New Zealand Bar Association THE OFFICIAL BAR ASSOCIATION NEWSLETTER DECEMBER 2005
BULK BUYING – WATCH THIS SPACE As foreshadowed in the president’s last report, the Council has been exploring the possibility of various bulk buying or discount arrangements with a range of suppliers of products and services to barristers. A committee comprising Miriam Dean QC, Tony HughesJohnson QC and David O’Neill has been working, together with a consultant engaged to assist, with a range of suppliers investigating and negotiating possible discount arrangements for members of the Bar Association. The Council is pleased to report that the efforts have proved to be very successful. In the New Year all members will receive a package of material relating to
discounted supply of a range of “starting point” for their plans. products and services including: By way of a “heads up”, ◆ mobile phones we provide brief details of the ◆ landline phones arrangements that we are currently ◆ office stationery considering and negotiating with ◆ office equipment and suppliers. ◆ legal publications As to mobile phones and office stationery – two heavy usage items for barristers – the Council will be promoting Vodafone and Office Max as preferred suppliers of these products. This is especially because both Vodafone and Office Max have indicated that, depending on the level of usage, the level of discounts available to members may yet be even greater than those which would apply as a
Vodafone – NZBA Plan Vodafone is prepared to offer members of the Association a special NZBA Plan which would involve: • •
$30 per month rental: cf normal rental of $45 per month; 0.30 cents per minute for all calls (day and night), ie
● Cont. on p.2
From the president
An exciting year for the Association T his has been an exciting year for the Association. Among our achievements are:
Solicitor-General and a number of senior and other counsel. A record attendance of 100.
items regularly purchased by barristers. This will be formally launched in the New Year.
◆ A highly successful conference at Queenstown with high quality speakers, including Justice Bastarache of the Canadian Supreme Court, Professor Jack Greenberg from Columbia University and a human rights campaigner of world fame, the Chief Justice, Chief Judge of the High Court,
◆ Just under 100 new members bringing the total membership of the Association to 622.
In the meantime, we have continued to progress debate and discussion on professional issues such as the intervention rule, appointment of Queen’s Counsel, training of new barristers and submissions on various reforms and proposed changes to the High Court and District Court Rules etc. Many barristers outside the Council give valuable assistance in these areas and I am pleased also at the number of responses that we received to our questionnaire on the intervention rule.
In this issue . . . Bulk buying pp.1, 2, 3 President’s message pp.1, 2 Council meetings p.3 Next conference p.3 Bill held over p.4 QC evaluation pp.4, 5 New Attorney-General p.6 Shadow Attorney-General p.7 Australian evolution pp.8,9,11 Experts’ role pp.10,11,12,13 Bar Chat p.13
◆ The introduction of the Council holding its meetings in different centres and accompanying them with social functions for local barristers at which there has been opportunity for the exchange of views on current issues. These took place in Auckland, Hamilton, Wellington, Christchurch and Dunedin. In 2006, it is proposed to move into heartland New Zealand with meetings and functions planned for Tauranga, Palmerston North and Nelson, as well as Auckland and Wellington. ◆ The formation of a bulk buying scheme for stationery, mobile telephone services, insurances, books and other services and
The impression one gets is that those at the bar are busy and, while we all would no doubt like to have better and more interesting cases than some we do, I think that the separate bar is in good heart and on any view is stronger than it has ever been. That is not to say that we can ● Cont. on p.2
Bar Association Newsletter. December 2005. Page 1
Continued from page 1
BULK BUYING – WATCH THIS SPACE
to landlines and all mobile cial pricing on data rate cards for phones; and 3D phones • 0.15 cents for all calls to other members of the NZBA on the Existing Vodafone members Vodafone NZBA Plan. can be transferred to the new NZBA Plan to take advantage of Moreover, the NZBA Plan these arrangements (including would be available to the families qualifying for the free phone if and staff of NZBA members. This they are currently on consumer means that, for the purposes of plans or fixed term contracts with the NZBA Plan, families and staff less than 12 months left to run). would qualify as NZBA members Vodafone may also be prepared to to enjoy these arrangements and, assist members with some of the in particular, to take advantage costs incurred where a member of the excellent 0.15 cents per is switching from an alternative call member to member. (So the supplier to Vodafone. busy barrister who constantly is phoning his/her secretary has the From our inquiries, the ability to save considerably on his/ proposed NZBA Plan will offer her mobile telephone account!) members potentially significant discounts on their mobile phone Furthermore, Vodafone is pre- costs. Although the $30 rental does not include free minutes, pared to offer: because the members would have ◆ Free phone up to the the benefit of all calls at 30 cents value of $400 RRP for new (making a saving of 10 or 15 cents connections signing up to a on each national and international call) and 15 cents on calls to other 36 month term members, it is estimated that ◆ Free chat packs (personal members may be able to save hands free, car charger in up to one third of their current case) will be included on all cost depending on their particular models. current plan.
◆ Free upgrades will be available to members on Furthermore, this is a “starting these plans at the expiry of point” only. Vodafone may be prepared – once it has some 24 months.
idea as to current level of usage Vodafone will also include spe- of the NZBA Plan – to provide customised and better discounts to members on the NZBA Plan.
From the president (Cont. from p.1.)
afford to be complacent about our position and the task of promoting the independent bar as an institution that strives for excellence remains a continuing one. It would be fair to say that only through an Association such as ours can this be done. Together with the members of your council, I would like to wish you all compliments of the season, hope that you have enjoyable and resting holidays and wish you all the best for 2006. Jim Farmer
President, New Zealand Bar Association
The Vodafone NZBA Plan will, however, only be available to members provided we meet an initial membership level to qualify for the plan. We are still reviewing with Vodafone what level of uptake will be required. We would be confident, however, that given the benefits the NZBA Plan will offer members, that we will have sufficient interest to meet this requirement.
