At the Bar September 2008

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At The Bar

September 2008

Outgoing President’s Eighth Report Finds Bar In Good Heart As reported by Jim Farmer QC at the 2008 Annual General Meeting in Sydney

Delivering his final and eighth report as president of the New Zealand Bar Association had been the most satisfying as it recorded the continued progress of the association as an important, effective and influential professional body, said Dr James Farmer QC. He said that it was truly amazing that the association had grown from such small beginnings to an association of 820 voluntary members who joined for no other reason than that they saw value to themselves in belonging. Dr Farmer noted that the annual conference, which had traditionally been held in Queenstown, had in 2007 been moved to Christchurch, where it had proved to be a considerable success. In 2008, the association had for the first time ventured offshore to Sydney. It could be expected that the success of that conference would encourage further travel plans in the future, perhaps aligning the association with some of the highly successful conferences of the Australian Bar Association held in Europe and North America.

Retired Court of Appeal judge and inaugural NZBA president, Ted Thomas with Monique Pearson, NZBA Executive Director, and outgoing President Jim Farmer QC

the year included a junior barristers’ cocktail function and a 20th anniversary cocktail function. Dr Farmer said that the council had continued to meet regularly in locations around the country, as well as experimenting with holding a council meeting by videoconference as a means of reducing costs. Pursuant to changes made in 2007 to the constitution, four vicepresidents had been elected – Miriam Dean QC in Auckland, Chris Gudsell QC in Hamilton, Colin Carruthers QC in Wellington and Jonathan Eaton in the South Island.

Dr Farmer said that the NZBA had in February 2008 joined with the Legal Research Foundation to run a well-attended and provocative conference on the state of civil litigation titled Civil Litigation in Crisis - What Crisis? On 10 July a seminar had been held for junior and intermediate litigators titled Take the Lead and Shape Your Future. It had been so successful that it was to be repeated Council members had been kept busy in October. On 14 March 2008, the with submissions, and the perenniallyNZBA had acted as joint host with See pages 14 & 15 controversial issue of the intervention the New Zealand Law Society at a rule had occupied much time and special dinner to celebrate the 50th attention. Dr Farmer said that Trevor Shiels had continued anniversary of the permanent Court of Appeal. his work as Treasurer, and also undertook the drafting of The association’s support of and relationship with the further constitutional changes. Chris Gudsell QC and David judiciary had also been marked by the second annual Bigio had been involved in continuing negotiations over the Bench and Bar dinner, held in Auckland in 2008. Dinners difficult issue of insurance cover. had also been held in Auckland and Wellington to celebrate During the year, the association had appointed as life the appointments of new silks. On 13 June, in conjunction members former judges Simon Lockhart QC, Tom Goddard with the Auckland District Law Society, a dinner had CNZM, John Hansen DCNZM and Noel Anderson QC. been held in honour of Justice Noel Anderson to mark his Dr Farmer said that the wisdom of having a full-time retirement from the Supreme Court and to honour over 20 Executive Director had continued to be vindicated. years of service on the bench. Other functions held during

2008 Annual Conference photos inside

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INSIDE THIS ISSUE Pg 1 - Outgoing President’s Eighth Report Finds Bar In Good Heart Pg 2 - Bright Tomorrow for the Bar Pg 3 - Direct Briefing Major Opportunity for Bar Pg 5 - End of Mega-Litigation Predicted By Judge Pg 7 - Barristers Encouraged to Practise TransTasman Pg 8 - International Conferences Pg 9 - Bar Chat Pg 9 - Executive Director’s Annual Report Pg 10 - Membership Statistics Pg 11 - Junior Barristers Awarded NZLS Litigation Skills Scholarship Pg 12 - Wellington Junior Barristers’ Function 27 June 2008 Pg 13 - Auckland 20th Anniversary Celebration 3 July 2008 Pg 14 - First International Conference, Sydney, 15 & 16 August 2008 Pg 16 - NZBA Successful “Beyond Wildest Dreams” Pg 17 - NZBA Council Summary of Meeting Minutes Pg 18 - Indemnity Insurance Re-negotiating Pg 19 - Depression Warning for Bar

EDITOR Catriona MacLennan Tel: 0064 9 378 0964 Email: catmac@clear.net.nz EDITORIAL COMMITTEE Miriam Dean QC Convener Tel: 0064 9 377 8959 Email: miriam@barrists.co.nz Monique Pearson Tel: 0064 9 303 4515 Email: nzbar@nzbar.org.nz DESIGN & PRINT Amanda Brett, Kinetech Design & Print Tel: 0064 9 576 8393 Email: amanda@kinetechprint.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

Outgoing President’s Eighth Report Finds Bar In Good Heart cont... Monique Pearson had provided a service that was highly professional, showing remarkable dedication and enthusiasm. Dr Farmer said that he had no doubt that the future of the independent bar was both promising and vulnerable. The legal profession was going through a period of turmoil, which provided opportunities for those practising at the bar. The NZBA had already increased its influence by taking the initiative in assisting the New Zealand Law Society in the promulgation of new regulations affecting lawyers’ practice. The association had also obtained the right of appointment of one member of the council of the NZLS without that affecting its autonomy. Dr Farmer said that

the vulnerability arose from the fact that there were many who did not understand the position of the separate, independent bar and the reasons for it. The opening up of the rank of Senior Counsel to lawyers in firms was evidence of that. So too were the views of those who saw the intervention rule as a form of restrictive trade practice. Dr Farmer concluded that he was proud to have served the association, and of what had been achieved in recent years. The camaraderie evident at conferences, dinners and other functions was always a matter of great satisfaction as it evidenced a common pride in being a barrister. It was that pride which would ensure the survival of the separate bar in New Zealand.

