that the freedom of expression issues raised by that legislation were plain. He himself has continued over...

NZBA Ties Important to Attorney-General continued... now issued four certificates, relating to the Criminal Investigations (Bodily Samples) Amendment Bill, the “three strikes and you’re out” legislation, Eden Park and changes to sentencing and parole. However, as a government minister he will also be voting in favour of government legislation. “I don’t have any particular difficulty with it. It’s an interesting and novel area for me.” He says that the threshold for providing a report is very low. Mr Finlayson describes his responsibilities as treaty negotiations minister as “truly fascinating.” In recent weeks he has been to Ruatoki twice, and also went to the Wairau Bar in Marlborough to witness the reburying of the remains of more than 40 Rangitane tupuna which had previously been removed for study and museum display. He says that every New Zealander should read the Tuhoe story to understand the harmful things which were done. The hurt felt by Maori is not manufactured but a deeply-held grievance, he says, and putting it right is one of the most important types of work a government can undertake. Mr Finlayson describes the “lackadaisical” approach of the previous government, which completed few settlements in eight years, as “shameful.” Mr Finlayson believes that all lawyers should read the Waitangi Tribunal’s Muriwhenua Report so that they understand the extent of the deprivation in that area. He says

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that it is important for the public to comprehend the issues, and all lawyers – not just treaty lawyers – should be aware of the situation. His goal as treaty negotiations minister is to secure just and durable settlements of the remaining historical grievances. The Government has set a target completion date of 2014, but Mr Finlayson characterises that as an “aim, an aspiration a goal,” and says that the quality of settlements will not be compromised by the desire to have them finished by a specific date. Mr Finlayson’s third key area of responsibility is as Minister of Arts, Culture and Heritage. He says that the representative side of those portfolios, involving getting out to meet people and attend functions, is “huge.” He is of the view that policy areas relating to these portfolios have been neglected for a long time, and considerable work is required to improve matters. “My primary task this year is to ensure that the arts’ infrastructure is looked after in tough times.” He believes that both corporates and individuals have a responsibility to support the arts in a difficult economic climate. Mr Finlayson says that the public service role of lawyers is important, describing the work of the New Zealand Law Society’s Legislation Committee as “phenomenal.” He considers that the NZBA could do more in that regard, and says that it would be fantastic for members of the independent bar to contribute to

the development of the law. He plans to consult with the NZBA over the appointment of Senior Counsel, as well as over ways to make the justice system more effective. He points to a speech by United States’ Supreme Court Associate Justice Stephen Breyer to the American Bar Association’s 2001 annual meeting as an outstanding exposition of civic commitment for lawyers. Justice Breyer discussed three different public service roles for lawyers: pro bono work, law reform, and as the teachers of basic legal and constitutional values. In that address Justice Breyer quoted Justice Learned Hand’s 1931 remark that “It is the bar which makes the statutes,” a view which Mr Finlayson echoes. Mr Finlayson was born in Wellington and attended school there, joining the National Party in 1974 at the age of 18. He attended Victoria University, graduating with a BA in Latin and French and an LLM. He practised law in Wellington for 25 years, becoming a partner first at Brandons and later at Bell Gully before going to the independent bar in 2003. Mr Finlayson appeared in all of New Zealand’s courts and tribunals during his years in practice, as well as making nine appearances at the Privy Council. His primary areas of focus were civil and commercial law and judicial review. He was a member of the Rules Committee and lectured part-time in the Law Faculty at Victoria University.

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Civil Procedure Reform UK Style - Lord Jackson’s Visit to New Zealand, by Graham Kohler Demands for the reform of the ways in which Courts deal with civil or commercial disputes have existed for as long as we have had Courts. Reform driven by developments in the community at large (eg the accelerating pace of life and commerce) and made possible by technological changes (eg computer) are inevitable. Change/reform will be with us always. Such matters aside, however, one could be forgiven for thinking that by now the basic principles and rules of civil procedure in the various common law jurisdictions would have been largely settled. All the more so as the critical issues needing to be addressed have been known and agreed on for centuries. As long ago as the Magna Carta (1215), the issues of delay and expense were identified as serious issues: “Article 40: To no one will we sell, to no one will we refuse or delay, right or justice.”

Report in 1997. All advocated structural or procedural reform. The expectation of each was that the recommended reforms would, when implemented, achieve the required improvements in efficiency and economy. The most radical reforms of recent time have become known as the Woolf Reforms ie those that followed former Master of the Rolls, Lord Woolf’s Reports (1995-1996), on the civil justice system in England and Wales. Underlying Lord Woolf’s reforms was the proposition that, whilst structural and procedural reforms to the system were necessary, such reforms in themselves would be insufficient and there had to be change in litigation culture. He sought such change by introducing active case management (something first proposed in 1826 by the first

Sir Anthony Clark, Master of the Rolls in England and Wales in a paper delivered to The British Academy on 2 December 2008 titled “The Woolf Reforms: A Singular Event or an Ongoing Process?” traces law reform in the UK over the centuries. He recounts a never ending parade of law reform committees and commissions etc from Magna Carta on. Virtually without exception the reform bodies have sought to deal to “the unholy trinity of complexity, cost and delay”.

