New Zealand Bar Association The Official Bar Association Newsletter JUNE 2006
EDITORIAL
Widespread Should we be happy with how support for the courts are operating? new judge C riticism of our institutions is healthy, even the institution that upholds the rule of law in New Zealand, namely the courts. Judges are fallible which is why we have an elaborate (two level) appellate structure to correct judicial error when it occurs. That statement must, of course, acknowledge that our Supreme Court judges are institutionally infallible. That only underlines the importance of judgments of that court being subject to critical scrutiny, by academic lawyers in particular, so that error at that level can be exposed and, if need be, made the subject of legislative correction for the future. It is equally important that the bar itself should be receptive to constructive criticism and that if standards of advocacy, or more seriously of ethics, are seen to be declining then that is also the subject of public comment and discussion. One of the primary objectives of the Bar Association since its inception
In this issue . . . Editorial pp.1, 2, 3, 4 Judge supported p.1, 5 Conference p.3 Justice France p.5 New councillor p.5 Bulk buying p.6 Council minutes p.6 New Act p.7 McCully correspondence pp.9, 10 Getting started p.11 Bar chat p.12 Council dates p.13
has been that of the maintenance and improvement of standards and that must always remain so.
Public criticism must, however, be fair and balanced, particularly if coming from people in authority or whose views generally command respect. It was for that reason that, as president of the Bar Association, I thought it imperative to write to Mr McCully as to his criticisms of Terence Arnold (now Justice Arnold of the Court of Appeal) making it plain that there was no dispute with his right to express his disagreement with the merits of decisions made by Mr Arnold as Solicitor-General. However, suggestions that he had acted with a lack of integrity in coming to those decisions were another matter and should not have been made without something more to support them than that put forward on Mr McCully’s website. The letter sent to Mr McCully and his reply are printed in full on p.9 and p.10 of this newsletter and reference can be made also to that written by Chris Darlow, president of the New Zealand Law Society. Without wishing to commit the “crime” of which I accuse Mr McCully, and without therefore seeking to impugn the integrity of anyone, I do nevertheless now wish to voice my concerns about certain recent events and trends that, in my view, have the potential to cause damage to the way in which litigation is being conducted in New Zealand and to lower the esteem with which the general public hold our courts and the bar. ● Cont. on p.2
Those who packed the No. 1 Court at the High Court in Wellington on May 19 would have been joined by many around the country who take particular pleasure in the appointment of Justice Terence Arnold to the High Court and Court of Appeal. If the key attributes of
Justice Terence Arnold
a successful judge are a keen intellect, an open mind and a modest demeanour, then there is every prospect that Justice Arnold will become one of our leading judicial figures. The judge’s career can broadly be divided into three stages. The first stage involved teaching in leading North American universities, and at Victoria University of Wellington with a focus on criminal law. He then joined Chapman Tripp and developed a career as a leading commercial litigator, leaving the partnership for the bar in 1993, and taking ● Cont. on p.5
N.Z. Bar Association Newsletter. June 2006. Page 1
Continued from front page
Should we be happy with how the courts are operating? Not in any particular order, I would single out for mention (1) the system of allocation of fixtures in the High Court; (2) the appointment of judges to the High Court and above; (3) the appointment of Queen’s Counsel; (4) the effect of written briefs on the costs and length of trials; and (5) the lack of specialisation in the High Court. Because many, if not all, of these topics overlap, I will not deal with them separately but begin by discussing the fixtures situation and then endeavour to show how the others lead on from, or interrelate with, that topic. Allocation of Fixtures I have to confess that I only recently caught up with the fact that the system of allocating a fixture for the trial of a civil case in the High Court on the second call, that is, well before all interlocutory procedures had been completed and without any knowledge of whether there might be contentious matters arising during the interlocutory phase, was the creation of the Rules Committee, a body which has over the past decade become more and more frenzied in its desire to increase the amount of detailed regulation contained in the High Court Rules. So what are the consequences of appointing a fixture at this early stage of the process? The first is that the fixtures list becomes clogged up with cases most of which will never go to trial on the day appointed (leaving aside those that settle in the normal course), simply because the interlocutories are not completed within the timetable laid down at the point of allocating the fixture. The second consequence
Next Newsletter publication date: September 2006
is that the litigants are then faced with needing an adjournment of the fixture to conclude disputed interlocutories, but are usually told that the lists are full and that they will have to wait for anything up to 12 months for another fixture. This sometimes leads to a litigant having little choice but to abandon an interlocutory application (or opposition to one) just because the delay is too great. Or, the court may accommodate the situation by fitting in the hearing of outstanding interlocutory applications ahead of the fixture but at the cost of compromising proper and thorough preparation for the trial by counsel.