Bright Tomorrow for the Bar Annual Conference 2008 : Special address by Justice Kirby

There were good reasons to be optimistic about the future of the independent bar in both New Zealand and Australia, High Court of Australia judge, Justice Michael Kirby, said in speech notes prepared for the conference. Justice Kirby was ill and unable to present his speech, but said in the notes that former High Court of Australia judge, Justice Michael McHugh, had recently expressed pessimism about the future of the bar. He had pointed to the decline in practice areas involving lucrative work for advocates – such as personal injury litigation, the failure to produce advocates with the mighty reputations of their predecessors, and the lack of daily media coverage of barristers’ work which had in the past led to fame and fortune in the public esteem. Justice McHugh had also highlighted the abolition of most civil jury trials and the fall in the orality which was the special skill of advocates, concluding that the “golden age” of the bar was gone forever. However, Justice Kirby said that his viewpoint was more optimistic. He said that today’s Australasian

lawyers should rescue their imaginations from the stories of the great advocates of yesteryear England, while safeguarding the peculiarly English system of law adopted in Australia and New Zealand. He said that it was in that system of law itself that the seeds of confidence in the continuing relevance of barristers were to be found. Justice Kirby said that the successes of contemporary Australasian barristers who operated in their own countries with their distinctive, more egalitarian cultures and realities should be recorded more energetically. Yearning for a past, golden age which had significant flaws was unfruitful. Building skills in advocacy suited to the present time would do more to ensure the bar’s survival. Justice Kirby pointed to a number of factors which suggested a potentially bright future for the independent bar. He said that advocacy skills required a special talent. Although the growing importance of written submissions had entailed a comparative decline in oral advocacy, no-one should say that oral advocacy was unimportant continued over...


Bright Tomorrow for the Bar cont... in courts and tribunals. It represented the life blood of independent decisionmakers, and that was unlikely to change. It was the persuasion of advocates that sharpened the controversies, and planted in the minds of judges the ideas that must be assembled to construct decisions. Without good advocacy, Justice Kirby said that good judicial decisions would be much less likely to emerge. He paid tribute to the barristers who had assisted him over his years as a judge in reaching conclusions and offering reasons to explain them, saying that it was almost impossible to conceive of the performance of judicial duties without such assistance in virtually every case. Justice Kirby went on to say that some areas of advocacy work had diminished or disappeared in recent years, but other work had expanded greatly. Experience over hundreds of years indicated that a small number of those who entered law school each year would continue to aspire to be the advocates who were the “lone rangers” of the law. The history of the bar in both Australia and New Zealand indicated that adaptability was crucial to the “barrister class” whose life and work were constantly changing. The careers of individual barristers would suffer and some would fall. Particular work would disappear and there would be a shaking out of those who could not, or would not, adjust. However, said Justice Kirby, the notion that the occupation of advocates as a guild of clever and useful individuals would “fall” seemed most unlikely. The need for persuaders, explainers, courageous representatives and brave arguers would continue, substantially undiminished. He concluded that the assurance of the survival of the barrister class in Australasia lay in the very individuality of those who made up its numbers. That individuality, reinforced by years of grueling practice, helped protect the culture of individual dignity and rights and the rule of law which were among the most precious features of the societies of Australia and New Zealand. Advocates should rejoice in those facts as they were reasons for optimism.

Direct Briefing Major Opportunity For Bar Annual conference 2008 : The changing face of a barrister’s practice - the issues facing the bar in the 21st century

An emerging trend of large businesses was now coming straight to the bar, and governments expanding their and the bar needed to be ready to deal numbers of in-house lawyers with with this change. practising certificates who briefed the Mr Slattery said that there were no bar directly had the potential to be of comprehensive statistics about briefing great benefit to the independent bar, of barristers by corporate counsel, but said Sydney barrister, Michael Slattery he had conducted his own informal QC. He told the NZBA’s 2008 Sydney survey in Sydney. This showed that conference that the development QBE had doubled its direct briefing could significantly benefit the bar if it of the bar between 2003 and 2008. was encouraged, but also presented Caltex Australia had steadily increased dangers. Mr Slattery, the immediate selective briefing for specialist tax and past president of the New South Wales intellectual property law advice, while Bar Association, spoke at the opening the Sydney City Council conference session had started an in-house “QBE had doubled its department to run titled The changing face of a barrister’s direct briefing of the regulatory prosecutions practice – issues brief the bar. bar between 2003 and and facing the bar in the The Commonwealth 21st century. He said 2008. Caltex Australia Bank had 100 inthat direct briefing by house lawyers, with in-house lawyers was had steadily increased the number remaining occurring mainly in selective briefing for static, but it had briefed relation to advisory the bar directly since specialist tax and work such as tax and 1947. NAB had 15 intellectual property, lawyers in New South intellectual property and small litigation Wales, a doubling law advice.” of a repetitive nature. of the number since There was a clear 2003, and was rapidly trend away from larger businesses increasing its use of direct briefing. sending all their work straight to larger Westpac and ANZ had static numbers law firms, with statistics in recent of in-house lawyers and did not brief years showing a marked decline in the the bar directly. number of lawyers in firms, coupled Mr Slattery said that the reasons for with a rise in the numbers both of the growth in direct briefing were corporate counsel and of barristers. tied to the reasons for practitioners Some work which used to go to firms continued over...