The most radical reforms of recent time have become known as the Woolf Reforms ie those that followed former Master of the Rolls, Lord Woolf’s Reports

In the UK, throughout the 20th century, virtually every decade or so a new law reform body was established or a report published designed to address and deal to the “the unholy trinity” or an aspect thereof. In 1908 it was the Gorell committee, in 1913 the St Aldwyn Committee, in 1922 the Swift Committee, in 1932 the Hanworth and the Peel Committees, in 1947 the Evershed Committee, in 1968 the Winn Committee, in 1969 there was the Beeching Report, in 1979 the Cantley Report, the Oliver Report in 1981, the Civil Justice Review in 1988, the Heilbron/Hodge Report in 1994 and the Middleton

Chancery Reform Commission!), secondly, by introducing what he described as “the general objective”, and thirdly by imposing on litigants and their representatives a duty to assist the Court in furthering the general (Sir Anthony Clark calls it “the overriding”) objective. The focus of the general/overriding objective is on procedural justice. The rules were amended (eg see CPR 1.1(2)) to provide that the Courts in dealing with civil cases has to be concerned with ensuring that parties are on an equal footing, that expense is saved and that cases are dealt with in a manner

which is proportionate for the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party thereby ensuring that the case is dealt with expeditiously and fairly within an appropriate share of the Court’s resources being devoted to it. For the first time in history of English civil justice there is an explicit guiding statement of principle for the conduct of civil litigation (ie the general objective). As Lord Clark noted that: “ensures that Woolf’s reforms are an ever ongoing process.” Sir Anthony Clark, in his paper, claims that as a result of the Woolf Reforms there has been a marked reduction in unproductive “satellite litigation” – ie technical interlocutory arguments. The Reforms also place much greater emphasis on alternative dispute resolution processes. It can be immediately noted that there are similarities with what has been happening in New Zealand. We too have had the introduction of active case management (for better or worse) and we too are seeing much greater emphasis placed on driving/ encouraging parties to ADR. In his paper Sir Anthony Clark recognises, however, that there has been one failing of the Woolf Reforms and that relates to costs: “Cost is without doubt the Woolf Reform’s essential failing. Litigation costs are still disproportionate. They are still excessive in a significant number of cases.” In November 2008 Lord Justice Jackson (Sir Rupert Jackson) was appointed to conduct a fundamental review of the costs regime relating to civil litigation in England and Wales. Unlike the New Zealand regime, the UK system generally provides that the successful party receives a full reimbursement of costs (ie indemnity costs). Sir Rupert has been given a precise brief and timetable. Between January and April this year he is to prepare a working paper. From May to June he is to conduct public seminars and consult and from continued over...

Civil Procedure Reform UK Style - Lord Jackson’s Visit to New Zealand, by Graham Kohler continued... September to December he is to prepare his final report. As part of the first phase he, and a small team including senior English costs judge Peter Hurst, have embarked on a “whistle stop” tour of various common law jurisdictions obtaining information and views as to the alternative civil cost regimes that operate in the various countries. He arrived in New Zealand on 3 April and left on the 4th. He managed on the 3rd to hold meetings with

representatives of the Bar Association (Jim Farmer QC, Colin Carruthers QC, Stephen Mills QC, Clive Elliott and Graham Kohler), the New Zealand and Auckland District Law Societies and the Judiciary. He then dined with our Ministry of Justice Rules Committee. He sought particulars of our regime and views on its effectiveness.

given Sir Rupert’s comments when here, if we were to see the introduction of a costs regime in the UK that is not dissimilar to the current New Zealand system. One doubts that anyone familiar with the history of law reform would be brave enough to suggest however that the “unholy trinity” has been finally dealt to.

It is inevitable that there will be substantial reform to the UK costs regime and it would not be surprising,

Junior Barristers Report, by Joanne Verbiesen Well as I predicted in my last column 2009 has certainly turned into a head down, tail up year for me. You always hear people say that time flies when you’re having fun but it turns out that time also flies when you are working really hard. And so it is that it wasn’t until I sat down to write this column that I realised that it was rapidly approaching the middle of the year already. Still there is plenty left in the second half of the year for us junior barristers to look forward to. First up we have the half day legal writing and reasoning seminars with Professor James Raymond in Auckland and Wellington in July.

Although the name of this seminar may bring back the horrors of similarly named law school papers, I’m sure this half day seminar will be far more useful and entertaining than anything learnt at law school.

surrounding areas we are organising a junior barrister social function and if you have any hot ideas on venue or know of any non-NZBA junior barristers who might be keen to attend then let me know.

Coming up in August is of course the annual NZLS Litigation Skills course for which the NZBA offers two scholarships. This course conjures up memories of boot camp and sleep deprivation torture for me, but is definitely well worth the time, effort and money.

Finally, I just wanted to again urge you all to come along to the NZBA annual conference in Wellington, which is being held 11-13 September this year. If anything it’s a great excuse for a trip to the fabulous city of Wellington (unless you are lucky enough to live here like me) and it’s all tax deductable. Oh and there will also be fabulous and entertaining speakers as well of course!

For all the junior barristers and not so junior barristers in Christchurch and

When More is Less and Less is More, More or Less by Graham Kohler It is sometimes said of advocacy that less is more (and more is less) – ie that brief to the point submissions are more effective than long, rambling, repetitive submissions. The phrase “more is less” however received an entirely new twist at the recent Sentencing Advocacy Competition final in the Auckland High Court. The sentencing competition is an annual event organised by the Auckland High Court judges in collaboration with the Auckland University Law School. In the best legal tradition there is “money up for grabs”. Contestants face-off as prosecution and defence counsel on the sentencing of a convicted felon. The finalists were Emily Cameron for the prosecution and Max Harris for the defence. In the final the offence was attempting to procure murder. The fact scenario echoed the case of the Olympian ice skaters Tonya Harding and Nancy Kerrigan. The sentencing was presided over by Justices Williams and Priestley. Spectators included a considerable number of High Court judges, Professor Paul Rishworth from Auckland University’s Law School, a couple of practitioners (Simon Moore SC for the Crown and the writer for the Bar Association) and a considerable number of Auckland University law students and supporters of the finalists. Both counsel approached the sentencing in a manner consistent with the approach of the leading authorities. Each sought to establish a penalty starting point level before addressing the adjustments required by the aggravating and mitigating factors pertaining to the particular case offender. Counsel for the Crown submitted that the appropriate starting tariff was three years or so. She then proceeded to address the suggested aggravating and mitigating factors. Mr Harris for the defence, perhaps taking the concept of “more is less” a step beyond the usual, opened with the proposition that the starting point tariff should be higher than that proposed by the Crown. This

unusual submission immediately captured the attention of the Bench. The submissions that followed were well developed and delivered and reassuringly (for future clients) ended up, after the appropriate adjustments, at a suggested lesser sentence than that proposed by the Crown.