Office Max – NZBA Plan Office stationery is obviously something that all members use. After considering a number of proposals, the Council will
be recommending Office Max (with 22 retail outlets throughout New Zealand) as the preferred supplier of stationery to the NZBA. Office Max is prepared to provide some significant discounts off the normal retail prices of “heavy usage” items such as A4 paper, telephone message pads, post-it notes, memo cubes, highlighters, pens, and envelopes. Discounts on these products range from 10% to 50%. Furthermore, Office Max will offer
● Cont. on p.3
NZ Bar Association Official Newsletter EDITOR Catriona MacLennan Telephone: 09 378 0964 Email: catmac@clear.net.nz LAYOUT / DESIGN Graham Wear Telephone: 09 415 9968 Email: wears@clear.net.nz John Slane Telephone: 09 524 5643 Email: j.slane@xtra.co.nz EDITORIAL COMMITTEE Miriam Dean QC Convener Telephone: 09 377 8959 Email: miriam@barrists.co.nz Marian Hinde Telephone: 09 366 7757 Fax: 09 303 4566 Jonathan Eaton Telephone: 03 372 3466 Email: j.eaton@xtra.co.nz Stephen Kós Telephone: 04 472 9026 Email: jsk@40johnston.co.nz Gené Tibbs Telephone: 03 544 4202 Email: nzbar@xtra.co.nz
Bar Association Newsletter. December 2005. Page 2
Continued from page 2
BULK BUYING – WATCH THIS SPACE a 30% discount to all members on all other general stationery (excludes postage items and everyday low priced items). Office Max will also include several digital recorders at discounted rates as part of its special pricing plan for NZBA members. Again, like Vodafone, Office Max is prepared to review the discounts depending on the level of purchases. Office Max offers guaranteed free next day delivery for orders over $40 plus GST from three distribution centres located in Auckland, Wellington and Christchurch. All members who decide to use Office Max will be provided with a copy of its catalogue and details as to how orders can be placed very quickly by phone, email or fax.
Other Products/Services The Council is currently investigating various buying arrangements and proposals with Lexis Nexis, Brookers and CCH. Details will be provided in the New Year. Investigation is also under way in relation to insurance, including a review of the Association’s professional indemnity insurance cover. The Council is aware that accountants generally enjoy a 12.5% discount off normal insurance premiums as a result of a special plan available to them. Canon has offered the Bar Association some excellent discounts on office equipment. Canon’s proposal is centred around the offering of multi functional devices which offer print, scan, copy fax and send capability. For example, the standard Canon mfd (RRP $2,795) will be available to members for a cost of $1,975 (a saving of $820). Canon is also prepared to explore a
range of discounts in relation to other products including cameras, interactive whiteboards, high speed scanners etc.
to members and, as well, some key suppliers. (Members will need, of course, to agree to this to avoid privacy issues.)
The Council is confident that the arrangements currently being negotiated will offer members better costs and service. A number of these arrangements will also provide members with a useful contact person for all inquiries etc.
The Council considers that these are exciting developments and hope that members will welcome them as tangible ways in which members can benefit from membership of the Association.
Once the Association provides members in the New Year with details of the various plans on offer, then members will need to complete a short – but simple – form indicating whether they wish to consider joining any one or more plan. These forms will then be sent to the supplier who will make direct contact with the member to arrange supply.
Next Newsletter publication date: Mid-March 2006
Some products – eg legal publications, office equipment etc – will simply be available to members at a particular discount level. All relevant details will be provided. Members will, however, need to satisfy the particular supplier that they are a member of the Association. This may mean that the Association will, in due course, allocate membership numbers to each member. Also, possibly in conjunction with a third party, the Council is currently considering preparing a directory of all members which can be provided
COUNCIL MEETINGS Proposed dates and locations for next yearʼs Council meetings are as follows: 9 February - Wellington 6 April - Tauranga 15 June - Nelson 18-20 August - Conference 12 October - Auckland 30 November - Palmerston North
New Zealand Bar Association Conference August 18-20, 2006
It is planned that the annual Bar Association conference will take place in the weekend of August 18-20 2006. The Council is currently considering the merits of changing the venue from Queenstown. There remain diverse views as to the preferred venue. Members have been asked, along with their re-subscription, to advise their preference as to the possible alternative venues which are currently Queenstown, Napier and Gold Coast (a suggestion which came from Christchurch members at the recent function held with them). It is hoped that members will have completed the questionnaire in order that the Council can make a decision that suits at least the majority of members.
Bar Association Newsletter. December 2005. Page 3
Profession’s regulatory bill carried over The Lawyers and Conveyancers Bill which is intended to replace the Law Practitioners’ Act is now not expected to come back to Parliament until next year, and is unlikely to take effect before 2008. The bill stalled during its committee stages in the House in March, with then-AttorneyGeneral Michael Cullen accusing the National and Act parties of obstructive behaviour. Dr Cullen said National’s justice spokesperson, Richard Worth, had promised a “marathon”
debate on the bill, and over 300 Opposition amendments had been moved. Dr Worth rejected Dr Cullen’s criticism, saying National supported the bill’s substance and it was the Government which had delayed the legislation. Dr Cullen said Parliament had run out of time to debate the bill prior to the election, and it was shelved in the middle of the committee stages debate. However, the bill was carried over to the new Parliament, as part of a reinstatement motion on November 8. This means it will
continue its passage through the House and be passed into law when Parliament again has time to debate it. That is not expected to be this year, as there is now limited sitting time before Christmas and that will largely be taken up with maiden speeches, the Address-in-Reply debate and urgent government legislation relating to student loans. The legislation was always expected to have a long lead-in time once it was passed, meaning a start date of some time in 2008 is now likely.
Admission Ceremony
History and value of inner bar outlined T
he Chief High Court Judge, Justice Tony Randerson, and Justice David Baragwanath both offered some thoughts on the role of the silks when they spoke at the Auckland ceremony at which Tómas Kennedy-Grant and David Jones were admitted to the inner bar.
Justice Randerson: I wish to say a little about the history of Queen’s Counsel and the future of the rank. According to Holdsworth’s History of English Law (1938), the first Queen’s Counsel to be appointed was Sir Francis Bacon in 1597. However, as Sir Robert Megarry pointed out in an address in 1999, some doubt exists as to the true appointment date. It seems that the appointment of Sir Francis Bacon was made orally and carried no salary. His position may have been merely that of being one of a group of counsel regularly instructed to act on behalf of the Crown. On the other hand, Sir Robert said, there could be no doubt that by 1604 Sir Francis Bacon was officially appointed by letters patent issued in that year by James I. The creation of the rank was emphasised
by a salary of forty pounds per year which continued to be paid to all silks until it disappeared with the surge of new appointments in the 1830s. Queen’s Counsel today, of course, do not receive a salary but most seem to command a good income nevertheless.