Annual Conference 2008 : The changing face of a barrister’s practice - issues facing the bar in the 21st century

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Direct Briefing Major Opportunity For Bar cont... leaving large firms, which included lawyers going overseas or to the bar, lifestyle choice and partnerships being tightly held. In addition, the bar’s cost competitiveness for the same quality of legal work was becoming more widely known. That was epitomised by the stories of former senior associates who said that they were happy to do for $A200 an hour work which their former firms had charged out at $A450 an hour. Mr Slattery said that barristers had simpler structures for obtaining the right answers more quickly. He said that, if contact could be made by barristers with larger organisations prepared to directly brief work which would otherwise go to firms, the barristers would obtain the work. However, Mr Slatttery also cautioned that there were a number of issues of which barristers should be wary. Barristers being directly briefed were likely to face strong pressure to take on solicitors’ work, and must ensure that they adhered to the rules in relation to barristerial work. There was also likely to be pressure for barristers to reduce their fees, and barristers who worked regularly with particular solicitors might potentially compromise their independence. Mr Slattery said that the issue of legal professional privilege should be considered, and barristers should ensure that their retainers contained clauses providing that instructions would at all times be provided by solicitors with practising certificates. He said that many government departments and larger corporates were keen to brief the bar but did not know how to do so. Instructing solicitors had traditionally provided the link which matched the appropriate barrister with the required work. In the absence of this, he said that the mechanism used in Sydney and London was that of the barrister’s clerk, a position which had no tradition in New Zealand. There was also a need to reassure law firms that barristers were not seeking to take away their work. Big ticket litigation would still be carried out by large firms. Sydney barrister and Australian Bar Association President, Tom Bathurst QC, said he believed that there was considerable life yet left in the bar. However, he said that barristers must confront the issue of

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the increasing complexity of the law, which was leading practitioners to focus exclusively on specialist areas of practice. This trend must not lead

“It was important for the bar to retain its identity and remember that its particular role was that of advocacy.” practitioners to lose sight of the cab rank rule, or to forget that advocacy was an art in itself, and not an adjunct to a particular specialty in law. Mr Bathurst warned that barristers must be alive to the danger that legislative or other changes could result in a slashing or complete disappearance of work in a particular field. That had happened in Australia in relation both to personal injury and to much merger and acquisition work. For that reason it was important for the bar to retain its identity and remember that its particular role was that of advocacy, and that practitioners should be able to turn their hands to many different fields of law. Mr Bathurst referred to what he described as the extraordinary specialisation at the United Kingdom bar, which had resulted in entire

chambers being devoted exclusively to, for example, reinsurance work. There was also pressure for criminal barristers to be able to form partnerships so that legal aid work could be bulk funded. Mr Bathurst said that Australasian barristers should be available to act in relation to broad areas of work to help keep the bar relevant and ensure that it provided good services to clients and earned members good livings. Sydney barrister, Bret Walker SC, discussed the new responsibilities and new dangers for barristers in relation to opinion work in the 21st century. He said that, when it was known that clients or their advisers intended to deploy opinions to the clients’ advantage in the regulatory field, it was important for barristers to preserve the distinction between opinions and submissions. He predicted that, in the near future, there would be a court case which would consider the liability of barristers in relation to opinions. He advised barristers to ensure that they adhered to professional rules when providing opinions, and resisted pressure to tailor opinions to suit clients. Outgoing NZBA President, Dr James Farmer QC, said that he remained optimistic about the future of the bar as an essential component of the legal system. He said that attempts had been made both in New Zealand and in Australia to break down the separate bar, but it had been protected by the fact that clients still wished for the services of barristers. Although modern advocacy had become more clinical, there were still opportunities for oral advocacy to flourish and barristers had opportunities to adapt their advocacy skills to increasingly complex cases and to facilitating settlements.


End of Mega-Litigation Predicted By Judge Annual Conference 2008 : The internationalisation of Litigation

The legal system was almost at the end of the age of uncontrolled, large-scale litigation, Justice Ronald Sackville told the NZBA conference. He said that the courts had a growing responsibility to manage civil litigation, and particularly very large cases. This had led to fundamental changes in the roles of judges in the last two or three decades. Justice Sackville said that concerns about mega-litigation had emphasised the significance of the concept of proportionality in the legal system. He used as an example the “C7 case” over which he had presided – Seven Network Ltd & Anor v News Ltd & Ors. The Australian litigation involved claims of misuse of market power relating to broadcast rights to AFL and NRL matches. The trial occupied 120 hearing days, with three senior counsel and six junior counsel appearing for the plaintiff, and seven senior counsel and nine junior counsel representing the defendants. There were 115,386 pages of evidence, and 5000 pages of written submissions. The judgment occupied 1160 pages and the case involved 85,653 documents. C7 spent $A27 million on legal costs before the trial began, and the cost of the case totalled $A200 million. At the outset of the case, C7

had said that it was claiming $A1.1 billion, but by the end it had reduced its claim to $A194.8 to $A212.3 million. Its claim was dismissed, but an appeal is to be heard in November. Justice Sackville said that mega cases such as this showed the strain that large-scale disputes placed on the courts. The litigation was labelled “not only extraordinarily wasteful but (bordering) on the scandalous.” Justice Sackville said that dispute resolution machinery was a scarce, publicly-funded resource. Justice according to the law incorporated timelines, and disproportionatelyexpensive litigation reinforced public perceptions that the judicial system was incapable of remedying injustices. He said the the courts had a responsibility to manage and control litigation in accordance with the principle of proportionality. However, there were real questions about whether reforms implemented in England simply front-end loaded costs relating to litigation. Justice Sackville predicted that the ongoing development of case management would lead to even greater changes in judicial roles. He said that the courts needed to move away from the notion that every party – and especially every well-

resourced party – had the right to a full and perfectly fair hearing on every issue that party wished to raise. The community could not afford this. Both the English and Australian courts were slowly recognising that their watchword must be proportionality,

“Just as litigation was becoming locationindependent, she said, so were barristers’ reputations. She said that it was now almost more important to have a good website rather than a good set of chambers.” rather than absolute justice. If this marked the end of the era of mega litigation, he concluded, that would be a loss that was easily borne. Australian barrister, Katrina Howard SC, discussed her multinational patent law practice, speaking about how large corporates might continued over...