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erhaps recognising the validity of these criticisms, a system has just been introduced in the Wellington High Court of back up fixtures. While that attempt is to be welcomed, experience tells us that such fixtures will only work in a minority of cases. The remedy is more fundamental. Except in appropriate cases where expedition is clearly needed and where the parties are equally motivated to complete all interlocutory steps (including disputes) ahead of a fixture that is made on the first or second call, fixtures should not be made until the case is certified as being ready for trial. But then the system has to be such that a reasonably early trial can be guaranteed thereafter, even on medium to long causes. Another problem that arises with civil fixtures is that judges are spending an increasing amount of their time on lengthy criminal cases. This becomes an acute problem if a case has to be adjourned part-heard for any reason (often because there is little flexibility to deal with situations where time estimates for one reason or another have not been met) or if a particular judge has been allocated the case during the interlocutory phase and it is thought that he should stay with it for the trial.
Traditionally our High Court judges have sat on both criminal and civil cases, irrespective of where their experience at the bar had been. In my view, the time has come to establish High Court criminal and civil divisions. That is not to say that judges could not be moved from one division to the other on occasion where particular exceptional pressures warranted that course. ● 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
N.Z. Bar Association Newsletter. June 2006. Page 2
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Should we be happy with how the courts are operating?
I would myself go further and say that the case for some degree of, at least de facto specialisation in commercial cases, in resource management cases, in relationship cases and perhaps in other areas is unanswerable. The Independent recently reported moves to the establishment of a socalled “private court” system (wrongly identifying me with it), which is largely the result of the failure of the High Court to provide a guarantee of judges to hear commercial cases who had established reputations as commercial counsel when at the bar. That is bad for the standing of the High Court and, ultimately it is bad for the development of commercial law and the principles underlying it. The decline in the popularity of the Commercial List is as much as anything caused by commercial lawyers giving up on ever being able to be sure of obtaining commercial judges to hear the case. Timetabling can just as readily be obtained through the associate judges and the ability to deal with disputed interlocutories is compromised (despite the best efforts
of the Commercial List judges) by the fact that they are taken off to do lengthy criminal cases so frequently. Written Briefs That leads me on to written briefs. When Justice Tompkins met with the senior bar in Auckland many years ago and told us that the written brief procedure would be introduced on a trial basis (as I recall), he had virtually no support from those present. The system was nevertheless introduced and embodied in the Rules of Court. We have now had considerable experience of it and the senior bar continues to say that it is not a good system, that it adds considerably to costs of preparation for trial, that it leads to “lawyer-crafted” evidence that is characterised by submission as much as facts, that it is unfair on the witnesses themselves, and that it lengthens trials and makes it more difficult to confine evidence within the rules of evidence, especially the fundamental requirement that evidence be relevant to the issues arising on the pleadings. The efforts to codify
the rules of evidence in a single statute (currently represented by the Evidence Bill) are a complete waste of time, while the written briefs system remains. ● Cont. on p.4
Juniors can hit jackpot Younger members are especially encouraged to attend this year’s conference. As one junior member reported: “Just by way of feedback, the winter conference paid dividends for me, as a junior member of the profession, in that I was given some excellent pieces of advice in relation to one or two cases that I happened to be working on at the time. I have had successful outcomes in both of those cases, which probably wouldn’t have happened but for the opportunity to discuss the cases with more senior and experienced counsel.”