The phrase “more is less” however received an entirely new twist at the recent Sentencing Advocacy Competition final in the Auckland High Court It was an approach that on reflection reminded me of the sort of thing that Kevin Ryan QC might have adopted. Counsel may have concluded that when their Honours looked at the authorities they would be drawn to the conclusion that a higher starting tariff was appropriate. Therefore, it

would be more sensible to accept that head on and get the benefit of enhanced credibility and the heightened concentration that comes with an early interest. There again, the answer may lie in the comments made by Justice Rhys Harrison at the subsequent prize giving where he revealed that the judges had realised from previous contests that of the two finalists Mr Harris was, by style and apparent inclination, a natural prosecutor and Ms Cameron a natural defence advocate. Naturally, therefore, Ms Cameron was given the role of prosecuting counsel and Mr Harris defence counsel. Whether this reveals a concerning perversity within the judiciary is another issue! They were both superb young advocates. There had to be a winner and Ms Cameron took away the $600 first prize and Mr Harris the $400 runner up prize. The event was well supported by the judiciary and by law students. In future years it would be pleasing to see more practitioners attend – it is an initiative worthy of support. The writer can vouch for the fact that, rather than being an ordeal, the experience was entirely enjoyable. The writer got more out of it than what he put in. More for less.

The Bar Dinner on 27 February 2009

Attending The Bar Dinner on 27 February. From left: Colin Carruthers (President of NZBA), Judge David McNaughton; Justice Joe Williams and Keith Berman. Photographs provided courtesy of ADLS Inc and Jodi Libbey.

BAR CHAT We’re Getting a Fresh New Look

New NZBA Members

The Council is pleased to announce that the NZBA website is in the process of being updated. Also being upgraded is the technology system that looks after members’ information.

The Bar Association welcomes the following new members to the independent bar and/or the Association: AUCKLAND:

Adrienne Wing, Bret Gustafson, Cathy Murray, Eugeny Orlov, John Green, Kevin Glover, Robert Perry, Sarah J Armstrong

WELLINGTON:

Karen Feint, Jonathan Haig, Mercia Reddy

The new integrated system means members will be able to: • Update their details online • Book events online • Renew their subscriptions online • Purchase merchandising and texts online

CHRISTCHURCH: Peter Dyhrberg, Trudi Aickin

• Make credit card payments

SOUTH ISLAND: Sharon Opai, Toni Brown, Vicki Scott

Watch this space…

Announcement

NZBA Council meetings and events 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 future Council meetings.(see below).

The Council wishes to congratulate Miriam Dean QC on her recent appointment to the Auckland Transition Agency, which has the huge task of designing Auckland’s Super City. The Agency will manage the transition from the existing seven territorial authorities and one regional council to a single unitary authority for Auckland and 20 to 30 local boards. The Agency is a statutory entity and will exist until the Auckland Council comes into existence in October 2010.

2009 Council Meetings and Events DATE

EVENT

VENUE

25 June

Council Meeting

Video Conference

27 July 30 July

“The Art of Written Persuasion” with Professor James C Raymond A half-day seminar for junior/intermediate litigators

Auckland Wellington

28 July

“The Art of Written Persuasion” with Professor James C Raymond A full-day intensive workshop for senior litigators (limited numbers)

Auckland

13 August

“Never Leave Money on the Table” with J Anderson Little An afternoon seminar on how to handle the special problems presented in money disputes

Auckland

23-29 August

NZLS Litigation Skills Course (two NZBA scholarships available)

Christchurch

12 September

NZBA Annual Conference and Annual General Meeting

Wellington

25 September

“Civil Litigation - Beyond the Crisis” A follow up conference to the very successful NZBA / LRF conference “Civil Litigation In Crisis - What Crisis?”

Auckland

22 October

Council Meeting

Wellington

03 December

Council Meeting

Auckland

UPCOMING CONFERENCES & SEMINARS NEW ZEALAND NZBA Professor Raymond on “The Art of Written Persuasion” Auckland and Wellington 27 - 30 July 2009 Professor James C Raymond will visit New Zealand in late July and deliver two seminars in Auckland and another in Wellington on “The Art of Written Persuasion”. One is a half day seminar for junior / intermediate litigators and will be held in Auckland and Wellington; the other a full day workshop for senior litigators which will be held in Auckland only. These are seminars not to be missed. Programmes and registration forms are available on the Association’s website www.nzbar.org.nz

AMINZ Annual Conference Wellington 6 - 8 August 2009 The Arbitrators’ and Mediators’ Institute of New Zealand is holding its annual conference in Wellington, 6 – 8 August 2009 with the theme “Building Your Profession”. The event is the only annual national alternative dispute resolution conference held in New Zealand. The NZBA is a Supporting Organisation of the conference and as such NZBA members can register for the conference at AMINZ member rates. Conference information and registration details can be found at: www.aminz.org.nz

NZBA J Anderson (Andy) Little half-day seminar “Never Leave Money On The Table!” – Improve Your Skills In Resolving Monetary Disputes Auckland 13 August 2009 The NZBA is delighted to offer members an afternoon seminar with J Anderson Little, an experienced US litigator and mediator, on how to handle the special problems presented in money disputes. As many of us know, disputes about money only – as so many disputes often are – can be fundamentally different, and more difficult to settle, from other types of dispute. Claims for money inevitably start with positional bargaining, end with positional bargaining and resist efforts to reframe them into problem solving experiences. Mr Little, both as an attorney and author of the text “Making Money Talk” – How to Mediate Insured Claims and Other Monetary Disputes – will provide some practical and helpful techniques for negotiating successfully money disputes. Registration details can be found on the NZBA website at: www.nzbar.org.nz

NZBA Annual Conference “Advocacy and Courtroom Practice - The Duties of Counsel” Wellington 12 September 2009 Members, mark your diaries now! Visit the Association’s website - www.nzbar.org.nz - to find out more about the programme and how to register for this not to be missed event (see page 13 for more information).