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End of Mega-Litigation Predicted By Judge cont... increasingly undertake litigation in numerous countries at one time. As a result, there were opportunities for barristers able to practise in more than one jurisdiction to be involved in the litigation in more than one country. This meant that valuable insights could be gained by, for instance, initially running the litigation in a small jurisdiction before it ran in a larger country. Ms Howard said that she had taken steps to be able to practise in the United Kingdom, and anticipated that this would open the door to expanding her practice. Just as litigation was becoming locationindependent, she said, so were barristers’ reputations. She said that it was now almost more important to have a good website rather than a good set of chambers. New Zealand barrister, David

Goddard QC, spoke about transTasman litigation, saying that there was a strong trend for barristers to practise in more than one jurisdiction. He predicted that even more opportunities for such work would emerge in the next decade. Mr Goddard detailed moves to harmonise New Zealand and Australian legal processes, noting that the specific trans-Tasman regime for obtaining evidence between New Zealand and Australia had been very successful and was a forerunner for other jurisdictions. However, he noted that there were still gaps in processes. Mr Goddard spoke about the TransTasman court proceedings and regulatory enforcement treaty signed on 24 July 2008, which was at present being scrutinised by Parliaments on both sides of the Tasman.

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Implementing legislation would be required both in New Zealand and in Australia. He said that the treaty provided for trans-Tasman service of all civil proceedings, without a requirement for leave. Stays would be able to be sought in the court in which the proceedings were issued if another court would be the most appropriate forum. Final judgments would be enforceable using a simple registration procedure, and courts in both countries would be able to grant interim relief in support of proceedings in the other country. Fines under designated regulatory regimes would be enforceable as money judgments, and the availability of trans-Tasman subpoenas would be extended. Commerce Commissioner Denese Bates QC spoke about New Zealand’s role in international cartel enforcement. She said that, as globalisation today was commonplace and unavoidable, regulatory agencies needed to take a global approach in the same way that commercial entities did. She said that the legal issues thrown up as a result were of great interest, and the commission was generating some ground-breaking jurisprudence. Ms Bates said that, just as the commission drew strength from overseas developments, there were opportunities for competition law practitioners to look outside New Zealand to see what could be learned from other countries. Insights could be gained into the mind of the regulator, and support might be found for arguments which would assist advocacy before or against the New Zealand Commerce Commission. Ms Bates said that the courts were often keenly interested in whether and how competition law questions had been answered overseas.


Barristers Encouraged to Practise Trans-Tasman Annual Conference 2008 : How to develop an international practice with particular reference to trans-Tasman legal practice

Barristers attending the NZBA’s first offshore conference, held in Sydney, were encouraged to consider taking their practices trans-Tasman. New South Wales Bar Association Executive Director, Philip Selth OAM, outlined the procedure for New Zealand barristers seeking registration as barristers in New South Wales under the TransTasman Mutual Recognition Act, saying that they should first approach the Supreme Court of New South Wales in order to be admitted as lawyers of that court. Inquiries about the process could be forwarded to the Registrar of the Supreme Court of New South Wales at supreme_court@ courts.nsw.gov.au He drew practitioners’ attention to the New South Wales Supreme Court’s Practice Note Number 8, which set out how to be admitted under the mutual recognition legislation. Mr Selth said that New Zealand barristers should then approach the New South Wales Bar Association. He noted that they would not be able to practise unless they held professional indemnity insurance complying with the Legal Profession Act 2004. Mr Selth said that, if enough New Zealand barristers wished to hold New South Wales’ practising certificates, he would be prepared to ask the Attorney-General to approve a New Zealand policy. New Zealand Law Society President, John Marshall QC, urged New Zealand barristers to look at the possibilities for working in Australia. He said that there were also opportunities for young Australian lawyers to obtain work as litigation lawyers in New Zealand firms. Mr Marshall said that he would like to see the bar associations in New Zealand and Australia work on exchange programmes for junior barristers so that they could gain experience in the other jurisdiction. While this would no doubt require a good deal of planning and commitment from senior counsel to provide opportunities, he said that he believed that it was worth a try. Mr Marshall said that the New Zealand Law Society’s view was that Australia and New Zealand should have a

uniform approach to the recognition of foreign qualifications. That was

“He said that there were also opportunities for young Australian lawyers to obtain work as litigation lawyers in New Zealand firms.” being worked on and it had been pleasing to see that, in February 2008, the Australian Law Admissions Consultative Committee had endorsed a uniform set of principles to apply in Australia. Australian barrister David Shavin QC, who practises in Australia’s eastern and southern states as well as in New Zealand, spoke about conducting litigation on both sides of the ditch.

He said that there were logistical complications, including surprising difficulties with time zones and flights. There were also striking differences in the ways in which the profession organised itself in New Zealand, in comparison with what was done in Melbourne and Sydney. It was far more common in New Zealand than in Australia for senior litigators in major firms to undertake serious appearance work. Mr Shavin said that, in his experience, Australian advocacy was more “robust” than that in New Zealand He said that the New Zealand practices of barristers “employing” juniors in their chambers and maintaining correspondence files which included communications with opposing solicitors were quite foreign to members of the Victorian and New South Wales bars. Mr Shavin queried whether this did not carry with it a danger of blurring the role of the independent bar and that of the solicitor. He urged the New Zealand bar to be jealous of its independent tradition and to think carefully about its roles and processes and the scope of the work which its members performed. Mr Shavin encouraged more New Zealand barristers to undertake trans-Tasman work.

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INTERNATIONAL CONFERENCES 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.