New Zealand Bar Association Annual Conference Queenstown, September 1-3, 2006 This year’s Bar Conference will focus on the critically important topic of fact finding and evidence. The topic is particularly timely, as the new Evidence Bill is now wending its way through the Parliamentary processes. One of the three sessions at the Conference will be devoted to the Evidence Bill, which may by then be law. The conference will be addressed by prominent judges and lawyers from New Zealand and Australia. It will be held at the Crowne Plaza in Queenstown. It promises to be both a social and intellectual highlight of the year for the Bar Association. The Council urges you to mark your diaries now. N.Z. Bar Association Newsletter. June 2006. Page 3
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Should we be happy with how the courts are operating? Does anyone take any notice of the senior bar on this topic? Justice Anderson at a bar conference a few years ago expressed the view that evidence should be led viva voce in the traditional way but thought that the exchange of summaries of evidence to be given ahead of trial was a useful procedure and could possibly aid settlement (one of the justifications advanced for having written briefs). Other judges have on occasion expressed reservations about the system. But nothing happens. And I have little doubt that the process of factfinding is not aided but is likely to be distorted as a result. There is also of course the question of additional costs not only from the time spent by lawyers in getting briefs “word perfect” but from the additional time at trial occasioned by the introduction of comment (usually leading to counter comment) and irrelevancy. I venture to suggest that in most instances it would take less time to lead a witness’s evidence viva voce, allowing for arguments about admissibility along the way, than it does for the witness to read the lengthy briefs that the lawyers produce. Mention of costs raises the whole question of the front-end loading of the costs of litigation that case management and rules reforms have led to. That is something else that the senior bar has complained of and spoken out against for years now. Is anyone listening? Queen’s Counsel On to the appointment of Queen’s Counsel. Last year, when of the four appointments, only one was in full time practice at the bar, I pointed to the need for the senior bar to be strengthened, a need which arose not only from natural attrition
(retirement or semi-retirement, judicial appointments) but also from the growth of the independent bar as a whole. I do not believe there is any issue with the value of Queen’s Counsel (or Senior Counsel as they will become when regulations are promulgated under the new legislation) and the need for leadership and the setting of standards by counsel of experience who are identified and recognised accordingly.
So how many Queen’s Counsel were appointed this year? Two. Why is that? Is the middle bar so weak that only two are worthy of appointment? Absolutely not. And I do not think the judges would think that either.The decision is that of the Attorney-General, who must have his reasons. What they are I cannot tell you despite the fact that, along with Chris Darlow, I took part in a consultative process, having also myself consulted with the senior bar. The vice in the system, in my view, is that the profession’s view is not being stated to the Attorney-General directly and in person. I have written to him asking for that reform to be made. Nor is there any direct dialogue between the judiciary and the representatives of the profession though we have previously asked for that. It may be of course that not all members of the senior bar agree with me that the number of Queen’s Counsel should be increased significantly. And perhaps there are some (judges too) who look at the middle bar and think “the policemen are getting younger”. I do not myself doubt, and from my own personal knowledge and experience of them, that the top dozen or so applicants for silk this year would wear the gown with distinction. And, more importantly, the courts would be that
much better for it. The courts need a strong senior bar as much as we need strong and able judges. Appointment of Judges That in turn leads to appointment of judges of the High Court and above. There has been much disquiet with some appointments in recent years. The question, however, is not whether such reservations are justified or not. In fact, it would be difficult to single out any particular judge or judges as being completely unworthy of appointment. The real concern is that the profession is all too often left mystified as to why a particular person was appointed ahead of other, more obvious, lawyers (or, in the case of appellate appointments, judges). This mystification is often that much the greater when an appointment is made of a lawyer who has not practised in the courts or at least has not had an extensive litigation practice. This is a serious matter because there is often the suspicion (probably unwarranted in facts) of personal favouritism. That over time can lead to concerns about the integrity of the system, something which has the potential to undermine confidence in the maintenance of proper constitutional convention in this country. For that reason, it is my personal view that the option of establishing a Judicial Commission to deal with appointments needs to be put back on the agenda. So what is the answer to my question posed in a deliberately provocative title to this editorial? Everyone will have their own. Mine is that I remain content with the fundamentals of our court system but have increasing concerns that those fundamentals are in danger of being undermined. — Jim Farmer QC
N.Z. Bar Association Newsletter. June 2006. Page 4
‘Grace, expertise, good humour and humility’ I
n May 2002, speaking at the swearingin ceremony for Justice Ellen France, the Hon Margaret Wilson remembered the judge’s intellectual abilities from the days when she “had the privilege” of lecturing her at Auckland University. Only four years later, the AttorneyGeneral, Michael Cullen, announced the judge’s appointment to the Court of Appeal. A beaming profession was
Justice Ellen France
quietly delighted although not altogether surprised. The judge’s career path has been stellar. After eight years working as senior legal adviser in the Department of Justice, where she worked also with Sir Geoffry Palmer when he was Minister of Justice, Justice France was appointed a Crown Counsel in 1992. In this role her considerable litigation skills emerged. She led the Treaty issues and international law team, the Bill of Rights team which the then Solicitor-General asked her to establish and, finally, the law officer team during which time she was appointed Deputy Solicitor-General. During her time at Crown Law, Justice France appeared as lead counsel for the Crown in an impressive range of cases and in a variety of jurisdictions. She engendered enormous respect from her peers and protégés and her judgement and intellect secured the trust and admiration of those she advised and represented.