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UPCOMING CONFERENCES & SEMINARS INTERNATIONAL Australian Bar Association Conference Strasbourg and London 26 June - 1 July 2009 The Australian Bar Association Conference will be held in Strasbourg and London between 26 June and 1 July, 2009. The conference will commence in Strasbourg on Friday, 26 June for a full day session in the Grand Chamber of the European Court of Human Rights. The London component will commence on the evening of Sunday, 28 June and conclude with a Gala Dinner at Lincolnâ&#x20AC;&#x2122;s Inn on Wednesday, 1 July 2009. The London business sessions will be held at the Mayfair Hotel. For more information visit the ABA website at: www.austbar.asn.au

IBA Annual Conference Madrid 4 - 9 October 2009 The IBA Annual Conference is the premier opportunity for lawyers from around the world to meet and participate in key discussions regarding legal developments in various jurisdictions. The conference will offer more than 150 working sessions covering all areas of practice and addressing current industry-wide issues, three outstanding showcase sessions will be presented this year, of great interest to lawyers of all disciplines. The Rule of Law Symposium on Friday 9 October will present a variety of distinguished speakers and interactively discuss the Rule of Law around the world and how best to promote adherence to its principles. To find out more and to register please visit www.ibanet.org/conferences/Madrid2009/

Australian Lawyers Alliance National Conference Queensland 22 - 24 October 2009 The annual Australian Lawyers Alliance National Conference will be held at the Hyatt Regency, Sanctuary Cove, Queensland. A call for papers has been announced. Details can be downloaded from the website: www.lawyersalliance.com.au/events

NZBA Annual Conference 2009 : Advocacy and courtroom practice - the duties of counsel. 11

“The Art of Written Persuasion” A Must Seminar For our Junior and Intermediate Members 27 July - Auckland 30 July - Wellington Further to its very recent successful seminar “Take the Lead and Shape Your Future”, the New Zealand Bar Association is holding its next halfday seminar aimed for junior and intermediate litigators (whether practising at the bar or in firms) in Auckland on 27 July and Wellington on 30 July. This next half-day seminar is on “The Art of Written Persuasion” and the seminar will be conducted by Professor James C Raymond. The Professor is a North American academic who has lectured on legal writing all over the world and has some very practical experience here working with New Zealand judges on judgment writing. This seminar is designed to help our junior/intermediate members understand how judges write their judgments so that written submissions can be tailored more accurately to judges’ requirements. The Professor will share a fundamentally new “shotgun house” approach to identifying, arranging, contextualising and analysing issues. As a result, better submissions should be able to be produced in less time – eliminating jargon, irrelevant details, poor organisation, fuzzy reasoning and costly mistakes. And Professor Raymond will be passing on a number of tips – particularly drawing on tips from judges in different jurisdictions including our own – as to how junior/ intermediate litigators should frame and write their submissions to most effectively assist Court determinations. His Honour Justice Randerson, Chief Judge of the High Court, describes this seminar as a “must” for all junior/ intermediate litigators. In his words: “I would strongly encourage all junior and intermediate barristers to attend this seminar. Professor Raymond is a highly qualified international expert in this area and an outstanding communicator. I have personal experience of his abilities and his understanding of the art of advocacy

through written submissions. It is a “must see” for all budding advocates.” Registration for New Zealand or Criminal Bar Association members is $275 including GST. This covers written materials. The Association will also host a drinks function at the conclusion of the afternoon seminar. Places will be limited. Accordingly, members wanting to improve their

submission writing should contact the Executive Director of the New Zealand Bar Association, Monique Pearson, without delay to book their place for this not to be missed seminar: Telephone: (09) 303-4515 Facsimile: (09) 303-4516 Email: monique.pearson@nzbar.org.nz Website: www.nzbar.org.nz

“The Art of Written Persuasion” A One-day Intensive Workshop for Senior Litigators - Not to be missed 28 July - Auckland In addition to the two half day seminars for junior and intermediate litigators, the Association is holding a one-day intensive workshop for senior litigators in Auckland on Tuesday, 28 July. The programme includes a combination of lectures, discussions and written exercises with Professor Raymond taking participants through the process of building submissions and drawing heavily on his work with the New Zealand judges in terms of how they write their judgments. Most legal writing courses are about tidying up legal documents after they have been written. Professor Raymond’s workshops involve writing documents from scratch, using a precise set of techniques

for organising complex material, for analysing issues, and for arguing persuasively. The results are dramatic. Participants will examine traditions that make it difficult not only for lay readers, but even for lawyers, to understand legal documents, and replace these with a fundamentally new approach that has been described as “radical common sense”. This workshop is not just about editing legal documents after they are written. This one-day intensive programme will provide an opportunity for participants to compose a first page and an outline, applying the principles explained in the lectures. The material for this exercise will be drawn from cases selected by each participant – either a case they

NZBA Annual Conference 12 September 2009, Holiday Inn, Wellington The theme of this year’s conference is “Advocacy and Courtroom practice – the duties of Counsel”.

Court of Appeal Criminal Division since 1996 and in December 2004 was appointed Recorder of London.

The conference weekend commences on Friday, 11 September with drinks and an informal dinner at Shed 5 Restaurant.

Justice David Baragwanath of the Court of Appeal, and Peter Davey, Auckland barrister, will speak on “The impact of the Evidence Act 2006 on criminal and civil proceedings – two years on.” Judge Beaumont will comment on similar developments in the UK.