Sir Francis Bacon’s history was unfortunate because it is recorded that about three years after he was appointed Lord Chancellor in 1618, he fell from grace having confessed to 23 charges of accepting bribes in the Court of Chancery. This resulted in his being sentenced by the House of Lords to imprisonment in the Tower of London, a fine of 40,000 pounds and disqualification from all office. Although shortly afterwards granted Royal clemency, he died an insolvent five years later. It is sincerely to be hoped that the fate of Sir Francis Bacon does not fall upon you two gentleman whose call we are recognising today. The rank of Queen’s Counsel has continued down the years but in recent times in New Zealand has
been under significant threat. The current administration has signalled that it wishes to abolish the rank of silk but the relevant legislation has not yet been passed and the position remains uncertain. As I understand it, the opposition party has indicated that if it becomes the next Government, it will maintain the rank.
There has been much debate over the benefits or otherwise of continuing the tradition of Queen’s Counsel but, if I may be permitted to express a personal view, I see much benefit in the continuation of the rank. It is not a matter of personal privilege or licence to be called to the inner bar. Rather, it is a recognition of the qualities of which I have already spoken. It carries with it the responsibility to be a leader at the bar recognised as such by both the profession and the bench. The rank of Queen’s Counsel also serves the public interest because those who seek your services may be confident about your ability, knowledge, experience and integrity. Equally importantly, Queen’s ● Cont. on p.5
Bar Association Newsletter. December 2005. Page 4
NZ Bar Association 2005–2006 Council — Contact details President James Farmer QC
Ph: 09 358 7090 Fx: 09 358 7091
P O Box 1800
Auckland
Vice-President Mary Scholtens QC mts@mtscholtens.com
Miriam Dean QC miriam@barrists.co.nz
Ph: 09 377 8959 Fx: 09 377 8960 P O Box 4111 Auckland
Ph: 04 471 0646 Fx: 04 472 0646 P O Box 5454 Wellington
Jonathan Eaton j.eaton@xtra.co.nz
Ph: 03 372 3466 Fx: 03 365 2592 P O Box 13-868 Christchurch
Treasurer Christopher Gudsell ctgudsell@xtra.co.nz
Ph: 07 839 3290 Fx: 07 834 0587 P O Box 19085 Hamilton
Stuart Grieve QC stuart@grieve.co.nz
Ph: 09 358 1716 Fx: 09 358 1718 P O Box 4555 Auckland
Secretary Gené Tibbs nzbar@xtra.co.nz
Ph: 03 544 4202 Fx: 03 544 4206 P O Box 3595 Richmond Nelson
Elizabeth Hall
Ph: 04 939 9039
jamesfarmer@queenscounsel.co.nz
elizabeth.hall@paradise.net.nz Fx: 04 939 9269
P O Box 2557 Wellington
Tony Hughes-Johnson QC achj@xtra.co.nz
Ph: 03 365 2158 Fx: 03 365 7273 P O Box 286 Christchurch
Stephen Mills
Ph: 09 307 9820 Fx: 09 307 1572 P O Box 4338 Auckland
stephen.mills@shortlandchambers.co.nz
Trevor Shiels trevor.shiels@barristerschambers.co.nz
Ph: 03 477 4030 Fx: 03 477 7320 P O Box 1219 Dunedin
Terry Sissons terry.sissons@xtra.co.nz
Ph: 04 471 1380 Fx: 04 499 8795 P O Box 23063 Wellington Council Contact details continued on Page 14
Continued from page 4
History and value of inner bar outlined
Counsel bring a high level of objectivity and independence which is an invaluable asset in the practice of the law. Again, speaking for myself, the current proposal to allow silks to practise within a firm rather than at the independent bar would seriously diminish those qualities of objectivity. Justice Baragwanath: What is the purpose of silk? Our practice note refers only to “the personal qualities of applicants [and] the number of Queen’s Counsel in active practice and the strength of the independent bar in the applicant’s district.” But for those who have been in the law for many years, silk is not something abstract, but synonymous with the qualities of the leaders of the bar in our time. Those of my generation think of the flair and courage of L P Leary, the erudition and professional skills of Robin Cooke, the integrity and human warmth of Charles Hutchinson, the intelligence and firepower of Richard Craddock… Those of the next will have their own models in the ranks of our current silks. They are the unchallenged leaders of the profession. They set its
standards of etiquette, essential for the orderly handling of major disputes that is crucial to public confidence in the rule of law, and of conduct, showing by their example how the advocate’s role is to be discharged. The pressures of heavy cases can be intense. It can be burdensome to advise that an establishment figure or institution must be challenged in court; disagreeable to insist, on pain of withdrawal from the case, that an incriminating document must be
Silks practising in law firms rather than at indpendent bar would ‘seriously diminish’ objectivity qualities discovered by the favourite client of a major source of instructions; tempting in an unpopular cause to disapply the cab rank rule which guarantees representation by the ablest counsel whose commitments permit acceptance of instructions in his or her sphere of practice.
On occasion the profession has failed its challenges. As the presence today of a senior silk reminds us, the need to import Platts-Mills QC to share Frank Haigh’s burden in the watersiders’ case at the time of the wharf strike, because other leaders of the New Zealand profession did not make themselves available, has cast a long shadow. But since that time the need for a truly independent bar, that takes the cab rank rule seriously, has been both recognised and acted upon. Moral courage and steely determination to maintain proper standards are now seen as essential to an appointment to silk. In the words of a former Chief Justice whose son is sitting at the inner bar, the appointee must be learned, upright and brave. It is not a personal reward but appointment to an office that carries expectations and responsibilities. It is no less than the holding out by the Crown and the entire legal community, represented respectively by the AttorneyGeneral and by the Chief Justice, that the appointee is an exemplar of the highest personal and professional standards. ■
Bar Association Newsletter. December 2005. Page 5
New Attorney-General defines his role
“Bridge between independent judiciary, govt.”