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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 & NORTHLAND: Anya Borchardt, Blair Edwards, Brianna Parkinson, Christine Meechan, Claire O’Donnell, Dianne Partridge, Edward Grove, Frank Godinet, Grant Amer, Ian Bassett, Jane Hunter, Jane Latimer, Jenny Verry, Kathryn Buchanan, Kelly Quinn, Laurene Holley, Michael Lloyd, Naomi Cervin, Paul Sills, Peter Webb, Saul Holt, Shane Tait, Sinead McLaughlin WELLINGTON: Douglas Ewen, Janet Girvan, Lucie Scott, Rebecca Scott, Sandy Baigent CHRISTCHURCH: Colin Eason, David Bunce, Douglas Brown, Garry Collin, Janet Girvan, Ruth Buddicom DUNEDIN: Ann Leonard, David More WAIKATO & BOP: Dawn Reynolds, Prue McGuire, Rachel Dawe, Rachel Paul, Sarah Lindsay, Trudy Talbot, Vaioleti Ho Kum OVERSEAS: Simon Hughes

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.

Executive Director’s Annual Report The last twelve months have been endlessly fascinating, absorbing and rewarding – and certainly very busy. Overall, the Association is well positioned to move into the new environment created by the changes of legislation, and as we enter into this new era I am reminded that change is about celebrating our strengths and building on them. Last year I reported in some detail on the initiatives that the council had planned for 2008. These included: • Implementing a mentoring programme; • Developing training seminars and symposia for junior/intermediate litigators; • Providing a forum for junior barristers and holding regular junior barristers’ functions; • Increasing the membership activities in different centres; • Growing the bulk buying portfolio; and

• Strengthening ties with our Australian counterparts.

First international conference

I could not be more pleased to report that the above objectives have been successfully achieved.

The conference in Sydney was a tremendous success and the feedback received from both New Zealand and Australian delegates has been most encouraging.

Raising the bar Each year the Association offers a full scholarship to two new members of the independent bar to attend the NZLS Litigation Skills course. This year’s recipients of the Litigation Skills scholarships are Jenny Verry and Douglas Brown. The first of many NZBA seminars aimed at assisting junior / intermediate litigators – Take the Lead and Shape Your Future - was held on 10 July at Bell Gully. Due to the huge success of this seminar the council has decided that it will be repeated on Wednesday, 29 October. Details will be posted on the Association’s website.

I would like to extend the council’s appreciation to all our speakers for making the programme informative and entertaining and also to our sponsors, ANZ Private Bank, OfficeMax, Bankside Chambers, Shortland Chambers and LexisNexis for their generous support. Members will soon be able to download the conference papers from the members-area of the Association’s website – www.nzbar.org.nz. The formal dinner was held at the Museum of Contemporary Art and photographs of the event can be viewed on pages 14 and 15 of this publication. continued over...

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Membership Statistics Membership of the Association continues to grow and evolve. 649 as at 30 September 2006; 674 as at 31 March 2007; and 773 as at 31 March 2008. There are presently 826 members of the New Zealand Bar Association. The following is a statistical profile of membership:

Number of full members 0-3 years Male Female

17 18

Number of full members 4-7 years Male Female

26 23

Number of full members 7+ years Male Female

348 155

Executive Director’s Annual Report cont... Financial accounts

productive and successful year.

The accounts which were provided at the 2008 AGM were the first full set of accounts reporting as at a 31 March balance date. Members will recall that in 2006 the Association changed its balance date from 30 September to 31 March. As a result, at last year’s AGM we reported for the year to 30 September 2006, and then for the six months to 31 March 2007. The 2008 accounts will be uploaded to the Association’s website in due course.

President: Colin Carruthers QC

As the Association grows in terms of membership and “turnover”, it is increasingly important to remain astute in monitoring revenue and expenditure. Members are reminded to pay their annual subscriptions in a timely manner so that the Association is better able to reliably budget for future initiatives. The due date for subscription renewals is 20 May each year. If you are unsure of the status of your membership, please contact me at monique.pearson@nzbar.org.nz or on 09 303 4515.

Election of 2008-2009 office holders I am very pleased to welcome the 2008-2009 council members and look forward to working closely with them in what I believe will be another

Council: Kate Davenport, Miriam Dean QC, Jonathan Eaton, Christopher Gudsell QC, Elliot Hudson, Tony Hughes-Johnson QC, Ken Johnston, Graham Kohler, Stephen Mills QC, Anthony Rogers, Terry Sissons, Joanne Verbiesen (junior barrister representative) Special thanks I wish to acknowledge and thank the 2007-2008 council members, and in particular the President, Jim Farmer QC, who has done so much more than is generally known to advance the interests of the New Zealand Bar Association, its members, the wider legal profession and the community generally. Thank you also to members of the Association who have contributed to the various submissions made by the Association’s rules sub-committee. The council is very grateful for all your support and assistance. I should also like to record my thanks for the administrative support I received from Kate McDermond during her time with the Association. Monique Pearson

Number of Silks Male Female

61 12

Number of associate members Male Female

88 65

Number of honorary life members Male Female

10

13 0

2007 - 2008 Council Members Back row from left to right: Terry Sissons, Trevor Shiels, David Bigio, Kate Davenport, Stephen Mills QC, Elliot Hudson, Jonathan Eaton Front row from left to right: Colin Carruthers QC, Jim Farmer QC, Monique Pearson, Chris Gudsell QC, Miriam Dean QC Absent: Tony Hughes-Johnson QC, Ken Johnston, Matthew Ward-Johnson, Lauren Lindsay


Junior Barristers Awarded NZLS Litigation Skills Scholarships (09) 838 3608, Fax (09) 838 3609 and Mobile 021 411 867. Douglas Brown completed an LL.B and LL.M (Hons) at the University of Canterbury before beginning practice in 2003, working for Tony Garrett as a junior barrister. After a short stint in a firm convinced him of a preference for the independent bar, Douglas returned to Tony Garrett’s office and continued to practice in Criminal and Traffic law,