The Attorney General Hon. Christopher Finlayson will open the conference on the Saturday with an address on “Counsels duty to cooperate – achieving efficiency and fairness in litigation”. Judge Peter Beaumont QC, Recorder of London, has been invited to address members on Advocacy in 2009, from the perspective of the judge in charge of the Old Bailey, Britain’s top criminal court. Judge Beaumont was appointed a Circuit Judge in 1989 and sat initially at Chelmsford Crown Court. In 1995, he was appointed Senior Circuit Judge at the Old Bailey and from 2001 held the post of Common Serjeant of London. He has been sitting as an additional judge of the

Other sessions include “The future of the written brief” and “Class actions and litigation funding”. There will be ample time for questions and debate. Speakers include Miriam Dean QC, Philip Skelton, Lewis Turner, Jan McCartney SC and Justin Smith. The formal dinner on Saturday evening will be held at the St James Theatre. The after dinner speaker is Tom Scott. Registration opens on 15 June 2009. To find out more about the annual conference visit www.nzbar.org.nz

have worked on in the past or a current case. The facts and the names of the litigants may be fictionalised to protect confidentiality, but the issues should be genuine. The exercise may be composed on a laptop or a legal pad – whichever best suits the individual writer. Registration for New Zealand or Criminal Bar Associations members is $825 including GST. The registration fee includes documentation. Places will be limited to 34. Accordingly, those members wanting to attend should contact the Executive Director of the New Zealand Bar Association, Monique Pearson, without delay to book their place.

Civil Litigation – Beyond the Crisis 25 September Auckland A follow up conference to the very successful NZBA / LRF conference “Civil Litigation In Crisis What Crisis?” The seminar will look at among other things “work a foot - the fast track, changes to discovery and written brief” that are presently being considered by the Rules Committee. Mark your diaries now!

J Anderson (Andy) Little Half-day Seminar “Never Leave Money on the Table!” Improve Your Skills In Resolving Monetary Disputes A practical seminar for negotiating money disputes The Bar Association is delighted to offer members an afternoon seminar with J Anderson Little, an experienced US litigator and mediator, on how to handle the special problems presented in money disputes. As many of us know, disputes about money only – as so many disputes often are – can be fundamentally different, and more difficult to settle, from other types of dispute. Claims for money inevitably start with positional bargaining, end with positional bargaining and resist efforts to reframe them into problem solving experiences. Mr Little, as an experienced litigator, mediator and author of the American Bar Association’s text, “Making Money Talk” – How to Mediate Insured Claims and Other Monetary Disputes – will provide practical and helpful techniques for successfully negotiating money disputes.

In particular Mr Little will • Identify the recurring problems of movement from position to position that plague the negotiation of money disputes. • Explain why many negotiations impasse before the parties have exhausted their settlement ranges. • Stake out the warning signs that signal you have lost control of the negotiation process. • Offer a theory of communication that can help you conduct successful negotiations. • Outline a process for planning your negotiations that minimise the possibility that you will “leave money on the table”. As one commentator has said, practical tips on how to successfully settle claims for money – where a case is about numbers rather than relationships – should be for something

that should be “part of every good lawyers’ practise skills library”. The seminar will be on 13 August 2009 and commence at 2.30pm. The cost to members is $95 including GST; to nonmembers $135 including GST. Written material will be available. This seminar should be of considerable interest to lawyers, mediators and corporates who as part of their practice are required to “crunch” these often difficult disputes. Those interested in attending – and places will be limited – should contact Monique Pearson, Executive Director of the New Zealand Bar Association for further details: Telephone: (09) 303-4515 Facsimile: (09) 303-4516 Email: monique.pearson@nzbar.org.nz Website: www.nzbar.org.nz

New Zealand Bar Association Grants For the Litigation Skills Programme 2009 Lincoln University, Christchurch 23 - 29 August 2009 Criteria: 2 to 5 years experience in litigation Skills: In-depth training in the skills of successful courtroom advocacy Closing date for applications to the NZLS: Monday 29 June 2009 This week-long programme running from 23-29 August 2009 provides indepth hands-on training in successful courtroom advocacy. The course will be held at Lincoln University, Christchurch

The teaching methods for the programme have been adapted from those of the US National Institute for Trial Advocacy (NITA). Each day of the programme allows for intensive practise of discrete advocacy skills and encourages participants to learn by doing and by observation. Throughout the course participants are guided by specific, candid and constructive critique from experienced faculty from all over New Zealand. Day One is structured around leading evidence, cross-examination and production of exhibits. Day Two will allow participants to practise cross examination and impeachment, Day Three will involve the examination of expert witnesses and on Day Four there will be mini trials and drills on opening addresses. In Day Five participants will practise closing

• Concurrent mediation, arbitration / adjudication and business streams. • Workshops, role-plays, presentations, panel discussions. The Arbitrators’ and Mediators’ Institute of New Zealand is holding its annual conference in Wellington, New Zealand 6 – 8 August 2009 with the theme “Building Your Profession”. The event is the only annual national alternative dispute resolution conference held in New Zealand. The conference features:

• Social events and networking opportunities. Of particular note in the conference are sessions on expert witnessing, a reasoning and decision-making panel discussion and a session on how to write an adjudicated determination.

arguments and begin preparation for the full mock trials, which take place at the Christchurch Courts on Day Six. This course is designed for practitioners who have been in practice between two to five years. The course is restricted to 96 participants, who will be notified of the success of their application at the completion of the selection process. Some financial assistance is available from the New Zealand Bar Association, the Douglas Wilson Advocacy Trust and the Criminal Bar Association of Canterbury. Closing dates for applications for financial assistance vary, so please contact Kelly Wright at NZLS CLE Ltd kelly.wright@ lawyerseducation.co.nz . For further information please contact Monique Pearson at monique.pearson@nzbar.org.nz

The Bar Association is a Supporting Organisation of the Conference and as such Bar Association members can register for the conference at AMINZ member rates. Conference information and registration details can be found at:

www.aminz.org.nz

• The launch in the Grand Hall of Parliament hosted by the Attorney General Hon. Christopher Finlayson. • The AMINZ Annual Dinner with speaker His Excellency The Hon Anand Satyanand PCNZM¸ QSO Governor General of New Zealand • Over 40 presenters including J. Anderson (Andy) Little, Hon. Robert Fisher, Hon Peter Salmon, Judge Vivienne Ullrich, Judge Anthony Willy, Warren Sowerby, Geoff Sharp, Derek Firth, Tony Frankham and Phillip Green.