N
ew Attorney-General David Parker has had a speedy rise up the political ladder, being elected to Cabinet after only one term and taking the portfolios of Energy, Transport and Climate Change Issues in addition to his role as Attorney-General.
Mr Parker says that he, like New Zealand governments for more than a century, values judicial independence. He does not regard judicial independence as being under threat, but says if the Chief Justice has concerns, it is the role of the AttorneyGeneral to deal with them.
Mr Parker did his law degree at Otago University, graduating with a B Com and an LLB, and worked at Anderson Lloyd Caudwell in Dunedin, initially getting a broad grounding in law by doing conveyancing and small business work. He then moved into litigation work, before heading to London and working both in a law firm and for Lloyds. On his return to New Zealand, Mr Parker practised in the Queenstown office of his old firm, before returning to the Dunedin office and becoming a civil litigation partner.
He supports the proposed replacement of the rank of Queen’s Counsel with that of Senior Counsel and says the proposal to allow lawyers in firms also to hold the title is overdue. Mr Parker says the justification for restricting the rank to those at the bar is “not compelling.” He believes the Government should pass the Lawyers and Conveyancers Bill during this parliamentary term.
Mr Parker then moved out of law and into business, founding and serving as a director of Fund Managers Ltd, which started out with $7.5 million and now manages $800 million. He was involved in more than a dozen private business ventures, ranging from forestry partnerships to agri-biotechnology and from renovation of Dunedin’s St James theatre to operating a cafe. He played a central role in managing BLIS Technologies Ltd from start-up to the main board of the New Zealand Stock Exchange. Mr Parker describes his business career as successful, but says it also taught him lessons of the “school of hard knocks” kind.
H
e became active in the Labour Party in the 1990s, describing himself as “incensed” by the National Government’s requirement for local authorities to sell community-owned electricity assets. Mr Parker won the Otago seat in 2002 and was deputy chair of the Local Government and
● David Parker
Environment Select Committee in the last Parliament. He was in charge of the “Corngate” inquiry and was also a member of the Finance and Expenditure, Regulations Review and Constitutional committees between 2002 and 2005. Mr Parker describes his rapid elevation to Cabinet as a matter of being in the “right place at the right time,” but says he believes the way he presided over the Corngate inquiry did him no harm. He says the Attorney-General is “the bridge between an independent judiciary and the Government, representing the interface required by the fact that the Government funds the judiciary”. The AttorneyGeneral by convention also has various roles which are conducted in an apolitical manner, including appointing judges and having responsibility for litigation conducted by and against the Crown. He acknowledges that there were tensions during the term of the last Parliament between the judiciary and the executive, resulting in a series of media headlines. “Some of those tensions arose out of the political turmoil the country was in concerning the foreshore and seabed.”
Mr Parker strongly believes that the quality of justice overall cannot be separated from its accessibility, which in large part is an issue of costs. In his time in practice, he saw the District Court become a more costly venue as procedural complexity increased. He is accordingly of the view that
Proposal for lawyers in firms to become QCs ‘is overdue’ District Court civil procedures require significant reform. Mr Parker says costs are also related to the ability of judges strictly to control proceedings in courtrooms. He believes that the recent trend towards relaxed rules of evidence means lawyers and perhaps some judges are less confident about rules of evidence than they were 20 years ago. “I wonder whether that is something we need to look at.” He says detailed knowledge of the rules of evidence by the judiciary would give judges greater confidence to control their courtrooms strictly. That, in turn, would reduce litigation costs. ■
Bar Association Newsletter. December 2005. Page 6
Shadow Attorney-General airs his concerns
Respect for judiciary, law reform inaction
N
ational’s shadow AttorneyGeneral and former Wellington barrister Chris Finlayson says he has become increasingly worried about lack of respect for the judiciary and lack of action on law reform issues. A member of the National Party since joining as a schoolboy in 1974, Mr Finlayson entered Parliament following the September election and has been given the responsibilities of shadow Attorney-General, and associate spokesperson on Treaty of Waitangi issues and Maori affairs, and arts, culture and heritage. He says he went into politics to support National leader Don Brash. “I want to help Don address the big issues, in particular the stark truth that New Zealand is slipping behind Australia. We are losing our best and brightest to Australia. That has very serious consequences for the long-term health of New Zealand.”
Mr Finlayson describes himself as a “lawyers’ lawyer.” He believes institutional change is required to make Parliament operate more effectively. He is a fan of the “main committee” model which operates in Australia, and involves 30 or 40 MPs forming a grand select committee to progress non-partisan but nonetheless, difficult legislation. He says such a committee would be a good means of dealing with law reform issues requiring attention at present, including limitation, copyright and patent law reform. Mr Finlayson is strongly critical of the Law Commission, saying he is beginning to have serious doubts about whether it serves any purpose at all. A possible option, he thinks, is to reinstate law reform committees which worked well in the past. Their solutions were, he says, “commonsense and practical”. Mr Finlayson says what is required is people who will “be champions for law reform”. The “Attorney-General should be one
of those champions”. But Mr Finlayson says former AttorneyGeneral Michael Cullen during his tenure showed that he had no understanding of the office and its responsibilities. “Dr Cullen failed to support the judiciary. The Supreme Court, established with much fanfare by Labour, remains housed in the basement of the High Court in Wellington and there is no prospect of a permanent home any time soon.”
Mr Finlayson is also critical of Dr Cullen for failing to progress the Lawyers and Conveyancers Bill, which stalled in Parliament in March. Mr Finlayson supports the passage of the Lawyers and Conveyancers Bill, stating that the sooner it is passed into law, the better.
M
r Finlayson advocates a review of legislative method. A lot of legislation produced by Parliament is, in his opinion of inferior quality, and contains vague formulaic statements and references to the Treaty of Waitangi. He says a Legislation Act bringing together the Acts Interpretation Act and other pieces of legislation should be considered. He says the proposal to replace the rank of Queen’s Counsel with that of Senior Counsel is the trend internationally and the change does not bother him. He does, however, think it unwise for SCs to be in law firms. If SCs are appointed in law firms, it will become too political. There is a case to be made for decisions on the appointment of SCs/QCs to be made by the judges in conjunction with the New Zealand Law Society and the New Zealand Bar Association. Mr Finlayson believes there is no need for a Judicial Commission, a concept mooted earlier but subsequently discarded. He believes that the judiciary needs to be adequately resourced, beginning at the top of the tree.