Jenny Verry (above) completed an MA (Hons) and LLB at the University of Auckland. For the first two years she worked as a junior for senior Auckland criminal barristers Lester Cordwell and then Ron Mansfield. In 2006 she commenced practice at the independent bar and practises solely in criminal law. “I am very thankful to the New Zealand Bar Association for awarding me one of the scholarships to attend the New Zealand Law Society Litigation Skills Course in Christchurch. The course was run by Robert Lithgow QC and Susan Hughes QC. The hours and the workload were tough but well worth it. The course was an invaluable experience. The faculty were very experienced and included High Court and District Court Judges, QCs and senior counsel. The critiques of my performance by the faculty were a rare opportunity to learn and improve my skills as an advocate. I was in Judge Barbara Morris’ Team (Team M aka “Team Magnificent”) and the faculty were very supportive and encouraging. It was great to meet other participants from other parts of New Zealand and from other areas of practice.” Jenny works from Westside Chambers in Henderson, Auckland. Her contact details are: Westside Chambers, 361 Great North Road, Henderson, PO Box 78 102, Grey Lynn, Auckland. Ph

sleep. Nobody mentioned that we would be quite so immersed in the fundamentals of the barrister’s craft. Yet by the end of the week Justice Priestley told us that we had crammed the equivalent of 4 years experience into that one long week. If I may say so, Your Honour: it felt like it. But I have come out of the course at the end of a week at Lincoln with a far better understanding of the art that we

“I am very thankful to the New Zealand Bar Association for awarding me one of the scholarships to attend the New Zealand Law Society Litigation Skills Course in Christchurch.” with some Civil and RMA work on the side. Douglas now practices out of Temple Chambers in Christchurch, concentrating primarily on Criminal Defence work. “The certificate of completion that one receives at the end of the Litigation Skills Course somewhat understates matters when it states said course is an ‘intensive week long course’ in litigation skills. To call it intensive would be similar to describing Mount Cook as being rather a large hill. Of course, I was not to know this when I arrived at Lincoln on 17 August to begin the course. Looking back at what seems like months of work but, in actuality, was just on seven days of continuous drills, reviews, critiques and preparation to let us move to that next step in our litigation career, I was woefully unaware of what lay ahead. It would appear that absence makes the heart grow fonder, because questioning those colleagues who had attended in years past elicited responses ranging from people met, shenanigans got up to and food and drink consumed. Not one mentioned anything about long, arduous days combined with long nights with little

at the independent bar practice. The course was worth every minute spent at classes, demonstrations and mock trials. I am indebted to the committee and members of the New Zealand Bar Association for the scholarship that allowed me to attend and I, very humbly, thank all of them for the opportunity.”

Douglas Brown can be contacted at Temple Chambers, 303 Durham Street, P O Box 367, Christchurch, telephone 03 377 2074 or 021 067 6189, or email at dbrown@templechambers.co.nz.

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Wellington Junior Barristers’ Function 27 June 2008

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Auckland 20th Anniversary Celebration 3 July 2008

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First International Conference,

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Sydney, 15 & 16 August 2008

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NZBA Successful “Beyond Wildest Dreams” The New Zealand Bar Association in its first 20 years had met its aims beyond his most optimistic expectations, retired Court of Appeal judge and inaugural NZBA president, Ted Thomas, told a cocktail function marking the anniversary. Justice Thomas said that he had initially resisted the idea of forming a separate organisation to represent barristers sole as he was a “Law Society man” and believed that the society should represent all practitioners. However, he later came to the view that the society did not always represent or promote the best interests of the independent bar and had accordingly convened a meeting of barristers on 2 November 1987 to discuss a separate association. Justice Thomas said that CP Hutchinson had been invited to be the guest speaker, and a steering committee comprising himself as convenor, Raynor Asher, Jim Farmer QC, Noel Ingram and Peter Williams QC had been formed. Justice Thomas recalled that, like him, some of those present were not convinced of the need for a separate body. However, the contrary view prevailed and the association was incorporated on 4 July 1988. He said that the press statement he issued in June 1989 was as true today as it was then. It said that that principal objective of the association was “to promote a strong separate and independent bar, and to promote the interests of barristers and the public in relation to legal representation and the operation of the judicial system.” The statement went on to record that the association would be concerned to maintain the independence of barristers and the judiciary, to encourage a high standard of ethical conduct among barristers, and to promote high quality legal representation and advocacy. Barristers were regarded as specialist advocates able to bring objectivity to their cases, and it was important to preserve and foster these qualities. The association would also be concerned to improve access to the courts and to justice for all persons.

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Justice Thomas recalled that the Law Society had initially been hostile to the association, with its representatives arguing that barristers sole should form a section of the Law Society. He had resisted this and negotiations had continued, with it finally being accepted that, if barristers were determined to form an association, there was nothing the Law Society could do to stop that. Despite the society’s hostility, Justice Thomas said that he had put considerable effort into maintaining cordial relations as he did