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WHAT MEMBERS NEED TO KNOW Counsel moving applications for admission to the Bar: requirement to hold a current practising certificate Judges presiding over admission ceremonies are sometimes asked to exempt moving counsel from the requirement that counsel hold a practising certificate. Section 27(1)(b)(ii) of the Lawyers and Conveyancers Act 2006 permits the Court to grant such exemptions. In most cases, the Judgesâ&#x20AC;&#x2122; preference is that moving counsel seek a temporary certificate from the Law Society rather than an exemption from the Court. Applicants are reminded that applications for admission must be certified by a lawyer holding a practising certificate. Accordingly, counsel who do not hold a current practising certificate must apply to the Law Society for a temporary certificate or to the Court for an exemption before filing the originating application. Counsel should allow processing time for such an application to be considered. Applications to the New Zealand Law Society for a temporary practising certificate should be made at least two weeks before the date on which the application for admission is due to be filed.

Applicants are reminded that applications for admission must be certified by a lawyer holding a practising certificate.

Applications to the Court for exemption should be made by letter filed in Court at least two weeks before the date on which the application for admission is due to be filed. Such applications will not be granted routinely. Counsel should explain why the exemption is sought and why he or she should be permitted to appear without a practising certificate; for example, that counsel is a retired practitioner in good standing who wishes to move the admission of a close family member.

Those seeking an exemption should also be aware of the requirement in rule 5(3) of the Lawyers & Conveyancers Act

(Lawyers: Admission) Rules 2008 for the application for admission to be filed at least one month before the scheduled hearing unless the Registrar allows it to be filed later.

Court use of Audio Visual Links (AVL) The Ministry of Justice, with the assistance of Chief High Court Judge Justice Randerson, has recently completed a Guide to Court Use of Audio Visual Links (AVL). AVL is currently being used in some hearings conducted by associate judges, for evidence from witnesses who are overseas or who are at a distance, and for some applications for leave in appellate cases. The guide has been prepared for the use of the profession and court staff on the procedures to be followed to book and hear matters by AVL. The guide is available on the Ministry of Justiceâ&#x20AC;&#x2122;s website www.justice.govt.nz under Information and Publications/ Information for Court Users/Court Information, and on the Courts of New Zealand website www.courtsofnz.govt.nz under Court Business/Guidelines. Practitioners wishing to use AVL should first contact their local court.

Guidelines for courtroom etiquette Etiquette Guidelines for counsel engaged in court proceedings have been developed as a result of a consultative process between members of the High Court and District Court judiciary and the professional associations and societies.

A copy of the guidelines can be found on the NZBA website: www.nzbar.org.nz It is important to note that these guidelines are not a formal practice note and have been provided to the Association by Chief High Court Judge Justice Randerson to assist practitioners, especially newly qualified practitioners who may not be familiar with the basics of court etiquette. The guidelines are not intended to be comprehensive and must be read alongside the Conduct and Client Care Rules 2008.

WHAT MEMBERS NEED TO KNOW Supreme Court Practice Note - Pre Trial Appeals

c. by an applicant, in or accompanying the leave application; or

1. The Supreme Court has been give power to hear appeals from decisions of the Court of Appeal under s 379A(1) or (2) of the Crimes Act 1961: see s 379AB which was added to the Act from 26 June 2008 by s 8 of the Crimes Amendment Act (No2) 2008. The leave of this Court is required for bringing of such an appeal.

d. by a respondent, no later than 4 pm on the first working day following the service of the applicant’s written submissions.

2. Any pre-trial appeal in a criminal proceeding upon indictment has the potential to cause the trial to be delayed. The bringing of a further appeal to this Court is even more likely to have that consequence. 3. The issue or issues on such a pretrial appeal will generally be well defined and familiar to counsel by the time an application for leave is made to this Court. Accordingly, the following direction is given with a view to minimising delay. 4. It is directed that on an application for leave to appeal under s 379AB: a. the written submissions of the applicant must be filed and served on the respondent within five working days of the making of the leave application; and b. the written submissions of the respondent must be filed and served within five working days of the service of the applicant’s written submissions. unless a written request for additional time stating the amount of time required and giving reasons why it is needed, is made to the Registrar of the Court:

5. For the definition of “working days” see r 3 of the Supreme Court Rules 2004. 6. The practice note applies with immediate effect.