Continued from p.1
At the time of her appointment, counsel who were to appear before Justice France knew that preparation would be key. Counsel have since found in Justice France a judge who is frequently more prepared than they; a judge who will ask the difficult questions and test the competing arguments. The decision to appoint Justice France to the Court of Appeal was widely applauded. Her reputation precedes her into the courtroom. This judge presides with grace, expertise, good humour and humility. As public law precepts are increasingly drawn into many other areas of law Justice France’s public law grounding is a valuable adjunct to the public law expertise of the Court of Appeal. The New Zealand Bar Association congratulates Justice France and wishes her well in a career that continues to be distinguished by her legal acumen and commitment to public service. — Karen Clark, Crown Law
New councillor The Council is delighted that Colin Carruthers QC has agreed to be appointed to the Council. He replaces Mary Scholtens QC, who has resigned. The Bar Association is very grateful to Mary for her valuable contribution to the Council. Chris Gudsell will become vice president in place of Mary Scholtens. A new treasurer has yet to be appointed.
Support for new judge silk in 1997. Finally he became SolicitorGeneral in 2000. His appointment as Solicitor-General followed the period when women had been appointed to the offices of Governor-General, Prime Minister, Chief Justice and AttorneyGeneral. The Dominion drew upon this theme by reporting on his appointment under the headline “It’s a boy!” Not much attention should be paid to the criticisms made by Mr Murray McCully MP. It is plain that they do not reflect the views of the National Party, which had been consulted on the appointment in accordance with convention. The presence of the “shadow” Attorney-General, Mr Chris Finlayson MP, at the appointment ceremony also confirms this. Moreover, what appears to have most upset Mr McCully is the prosecution of Mr Nick Smith MP for contempt, and given the prosecution was successful any criticism along these lines lacks any substance. Most importantly, the criticisms are simply inconsistent with the widespread support of the bar, and the profession generally for Justice Arnold’s appointment. His is a lone voice. In his comments at his appointment ceremony, Justice Arnold noted that he had originally been tempted to return to the bar, but that a sense of obligation had ultimately persuaded him to accept appointment. Whilst those at the bar will miss his continuing practice as a barrister, they nevertheless welcome this decision. — Francis Cooke QC
Auckland Silks’ Bar Dinner A bar dinner for the two new silks, Brian Keene and Bruce Gray, will be held at the Northern Club on 28 July 2006. ● Mark your diaries now. N.Z. Bar Association Newsletter. June 2006. Page 5
Good response to NZBA bulk buying schemes There has been a good response by members to the various bulk buying schemes (and discounts) that members may now enjoy for a range of products and services. To date 110 members have signed up for the OfficeMax/NZBA Plan and 105 members to the Vodafone/NZBA Plan. Members are reminded that OfficeMax is now recommended as the preferred supplier of stationery to members. It provides some significant discounts off the normal retail prices of heavy usage items with discounts ranging from 10%–50%. A 30% discount on all other general stationery is available. OfficeMax guarantees free next day delivery for orders over $40 plus GST from its distribution centres in Auckland, Wellington and Christchurch. As previously noted the NZBA must meet a minimum target of purchases so the Council actively
encourages members to join the NZBA OfficeMax Plan. Many members are now enjoying their new free phone courtesy of Vodafone. Members who join up to the 36 month term NZBA/Vodafone Plan will pay: ♦ ♦ ♦
Again,Vodafone is prepared to reconsider the rates depending on the level of uptake by members of the Vodafone/NZBA Plan.