“Jim Farmer and successive presidents and councils have done a first-rate job. They have represented the interests of the independent bar with great success.” not want the association to be formed amidst controversy, or with the enmity of the society. Justice Thomas said that the society had earlier obtained rights to the name the New Zealand Bar Association, and had challenged the new body’s intention to use that name. “Alternative names were considered, but no other name fitted as well as the New Zealand Bar Association.” Eventually, I had to advise the Law Society that we would be proceeding with that name and that, if they wanted to prevent us doing so, they would have to do so in court. Perhaps the thought of me appearing as lead counsel with 30 or more juniors, all

barristers sole, was too daunting. And the claim disappeared.” Justice Thomas said that the association had gone from strength to strength since its formation, with membership numbers increasing exponentially and a marked growth in its influence. “Jim Farmer and successive presidents and council have done a first-rate job. They have represented the interests of the independent bar with great success.” In conclusion, Justice Thomas said that it was essential for the independent bar to thrive. Societies required means by which to resolve disputes and to counter the unfair exercise of power, be it political, economic, commercial or any other form of power. The courts provided the forum for the resolution of such matters, but, for the system to be effective, both sides of any dispute must be put before the court in a way which maximised their strength. Lay litigants required a voice to define the strength of the case, refine the arguments until they had persuasive force, and embed the case within the fabric of the law. “It is my firm belief that the more objective the barrister, the more effective that voice will be. This objectivity comes with being a member of the independent bar, with one being removed from the lay client, with being immune from the commercial and other pressures present in even the best regulated law firms, and with becoming the responsible inheritor of a long tradition of robust independence.” For the bar to thrive, it was essential that it have an independent organisation to represent and promote its interests and the interests of the community in having the services of an independent bar. That was the proud function of the association, said Justice Thomas. The association had met its aims beyond even his wildest dreams.


NZBA Council Summary of Meeting Minutes The Council met on Thursday 19 June 2008 at 10.00am by video conference in Auckland, Wellington and Christchurch.

raised also.

Christchurch: Tony Hughes-Johnson QC, Jonathan Eaton

It was noted that the Criminal Procedures Bill had been passed. Concern was raised over the problems with space in the District Court and getting fixtures. The meeting was in agreement that the pressure on the District Court would become intense and it was suggested that the Association stay involved and take an interest in alleviating the problems in the District Court jurisdiction.

Apologies were received from Colin Carruthers QC, Chris Gudsell QC, Kate Davenport, Terry Sissons, Trevor Shiels, Matthew Ward-Johnson

Ken Johnston reported on his meeting with Sir Geoffrey Palmer about the original draft concerning limitation defences.

In the absence of Trevor Shiels, Ken Johnston spoke to the financial accounts. A surplus had been recorded for April, which could be attributed to the receipt of 2008 subscription renewals.

Stephen Mills spoke to the report sent to the Law Commission in response to a request for submissions on access to court records.

Auckland: Jim Farmer QC, Miriam Dean QC, Stephen Mills QC, Elliot Hudson, David Bigio, Lauren Lindsay, Monique Pearson Wellington: Ken Johnston

Miriam Dean reported on the programme sessions and speakers for the Take the Lead and Shape your Future seminar being held on 10 July 2008. Spaces were rapidly filling up with 65 confirmed at the time of the meeting. Bell Gully had offered to host the inaugural event. The Auckland programme was to be viewed as a pilot and, if successful, could be repeated in the Provinces. Monique Pearson reported on the annual conference in the absence of Kate Davenport. Registration information had been sent to Australia and the NSW Bar Association had uploaded the conference material to their website. The Training Committee provided an indication of what the desired barristers’ training model would look like. A suggestion was made to build around the framework a commentary of what occurs in other jurisdictions. The Council discussed the advantages and disadvantages of remote transcription services provided in courtrooms. A comment was made that a number of the technical terms in the case were inaccurately transcribed and the quality of the transcript was poor. The problem of audibility was

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Miriam Dean and Stephen Mills reported on the High Court’s fast track pilot project. Feedback has been given. Miriam Dean reported that a summary of the civil litigation proposals had been circulated to all civil litigation in crisis conference participants and that feedback from delegates would be passed on to the Otago “think tank”. Jim Farmer observed that the Independent was writing an article about the conference. Lauren Lindsay provided an update on the upcoming Wellington junior barristers’ function being held on 27 June at The Bolton Hotel. Judges’ clerks, Crown lawyers and junior barristers had been invited to meet with members of the Wellington Council and senior members of the Association. It was unanimously agreed that the Vice Presidents of each region would host a 20th anniversary celebration. Elliot Hudson announced that he and Chris Gudsell would host an event in Hamilton and would invite all members of the independent bar, whether or not members of the Association. Jonathan Eaton confirmed that he would host a Christchurch cocktail event to celebrate the 20th anniversary, the swearing in of Justice French and to congratulate Judge Neave on his recent appointment.

Take the Lead and Shape Your Future Repeat Seminar

The Bar Council is delighted to report that as a result of the demand and the huge success of its July seminar for junior/intermediate litigators – Take the Lead and Shape Your Future – this seminar will be repeated on

Wednesday, 29 October The seminar will commence at 1.30pm and will be held at the offices of Simpson Grierson. Confirmed speakers include Justice Raynor Asher; Judge Fred McElrea; Alan Galbraith QC; Julian Miles QC; Jim Farmer QC and Deborah Hollings QC. This is an excellent opportunity for junior/intermediate litigators to hear from leaders at the Bar. As last time, an important session will be court room etiquette which was very well received by those attending the July seminar. Once again, places are limited. Therefore, if you would like to attend the seminar, please register as soon as possible.”

An update on the One Society model was received and discussed. The Council discussed at length the implications to barristers of the new Rules of Conduct and Client Care. David Bigio commented that there should be something on the website that would give guidance to our members on how they should prepare disclosure letters and about the Rule change. Ken Johnston agreed and said that we should also provide our members with a draft engagement letter. A “stop press” email would be disseminated to all members of the Association with a link to the website. Chris Gudsell and David Bigio reported that proposed terms and premiums for PI cover were being reviewed with John Martin at AON. Jim Farmer expressed a vote of thanks to Lauren Lindsay for her valuable contribution as Junior Barrister representative during her time on the Council which was met with acclamation.