The effect of the Lawyers and Conveyancers Act on The Independent Bar The Public Issues Committee of the Auckland District Law Society Inc, has published a paper titled “The Effect of the Lawyers and Conveyancers Act on The Independent Bar”. The discussion paper is available to view in full at the Auckland District Law Society Inc internet website: www.adls.org.nz/about-adls/ committees/public-issuescommittee/public-issue-papers

Health and well-being Practice at the Bar, combined with the pressures of everyday life, is inherently stressful. Following an address by Anna Katzmann SC, President of the NSW Bar Association, at last year’s NZBA conference the Bar Council resolved to develop a Bar Care Programme to assist barristers in the identification and management of stress and depression, and also provide a resource for barristers in need of advice and assistance. A sub committee has been formed to develop the programme and further details will be announced on the NZBA website - www.nzbar. org.nz – in due course. If any member has an article, reference or contact that they think may assist the sub committee in developing the programme, or add to our database of useful links, then please feel free to contact Kate Davenport, Jonathan Eaton or Monique Pearson at the details below: Kate Davenport Tel: (09) 307-8787 kate@katedavenport.co.nz Jonathan Eaton Tel: (03) 372-3466 j.eaton@bridgesidechambers.co.nz Monique Pearson Tel: (09) 303-4515 monique.pearson@nzbar.org.nz

Book Review Sensible Sinning, by Bernard Brown (Cape Catley) Reviewed by Anthony Rogers As the publishers say: Sensible Sinning is a semiautobiographical account in sardonic sketches, sharp poetical commentary and pertinent short stories…They span seven decades of a remarkable life in England, Malaya, Singapore, New Guinea and, since 1962, New Zealand. The work is much more than that, however. Gently laced with his inimitable wit Bernard demonstrates repeatedly his deep compassion for, and empathy with, his fellow human beings whatever our failings. In 1953 or ’54 Bernard was present at the Leeds Assize when a man named Hall was sentenced to death for murdering a little girl: I sat immediately behind the dock and when the guards turned him around to “take him down” after sentence had been passed, his eyes met mine and the sheer terror in them might have been matched only in that little girl’s as he prepared to strangle her. So that answered the obvious question. Surely he got his just desserts. Bernard is not, however, simply an observer of the human condition. Cedric shot his girlfriend at pointblank range, then calmly picked up the

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pieces, put them in his car and drove around Northland. He was the last murderer to be reprieved in New Zealand. He had only just missed execution. Bernard visited him at the request of New Zealand’s first prison psychologist. After his release, having served nearly 15 years, Bernard and Gaynor had him to dinner at their home. Bernard refers to what he describes as the one biblical commandment that shines light, “Love thy neighbour as thyself” and gives examples of modern societal applications. He concludes: If “sinning”, however one perceives sin, can be put to sensible use in

concretising human dignity in these, and allied, instances, then I’m all for it. Whatever life I have left to me I’ll cheerfully live in sin and, importantly, end it in sin. Bernard’s association with, and empathy for, sinners bears a remarkable resemblance to those of another person who over 2000 years ago was notorious for associating with tax collectors, prostitutes and other sinners of that time. Indeed, Sensible Sinning could, I respectfully suggest, be retitled Sermon on Mt Eden by St Bernard of Parnell. Thoroughly recommended.

NZBA Council Summary of Meeting Minutes Minutes of the Council Meeting of the New Zealand Bar Association held on Thursday, 4 December 2008 at 10:00am in Christchurch. Mr Carruthers tabled progress in relation to the Council oversight of legislation going through Parliament. Mrs Pearson reported that the professional indemnity insurance information requested of Mr Martin at the October Council meeting had not been received. The Council decided to look more widely at insurance options and a sub-committee comprising Mr Gudsell, Mr Mills and Ms Dean was formed. In the absence of Mr Johnston, Mrs Pearson reported on the financial accounts for October 2008. Interest rates on term deposits had dropped by approximately 1.5% with predictions of a further rate cut in early 2009. Mr Mills commented that overall the finances were in a satisfactory condition and in terms of net position the Association was getting healthier by the year. Total membership of the Association as at 30 November 2008 was recorded at 836. The Council discussed the challenging and uncertain times members faced in terms of the recession and worldwide financial instability. Ms Davenport suggested the Association consider a well-being programme for members, particularly in the current economic climate. A sub-committee was formed to further investigate a Bar Care Programme along the similar lines of Bar Associations in other jurisdictions. Mrs Pearson provided an update on the implementation of the new membership relationship management database, associated costs and implementation timeframes. Mr Mills reported on his meeting with Philip Skelton and Mary Peters, who were driving the class actions submission. He advised that the Association’s formal submission was due to the Rules Committee on 12 December.

The Council considered a letter from the Chief High Court Judge about proposed arrangements to assist FTR transcribers, which tied in with the way the rules for the briefs of evidence would be shaped. Justice Fogarty joined the meeting over the lunch period and provided an update on briefs of evidence, the rocket docket and the economics of class actions and litigation funding. The Council considered and discussed applications for temporary dispensation of the Intervention Rule, which Mr Carruthers had received from the NZLS. Mr Carruthers reminded the Council that the Association’s formal role under the new processes and criteria of the Rules of Conduct and Client Care was one of consultation. The Council discussed points raised in a paper prepared by Mr Gudsell setting out a framework for the tasks to be undertaken in relation to the practising/ training requirements for barristers. Mr Sissons provided an update on the annual conference arrangements. The conference would be held in Wellington the weekend of 11 to 13 September. Mr Carruthers reported that the Association had been invited to be a cooperating entity for the Universal Declaration of Human Rights programme on a no-fee, no commitment basis. The Council agreed to participate. Mr Carruthers advised that participation in the World Justice Project required a financial contribution from the Association. The Council agreed that the Association should remain on the mailing listing and that no further action was to be taken at this stage. Mr Carruthers and Ms Davenport reported on their progress re an equitable briefing policy. Mr Slattery QC of NSW had launched the Australian equitable briefing policy and Ms Davenport thought there was merit in our Association adopting an equivalent policy.

Mr Carruthers and Ms Pearson provided an update on their recent visit to the ACT Bar Association.