He says Supreme Court judges should be given their own specialist building. “I just think it’s unacceptable they’re down in that hellhole.” Mr Finlayson does not think the building in Stout Street is appropriate as the site for the Supreme Court. It was a trial court building. The old Number 1 Courtroom is not really appropriate for an appellant courtroom. Mr Finlayson’s preference would be to have a specialist building built either on that site or on a vacant section in Molesworth Street. He is concerned about the delays in addressing this issue. He says there are huge resourcing issues in relation to the Court of Appeal, describing delays in its work as “frankly worrying.” He says the court should be able to issue judgments within three months. Two steps which could improve the position would be addressing human resources issues and not allowing appeals from District Court jury decisions to the Court of Appeal. Mr Finlayson says there are also problems in relation to the High Court, with the Auckland High Court being “jam packed.” He says judges are not given the respect they deserve, and he is concerned when he hears politicians criticising “activist” judges. If Parliamentarians did their jobs properly and passed legislation of high quality and without vague treaty references, judges would not be required to deal with such matters. Mr Finlayson says that, whatever his faults, Geoffrey Palmer was a good Attorney-General who attended to the concerns of the judiciary, upheld the rule of law and was very enthusiastic about ongoing law reform. He was a law minister before he was anything else. That is how Mr Finlayson would like to be remembered. ■
Bar Association Newsletter. December 2005. Page 7
My existence is bound by a small blue volume handed down like the tablets on the day of my Call to the Bar by a Master of my Inn in a haze of port and general excitement. — Rumpole and the Alternative Society.
Australia working towards achieving a national legal profession
T
he Australian legal profession is in the midst of wideranging reforms which are the culmination of efforts begun over a decade ago to achieve a national legal profession. In May 2004 the Standing Committee of AttorneysGeneral released the National Legal Profession Model Laws which have now been enacted as the Legal Profession Acts (2004) in Queensland, New South Wales and Victoria. The other states and territories will hopefully follow, with the intention that a legal practitioner will only require one admission and one practising certificate to be entitled to practise as a lawyer anywhere within Australia.
Each state has its own legal profession, but the Commonwealth Parliament is unable to legislate for a national profession because the states did not devolve sufficient power upon the Commonwealth at Federation in 1901. To this day, they also retain many other exclusive legislative powers with resultant legislative disharmony. Two methods have been used to try to achieve uniform national laws. The first requires the states to cede powers to the Commonwealth. That method has recently been used to strengthen the Commonwealth’s powers in respect of terrorism offences, but in the absence of a national crisis the states have been reluctant to surrender jurisdiction. The second method requires the states and territories to agree amongst themselves upon a model law which each of them may then enact, usually with some local modifications. Historically, such schemes have met with mixed success. A national corporations law has been achieved, but attempts to
agree upon a national evidence law fell short in the mid-1990s when the majority of the states failed to enact the model.
The distinction within the profession between barristers and solicitors has consequently differed from state to state. The first lawyers appeared in Sydney in the early nineteenth century. They practised both as barristers and solicitors until 1834 when the Supreme Court ruled that the profession would thenceforth be divided, with separate rolls for barristers and solicitors. Only barristers called in England were permitted to appear until the 1850s. Since Victoria and Queensland were originally part of New South Wales, they followed the parent colony’s practices when they became self-governing, and there have been strong independent bars in Sydney, Melbourne and Brisbane for over 150 years. In New South Wales in the early 1900s, the solicitors were granted the right to appear in the higher courts, but almost none did. Tasmania, South Australia and Western Australia have had a different history. Their populations were much smaller and more dispersed, so lawyers were always admitted as “barristers and solicitors” and the prohibition of the English bar preventing barristers practising in partnership has never applied. There were sometimes a few who chose to practise solely as barristers, but until the late 1970s almost all lawyers in Adelaide and Perth, including Queen’s Counsel, practised in firms. There was a concerted attempt at fusion in Victoria in the 1890s, but the barristers quickly formed a
voluntary association, and agreed not to appear with barristers and solicitors whom they called amalgams. The fusion did not fail entirely, however, and several amalgams developed large practices as counsel, the best known being Frank Galbally who achieved a record number of murder acquittals, but never took silk because the bar controlled the appointments.
A
s the result of this diversity of legislation, the continent was divided by legal “dingo fences” designed to prevent interstate practitioners from appearing in the courts of another state without first obtaining local admission and a local practising certificate. In the eastern states, the admission rules and the bar rules prevented partners and employees in firms practising as barristers. In New South Wales and Queensland, barristers signed a separate roll, joined the local bar association, and bound themselves to the local bar rules. In Victoria, a barrister was admitted as a barrister and solicitor, but then signed the bar roll and agreed to be bound by the bar rules. In each state, the bar rules mirrored the English rules in the blue book. In Adelaide and Perth in the late 1970s, most of the senior advocates left the firms, set up separate chambers, and formed independent bar associations. The reasons were obvious. The demands of the modern firm and the introduction of time costing meant that the partner who went to court for a daily brief fee was an increasingly uneconomic proposition and the barrister/partner was attracted by the independence of a professional life in chambers. The process was accelerated by the ● Cont. on p.9
Bar Association Newsletter. December 2005. Page 8
Cont. from page 8
Australia working towards national profession
Chief Justices of both states who made it known that only barristers practising at the independent bars would be considered as suitable applicants for appointment as Queens Counsel. In the last 20 years, the dingo fences have been gradually torn down at the prompting of the expanding national law firms. The state courts have relaxed their admission rules, and a “travelling practising certificate” has been introduced so that one certificate now suffices. The Model Law is now intended to draw all of these changes into one national regime.