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Indemnity Insurance Re-negotiating

Cyberspace and Second Life Annual Conference 2008 : International dimensions of legal practice - Global regulation of markets - international sports law - the effect of cyberspace

Conference attendees were initiated into the mysteries of the parallel universe of cyberspace in a session examining the global regulation of markets, international sports law and the effect of cyberspace. Just-retired Federal Court of Australia judge, Justice Roger Gyles, spoke about international commercial arbitration, while barrister Kit Toogood QC discussed international sports law. Barristers Clive Elliott and Stephen Mills QC examined the impact of cyberspace on domestic law, particularly in relation to defamation. Hazards identified in relation to cyberspace included identity theft, the virtual impossibility of ever removing damaging material completely from the internet, and privacy intrusion. Mr Elliott also introduced the conference to the wonders of the “Second Life” website, a virtual world in which people can create a new persona and engage in a wide range of virtual activities.

The Indemnity Insurance programme for members is negotiated each year with effect from 1 May. The programme negotiated at 1 May this year offers a comprehensive package of indemnity/liability insurance with Professional Indemnity as the core. The policies that are companion to the Professional Indemnity policy are offered free of charge as an additional benefit to members. The companion policies are: - Statutory Liability - Employers Liability - Public Liability - Trustees Liability - Directors & Officers Liability These policies should not be regarded as being in the nature of “window dressing”. Claim notifications have been made against some of the companion policies. There has been an increase in the cost to members from 1 May 2008. Premiums have increased by around 10.00%. The minimum policy excess has increased from $2,000 to $5,000. The policy excess is now offered on a “costs inclusive” basis. In the previous year the policy was subject to the more beneficial “costs exclusive” excess. When considering the quality of the cover offered, the cost of the insurance is still considered very competitive especially when compared to terms offered to the balance of the legal profession. The claims history for members in recent years rebuts the popular argument that barristers are a lower Professional Indemnity risk to insurance underwriters than those practices that operate as barristers and solicitors. The promulgation of the Lawyers and

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Conveyancers Act 2006 has given members the option to incorporate. The insurance programme easily adapts to change in the structure where a member elects to form a limited liability company from which to provide professional service. It is a simple matter to endorse a policy currently issued in the name of an individual member to reflect that the policy(ies) now insure a limited liability company. The same policy continues to provide ongoing indemnity for claim notifications arising from the original barrister sole practice. The Rules of Conduct and Client Care require inter alia that practitioners (if required) disclose indemnity arrangements to clients on the basis of one of the following options; * the actual insurance arrangements (name of insurer, indemnity limit, whether the indemnity limit applies to each claim, and the excess payable); or * that the practice holds indemnity insurance that meets or exceeds any minimum standards from time to time specified by the Law Society; or * the fact that there is no cover. Because the minimum Limit of Indemnity is $2 million and the maximum excess is $10,000, the Professional Indemnity programme allows all insured members to disclose on the basis of the second option detailed above when disclosure is appropriate. John Martin, AON The Council of the Association will continue to review market conditions and discuss matters with our broker on an annual basis.

AT A N Z P R I VAT E BA N K , W E H E L P C R E AT E , M A N AG E A N D P R OT E C T YO U R W E A LT H . A S O U R N A M E S U G G E S T S IT’S ALL DONE WITH THE UTMOST DISCRETION.

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2008-2009 Council contact details

Depression Warning For Bar

Annual conference 2008 : The changing face of a barrister’s practice - the issues facing the bar in the 21st century

The independent bar was a strong force but was vulnerable to the pressures faced by all lawyers, said New South Wales Bar Association President, Anna Katzmann SC. She warned that law had scored the worst of the professions for depression in an Australian survey conducted in 2007. Almost 16 per cent of the lawyers surveyed had moderate or severe symptoms of depression, and nearly a third used alcohol or other drugs to deal with that problem. An Australian Financial Review survey had revealed that 45 per cent of young lawyers were considering quitting their jobs in two years. Ms Katzmann said that practice at the bar was particularly stressful, partly because of the nature of the work and partly because of the way it was carried out and the fact that it involved running a small business. Barristers competed with each other and fought with each other in court, with the adversarial process in itself operating as a stressor. She said that barristers often struggled with stress in both their professional and their personal lives without seeking proper assistance. It was regarded as a sign of weakness to admit to oneself, let alone anyone else, that help was required.

South Wales Bar Association was developing ways to safeguard both the public interest and the health and welfare of vulnerable barristers before situations escalated. She described tackling mental illness as a priority for the New South Wales Bar Association. The Bar Council had set up BarCare as a confidential counseling service for barristers who might require professional assistance. In 2008, the association had appointed a psychologist as director of care and assistance, responsible for the triage of inquiries regarding barristers with emotional or psychiatric problems. Barristers were encouraged to seek her assistance, both for themselves and to find out how they could assist colleagues. Other steps taken included providing website information about how to identify the warning signs of depression and supporting ongoing research into the nature and extent of mental health problems among the legal profession. The association had also formed a partnership with beyondblue, the national depression initiative, and encouraged exercise and other stress management techniques. Yoga classes were now offered in the bar common room.

Ms Katzmann said that the New

COLIN CARRUTHERS QC - President Ph: 0064 4 471 4275 Fax: 0064 4 471 1195 P O Box 305, Wellington crc@crcarruthers.co.nz KEN JOHNSTON Ph: 0064 4 471 2727 Fax: 0064 4 499 4620 P O Box 5058, Wellington k-johnston@clear.net.nz TERRY SISSONS Ph: 0064 4 471 1380 Fax: 0064 4 499 8795 P O Box 23063, Wellington terry.sissons@xtra.co.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

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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

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The NZBA wishes to thankby: the sponsors of Supported this year’s annual conference

Tel:BAR 0064ASSOCIATION 9 303 4515 Fax: 0064 9 303 4516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz THE NEW ZEALAND TEL: 0064 9 303 4515 EMAIL: nzbar@nzbar.org.nz WEB: www.nzbar.org.nz


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