Minutes of the Council Meeting of the New Zealand Bar Association held on Friday, 27 February 2009 at 10:00am in Auckland. Mr Johnston reported on the Association’s financial accounts. Interest rates had declined further, which would affect income derived from term deposits. Funding had been set aside for the Professor Raymond visit in July. The Council discussed the annual budget and agreed that membership subscriptions for the 2009/2010 financial year would remain unchanged. Closer ties with CLANZ were discussed. Mr Slattery QC at the Sydney conference had talked about the emerging trend of large businesses and government departments expanding their numbers of in-house lawyers with practising certificates who briefed the Bar directly. According to Mr Slattery, some of the work which used to go to firms was now going straight to the Bar. Ms Davenport agreed to make contact with CLANZ. The Council agreed to again offer two full scholarships for recently admitted members to attend this year’s NZLS Litigation Skills course. Mrs Pearson provided an update on the new membership database. Given the scale of the upgrade and other ongoing projects, the Council agreed that Mrs Pearson should look to engage a part-time support person. Mr Gudsell reported that Mr Martin had not yet provided the professional indemnity insurance information which the Council requested at the October meeting. The Council agreed that Mr Gudsell should urgently contact Aon with a view to obtaining a report on negotiations for insurance cover for the cover period beginning 1 May 2009 to 30 April 2010. continued over...

2008-2009 Council contact details COLIN CARRUTHERS QC - President Ph: 0064 4 471 4275 Fax: 0064 4 471 1195 P O Box 305, Wellington crc@crcarruthers.co.nz TERRY SISSONS - Vice President - Wellington Ph: 0064 4 471 1380 Fax: 0064 4 499 8795 P O Box 23063, Wellington terry.sissons@xtra.co.nz KEN JOHNSTON - Treasurer Ph: 0064 4 471 2727 Fax: 0064 4 499 4620 P O Box 5058, Wellington k-johnston@clear.net.nz JOANNE VERBIESEN Ph: 0064 4 917 1083 Mob: 0064 21 616 711 P O Box 117, Wellington 6140 joanne.verbiesen@stroutstreet.co.nz MIRIAM DEAN QC - Vice President - Auckland Ph: 0064 9 377 8959 Fax: 0064 9 377 8960 P O Box 4111, Auckland miriam@barrists.co.nz STEPHEN MILLS QC Ph: 0064 9 307 9820 Fax: 0064 9 307 1572 P O Box 4338, Shortland Street, Auckland stephen.mills@shortlandchambers.co.nz KATE DAVENPORT Ph: 0064 9 307 8787 Fax: 0064 9 307 8788 P O Box 141, Shortland Street, Auckland kate@katedavenport.co.nz GRAHAM KOHLER Ph: 0064 9 309 1769 Fax: 0064 9 377 6956 P O Box 4338, Auckland kohler@shortlandchambers.co.nz ANTHONY ROGERS Ph: 0064 9 373 3196 Fax: 0064 9 377 4850 P O Box 1771, Auckland agvr@xtra.co.nz CHRISTOPHER GUDSELL QC - Vice President Regions Ph: 0064 7 839 3290 Fax: 0064 7 834 0587 P O Box 19085, Hamilton ctgudsell@xtra.co.nz ELLIOT HUDSON Ph: 0064 7 839 6644 Fax: 0064 7 839 6610 P O Box 19252, Hamilton elliothudson@xtra.co.nz JONATHAN EATON -Vice President - South Island Ph: 0064 3 372 3466 Fax: 0064 3 365 2592 P O Box 13-868, Christchurch j.eaton@.bridgesidechambers.co.nz TONY HUGHES-JOHNSON QC Ph: 0064 3 365 2158 Fax: 0064 3 365 7273 P O Box 286, Christchurch achj@xtra.co.nz JOHN MATTHEWS Ph: 0064 3 409 2010 Fax: 0064 3 409 2012 PO Box 1770, Queenstown jgmatthews@xtra.co.nz 20

Mr Carruthers provided an update following his communications with Mr Marshall QC regarding representation on the Rules Committee. Mr Mills provided a preliminary report on the case management submission on written briefs. He reported that there had been divergent views expressed from members. Messrs Clive Elliott and Ken Johnston were co-opted to assist Mr Mills with drafting the submission. Ms Dean had also participated. The Council considered two applications for temporary dispensation from the Intervention Rule taking into account the nature of the cases; levels of competence of counsel; and handling of money. The Chief High Court Judge joined the meeting over the lunch period and provided an update on access to court records; feedback on the fast track practice note; court ordered mediation funding; and the written briefs consultation paper. The Council considered and discussed the draft guidelines for courtroom etiquette as provided by the Chief High Court Judge. Mr Sissons reported on the “Take the Lead and Shape Your Future” seminar due to take place on 5 March in Wellington. Ms Dean provided an update on the proposed Professor Raymond seminars and workshops in late July 2009. Essentially, two programmes were envisaged. One was a halfday seminar aimed at the junior/ intermediate litigators and the other a full-day intensive workshop aimed more at senior litigators.

Mrs Pearson advised that a “call for papers” had been dispatched to members enquiring as to whether they would be interested in presenting a paper at this year’s annual conference. Mrs Pearson raised the idea of a President’s Award which would provide the Council the ability to recognise the achievements and/ or contributions of any member of the legal profession, regardless of whether or not they hold a current practising certificate. The Council agreed in principle that this was a good concept to adopt and perpetuate annually. Ms Dean reported on the prospect of a follow up seminar to the “Civil Litigation in Crisis - What Crisis?” conference. She will confer on this with the Legal Research Foundation and Legal Issues Centre. The Council considered an appropriate approach to the Bar Care Programme, specifically, what it would offer and how it would be funded. Ms Davenport provided an action plan for the launch of our Equitable Briefing Policy, which included target launch date; wording of the policy; and additional research on target markets. Mr Clive Elliott joined the meeting as part of an arranged invitation. Mr Elliott updated the Council on International Bar Association matters of interest. The Council resolved that Mr Elliott be appointed as an NZBA representative on the IBA Council, along with Mr Carruthers.

Marsh Limited Members will have received communications from the President of the Association regarding the appointment of new insurance brokers, Marsh Limited. If members have any queries regarding the status of their professional indemnity insurance cover they should contact Marsh on 0508 208 208. This tollfree number has been set up by Marsh exclusively for NZBA members.