I
n broad outline, each state act establishes common preconditions for admission to practice, common procedures for the issuing and recognition of practising certificates, a separate disciplinary structure outside the control of the bar associations and the law societies, mandatory procedures for disclosing fees and recovering costs, and the statutory entrenchment of the distinction between a barrister and a solicitor. The most fundamental change is the legislative separation of admission to practice from the right to practise. All lawyers will henceforth be admitted either as “legal practitioners” (Queensland’), or as “lawyers” (New South Wales and Victoria), but their right to practise will be defined by the practising certificate they obtain. All lawyers must now follow specialised professional training leading to an unqualified practising certificate as a barrister or a solicitor and barrister. In Queensland and New South Wales, the bar associations now issue practising certificates to barristers and the law societies issue certificates to “solicitors and barristers”. In Victoria, the independent Legal Practice Board issues all practising certificates. Any solicitor and barrister may
appear in court as a barrister (bound by the advocacy rules which mirror the bar rules), so it is actually permissible to practise as a barrister from within a firm, but not while holding a barristers’ practising certificate. It would be possible for entire chambers of barristers to reconstitute themselves as firms, but the members would have to surrender their barristers’ practising certificates, take out solicitor and barrister practising certificates, and pay the much higher insurance premiums applicable to solicitors’ practising certificates. This scheme has operated in New South Wales and Victoria for over a decade without difficulty. One or two large firms have employed Queen’s Counsel, and in Victoria a well-known Queen’s Counsel left the bar, joined the Law Society and opened an office, but he is now
back at the bar. In practice, in-firm barristers are rare because it is difficult to make them profitable, and the litigating solicitors in the firms are used to having a wide choice of barristers to brief. The essential independence of a barrister—no partnership and no employment—has now been legislatively entrenched. Section 54 of the New South Wales Act states: 54 Statutory condition regarding practice as a barrister It is a statutory condition of a local practising certificate for a barrister (but not a solicitor and barrister) that the barrister must not: (a) engage in legal practice otherwise than as a sole practitioner, or (b) engage in legal practice in partnership with any person, or ● Cont. on p.11
Miscarriages of Justice: Causes and Remedies 24 February 2006 Engineering Lecture Theatre, University of Auckland The Legal Research Foundation will be holding a one day conference in Auckland on Miscarriages of Justice. This topic is the subject of a Ministry of Justice discussion paper in 2003, and a research paper by Sir Thomas Thorp, which is soon to be published by the Foundation. In August 2005 the Justice and Electoral Committee of Parliament recommended that the Royal Prerogative of Mercy system be reformed and an independent body established to examine allegations of miscarriage of justice. Speakers at this conference include Sir Thomas Thorp; Dr Warren Young, Acting President, Law Commission; Professor David Brown, University of New South Wales; June Jackson, CEO of the Manukau Urban Maori Authority; Val Sim, Crown Law Office; Dr Keith Bedford, Forensic Programme Manager, Institute of Environmental Science and Research Limited; Neville Trendle, former Chief Legal Adviser, New Zealand Police; Scott Optican, Senior Lecturer, Faculty of Law, Auckland University; Dr Greg Newbold, Associate Professor of Sociology at Canterbury University, Authority; and Stuart Grieve QC. To obtain a registration form for the conference please contact the Foundationʼs Secretary, Barbara Relph, at lrf_secretary@auckland.ac.nz, or by phoning 09 309 9540.
Bar Association Newsletter. December 2005. Page 9
New Zealand judges need to be more proactive in properly applying rules relating to the admissibility of expert opinion evidence, says Queen’s Counsel Jim Farmer Q.C. “It is not a matter of whether the rules in the High Court Rules are adequate or whether they need amendment. It is a matter of New Zealand judges applying what is in essence the common law rules about the proper basis on which experts can give admissible opinion evidence. Judges in Australia enforce those admissibility rules much more vigorously than do our judges.”
Direction against experts being advocates not being enforced
D
r Farmer says the major problem in relation to expert evidence is that the direction against experts being advocates is not being enforced.
“In practice, in New Zealand, experts very seldom observe those strictures and as a result they end up roaming all over the case and inevitably become advocates.”
“And (it) will not be enforced so long as experts are given the free roving position that they have at the moment of either commenting on the case as a whole as they see it or commenting on evidence that is disputed. What they should be doing is expressing opinions on clearly and narrowly articulated factual assumptions that they are given as the basis of their instructions.”
He says the best solution would be for judges to take a hard line on allowing costs for expert witnesses after the hearing.
Dr Farmer points to the headnote in Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555 in which it is said : “The expert evidence of an economist called by the appellants at the trial had been rejected by the trial judge. In this case the expert’s evidence in essence was an expression of his opinions about the factual correctness of the assertions in the pleadings. None of this evidence was admissible. The expert had not identified the facts assumed in his opinion, but rather asserted that he had read the whole of the transcript and the exhibits. This was an incorrect practice. An economist may legitimately give an opinion which may be upon an issue which the court has to reach a finding. However, the assumptions made by the witness upon which the opinion is based must be identified and articulated.” Dr Farmer says that statement applies to all experts, not just to economists.
“Having heard the case, the judge should be able to decide whether the use of a particular expert was justified or not. If he or she comes to the view that a witness was not justified or was of marginal relevance only, or was really doing little more than making submissions, the judge should not only refuse to allow the costs of that witness to the successful party calling him or her, but should consider whether the costs of the losing party in having to cross-examine should be met.”
D
r Farmer says it is also time for lawyers to take greater responsibility for submissions, rather than in large part delegating that task to experts. “Judges can be encouraged also to take judicial notice of obvious everyday facts that exist, for instance, in the commercial world. I doubt that you always need an accounting expert to read out a relevant accounting standard. The same is true of competition law cases, where often the economist’s evidence on basic issues such as market power, monopoly and definition is now to be found in judgments anyway.”
Dr Farmer says changes to rules relating to expert witnesses in England and Queensland do not really address the problem of the over-use of expert witnesses. Rather, they may actually increase the numbers of interlocutory hearings, which, together with case management, are adding hugely to litigation costs. “In addition, it is probably difficult for a judge to rule in advance on whether the number of witnesses should be limited, with the resulting danger of injustice.” Dr Farmer, counsel for Air New Zealand Qantas in Air New Zealand Ltd/ Qantas Airways Ltd v Commerce Commission, says the requirement in the High Court Rules that experts be independent and impartial did not stop Professor Tim Hazeldine, who admitted to conducting a crusade against the airlines, from giving evidence for Gullivers Travel, one of the objectors. The appellants in that case opposed the full reimbursement of the fees and expenses of expert witnesses. Justice Rodney Hansen in his judgment as to costs noted that the issue was now covered by Rule 48H of the Rules. One of the objectors, Infratil group, sought reimbursement of witnesses’ fees of $71,258 and $61,026 respectively paid to Professor Jerry Hausmann and Keiran Murray of Wellington. They provided a joint affidavit and attended a conference of experts in New York. ● Cont. on p.11
Bar Association Newsletter. December 2005. Page 10
Experts presenting as advocates:
The appellants argued that, because the evidence of the two experts was confined in scope and ultimately of no assistance, their costs should not be allowed. Justice Hansen rejected that submission, stating that although the evidence was effectively relegated to obscurity, it had been reasonable for Infratil to engage the experts. The judge also allowed the cost of Professor Hazeldine, not accepting the argument that his strong public statements in opposition to the
proposed alliance demonstrated that he lacked the qualities required of an expert witness. Justice Hansen said that the evidence Professor Hazeldine had given to the court was consistent with what he had said to the Commerce Commission. Although put forcefully “and at times even immoderately,” he did not lack the essential qualities of an expert.
The commission sought to recover $16,246 for the cost of Professor David Gillen’s attendance
cont. from P.10
at the experts’ conference in New York and $33,099 for the costs of travel and accommodation for commission staff who travelled to New York for the conference. Professor Gillen was a Canadian economist engaged by the commission to advise and assist during the determination process, but was not a witness before the commission or on appeal. Justice Hansen disallowed those claims, stating that it might have been desirable for the commission to ● Cont. on p.12
Cont. from page 9
Australia working towards national profession
(c) engage in legal practice as the employee of any person, or (d) hold office as a legal practitioner director of an incorporated legal practice. The result is that barristers are now statutorily acknowledged as the specialist advocates and advisers of the profession, and are required to undertake a highly specialised and lengthy professional training. In the eastern states, an intending barrister must pass the bar exams, and then undertake a three-month reading course followed by 12 months practice under the supervision of a tutor. During that period, the pupil has a restricted right of practice, but becomes entitled to an unrestricted barristers’ practising certificate at the end of the period subject to certification by the tutor. Reading courses and formal pupillage are gradually being established in the other states. It is not compulsory to join an independent bar association in any state and some barristers choose not to do so. However, the rules of the independent bars are now statutory rules, so they bind all lawyers who hold a barristers’ practising certificate, whether or not they are members of a bar association. The rules are subject to review by the Attorneys-General of each state, and may be rejected if deemed
inappropriate. The Victorian Act contains an express proscription on anti-competitive rules, but the New South Wales rules were redrafted a decade ago after some encouragement by the then Trade Practices Commission, and have been adopted in South Australia with local adjustments. The rules govern the acceptance of briefs, conduct in and out of court and towards one’s opponent, and require a barrister to confine his/her professional work to “barristers’ work”. A barrister may only do work which is connected with appearing as an advocate or the giving of legal advice. Crucially, a barrister may not conduct contentious correspondence and may not employ any legal practitioner. The latter rule dovetails with the proscription in the legislation on a barrister being an employee. It is thus impossible for the holder of a barristers’ practising certificate to employ other barristers. However, the rules do not prevent the traditional “devilling” of work where a barrister accepts a fee from another barrister to prepare a draft advice or to undertake legal research. A daily reminder of the new legislation is the mandatory requirement to disclose fees, to give written estimates of costs and to
enter into costs agreements. Failure to comply with the disclosure provisions makes it difficult and expensive to recover fees. For about 10 years it has been possible for a barrister in New South Wales to accept instructions directly from a lay client. The Model Law now introduces direct access to the other states. The disclosure requirements for a direct access brief are much more onerous than those which apply to acceptance of instructions from a solicitor, and the barrister must also disclose the limited nature of barristers’ work, that it may become necessary for the client to engage a solicitor at some stage (even during a hearing), and must inform the client of the barrister’s capacity to perform the required work compared to the capacity of the barrister together with an instructing solicitor to do the work. The result has been that direct access briefs are not often seen except in small matters and advice work. The Legal Profession Act, 2004 (NSW) contains 133,000 words. We have come a long way from the small blue book. —Tim Sydney).
Hancock
(barrister, ■
Bar Association Newsletter. December 2005. Page 11
Cont. from page 11
Expert witnesses presenting as advocates
have had Professor Gillen and staff present at the conference, but it was not necessary for the conduct of the hearing.
Alan Galbraith Q.C. agrees with Dr Farmer’s views. “In my experience only lip service is paid to the requirements of independence and objectivity by many experts despite the formal statement in their evidence that they accept and will observe the rules. Some experts have ongoing consultancy relationships and in my view that can often colour their approach.” Mr Galbraith says practical solutions to the problem are difficult to achieve. However, he states that experts should take responsibility for the quality of their own evidence. Solicitors, when engaging experts, should ensure that the experts truly understand their responsibilities and, further, that they comply with them. “It is the responsibility of the courts to police observance of the obligations. Unfortunately, since the introduction of written briefs, the courts have largely given up on their role of controlling admissibility either of factual or expert evidence. The result is that a great deal of inappropriate evidence in chief is inserted into written briefs which results in inappropriate evidence in reply, both factual and expert, and the cycle continues from case to case.” Mr Galbraith says the answer is not a blanket power for the court to appoint its own expert, as that risks decision-making by the expert. “However, there would be sense in the court having that power where parties agreed, and sense also in the court having a wider ability to sit with an expert in complex cases. Those changes would effect improvements, but the fundamental problem remains the lack of
acceptance of the obligation to only rely on and permit admissible evidence.”
Voluminous evidence from expert witnesses in recent years has been blamed for greatly increasing trial lengths and adding to litigation costs. As a result, the United States, Canada, Britain and New Zealand have reformed rules relating to expert evidence in a bid to curb perceived abuses. New South Wales introduced changes relating to experts in the Uniform Civil Procedure Rules 2005, but is now proposing further reforms following Sydney Morning Herald stories alleging that professional experts were being overused. The paper claimed thousands of experts were advertising in online directories, with some boasting expertise in up to 20 different areas and offering to charge on a “no win,
Wellington Silks’ Bar Dinner: Thursday, Feb. 9, 2006 (Details to follow) no fee” basis, a practice which has been banned in the United States. It said senior judges were concerned about the risk of bias and the impact of experts on the length and cost of cases. Some Australian judges have been strongly critical of expert evidence tendered in particular cases. In Universal Music Australia Pty Ltd v Sharman License Holdings Ltd, for example, Justice Wilcox of the Federal Court of Australia noted that parties had relied heavily on evidence from “so-called independent experts”. He said much of the evidence had been helpful but some had not “either because it related to a peripheral, even irrelevant, matter or because I was compelled to form an adverse view
about the objectivity or intellectual integrity of the witness. I mention, in this context, particularly Dr Roger Clarke, whose evidence on behalf of the Altnet parties was little more than a partisan polemic, and, to a lesser extent, Professor Ross.”
T
he New South Wales Law Reform Commission was asked to review the rules relating to experts and draw up proposals for change. It released a detailed report in June 2005, noting that one of the most significant international reforms relating to expert evidence had been the concept of the single joint expert witness. This originated in England’s Woolf reforms and was designed to limit expert evidence while assisting the court in reaching a just decision by promoting unbiased and representative expert opinion. Evaluations of the innovation had found it worked well. The commission accordingly recommended Australia should follow other jurisdictions by introducing the concept, one of seven key changes recommended in the paper. Other proposals included preventing parties in civil proceedings from adducing expert evidence without the court’s permission, and amending rules relating to court-appointed expert witnesses. The document suggested fee arrangements with expert witnesses should have to be disclosed, and experts should be informed of sanctions relating to inappropriate or unethical conduct. It proposed that a further review of rules relating to experts should take place in five years. In England, the new rules governing expert witnesses arose from Lord Woolf’s comprehensive, 1994 review of the civil justice system. He concluded the court system was too expensive, too adversarial and favoured wealthy litigants over those with fewer resources. In relation to experts, he ● Cont. on p.13
Bar Association Newsletter. December 2005. Page 12
T
he Bar Association welcomes new members to the Independent Bar and Association: Genevieve Denize—Tauranga John Douglas — Tauranga Simon Mitchell — Auckland Barbara Read — Christchurch Philip Skelton — Auckland Jane Taylor — Queenstown Jenni-Maree Trotman —Auckland ****** Following its meetings in Dunedin on October 13 and Christchurch on December 1 the Council held very successful get-togethers with members of the association. As with other meetings, there was lively debate on a number of the issues currently facing the bar. There was particular interest
People and events
the new silks to the inner bar and spoke about the new process for the appointment of silks in the United Kingdom and New South Wales. Interestingly, this process involves a number of formal steps and in the United Kingdom candidates must pay a large application fee (and another fee if successful).
about the Council’s current investigation of possible bulk buying (and other discount) arrangements with key suppliers.
Tómas gave an eloquent speech about his involvement in the law in Rhodesia (when the death penalty was in place), in the United Kingdom and England.
Bar Chat ...
****** Association members enjoyed a convivial evening on Friday, November 25 to congratulate the two new Auckland silks, Tómas Kennedy-Grant and David Jones. James Farmer QC welcomed
David spoke about his enjoyment of working in the criminal law, where, as he sees it “the rubber hits the road”. Both silks thanked the profession for the support it had provided them. ■
Cont. from page 12
Expert witnesses presenting as advocates
said there were major problems and significant reform was required.
The principle of access to justice was being undermined by the proliferation of experts, creating a damaging ethos of what was acceptable in the civil justice system, Lord Woolf stated. His report recommended that single experts should be used in substantially established areas of knowledge, opposing experts should co-operate, permission should be required to use experts, and training courses should be provided. Lord Woolf’s recommendations were largely adopted in the Civil Procedure Rules 1998 and the Code of Guidance on Expert Evidence 2001. The code encouraged courts to appoint a single joint expert, particularly in cases where the sums involved were not large and the issues were relatively simple. Implementation of the reforms has, in practice, been mixed. English courts do not ordinarily order a single joint expert report where there
is a major issue relating to liability or causation, although single joint experts are more likely to be ordered in personal injury cases. The courts’ reluctance to use single experts in respect of liability and causation issues has attracted criticism, with commentators arguing that there is a stronger argument for a single expert in cases where the issue is critical and the question for expert opinion difficult.
being too blunt an instrument to resolve genuine scientific disputes, possible conflict between professional body ethical rules and court rules governing experts, and the complexity of trade practices cases.
Following the Woolf reforms Queensland, the Federal Court, the Australian Family Court and the Australian Capital Territory have also recently reformed rules relating to expert witnesses.
The committee argued that the likelihood of partiality by experts should be assumed, and systems should be designed to counter it. It referred to the case of Commerce Commission v Carter Holt, in which the economists giving evidence were criticised on the grounds of partiality and irrelevance. The recommendations made by the committee were implemented by amendments to the High Court Rules.
In New Zealand, the Rules Committee issued discussion papers about expert witnesses in 2000 and 2001. These recommended changes, but said problems relating to expert witnesses in this country were not as acute as those overseas, and more moderate reforms would accordingly suffice. The second paper said potential problems included the adversarial method
These introduced a code of conduct for experts, and stated that experts must be provided with a copy and record in writing that they had read it. Other rules provided for the appointment of court experts, applications for leave to crossexamine the court expert, and the calling of one expert witness to give evidence on questions reported on by the court expert. ■
Bar Association Newsletter. December 2005. Page 13
NZ Bar Association 2005–2006 Council — Contact details Cont. from Page 5
Matthew Ward-Johnson
ward-johnson@tgachambers.co.nz
Ph: 07 579 0408 Fx: 07 579 0404 P O Box 13561 Tauranga
Adina Thorn
adina@queenscounsel.co.nz
Ph: 09 358 7090 Fx: 09 358 7091
Left: David Jones QC and Tómas Kennedy-Grant QC at their recent swearing-in
Bar Association Newsletter. December 2005. Page 14