$30 per month rental plus GST 0.30 cents per minute for all calls day and night 0.15 cents for all mobile calls to other members of the Vodafone NZBA Plan
Once those members wishing to join have been signed up then in due course the Council will circulate a list of those members who have joined the NZBA Vodafone Plan (so that calls between members will qualify for the 0.15 cent rate). Members are also reminded that the NZBA/Vodafone Plan is available to family and staff of NZBA members and a number of members have taken up this added benefit.
The Council is continuing to progress other initiatives (including insurance). The Council is especially pleased that it has successfully concluded a review of the Bar Association’s professional indemnity cover. A new contract of insurance has been negotiated and the new package will now include additional cover at nil additional cost plus a discount on existing premiums. The Council will be reporting to members shortly. It is not too late to join the OfficeMax/NZBA and/or Vodafone/NZBA Plans. If you wish to do so then please advise Gené Tibbs by email (nzbar@xtra.co.nz) or fax (03 5444206) providing your full name, address and telephone details.
Summary of April 12 Council minutes The Council met on April 12, 2006 in Tauranga. Apologies were received from Miriam Dean QC, Stuart Grieve QC, Elizabeth Hall and Stephen Mills. Professional indemnity insurance was discussed and it was agreed to meet with Aon and Marsh to discuss their respective proposals. The February 2006 and March 2006 accounts were presented to the meeting. Mary Scholtens QC has resigned from her vice-president role and also from Council. (See “New Councillor” on p.5.) Lord Cooke, Justices Gault and Keith and Richard Craddock QC will be appointed life members of the
association. Membership fees will be added as an item to the annual general meeting agenda with an increase occurring over a two year period. A membership drive letter has been circulated to over 600 non-member barristers. The Administrative Committee has met to discuss the administrative resources required by Council and will circulate a report to Council for consideration at the next meeting. Conference topics, possible speakers and timetable were discussed at length. Jonathan Eaton will be in London at the time of the first annual
International Bar Association Leaders’ Conference and it was agreed that the association would pay his conference fee to attend the conference as it will cover issues of interest to this association. Jonathan Eaton will follow up on an ICC Monitoring and Outreach Programme while he is at the conference. Stephen Mills and Adina Thorn are researching the new Lawyers and Conveyancers Act to identify regulation-making areas. Jim Farmer will speak to Chris Darlow to discuss formalising process for making rules to ensure the association is part of the process. Terry Sissons will draft and circulate to Council before the next meeting ● Cont. on p.7
N.Z. Bar Association Newsletter. June 2006. Page 6
The future of the intervention rule will be reviewed as part of the rule-making process under the Lawyers and Conveyancers Act, says NZLS president Chris Darlow.
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Profession still going to set and maintain standards
he new legislation is expected to come into force on July 1 2008, replacing the outdated Law Practitioners Act 1982. The profession will remain responsible for setting and maintaining standards and will have more effective powers to regulate conduct and ensure that lawyers provide good service. Lawyers will be able to incorporate, there will be a capped fidelity fund, and outmoded costs revisions procedures will be abolished.
it comes into force. The practice rules will be made by the NZLS Council. The Act requires the Council to consult lawyers and others before the rules are approved by the Minister of Justice. In deciding whether to approve rules, the minister is required to have regard to the fundamental obligations of practitioners, the interests of consumers, consistency with New Zealand’s international obligations and the rights and obligations or practitioners under the law.
Lawyers will retain a smaller area of reserved work than in the past. A new profession of conveyancing practitioners will be able to compete with lawyers to provide conveyancing services. Lawyers will be able to compete with real estate agents to sell property. Practitioners will be required to hold practising certificates and to submit to the minimum levels of regulation provided for by the Act. However, membership of district law societies will be voluntary.
The NZLS Council and Board will develop design papers for various rules, regulations and guidelines. There will be consultation on the design papers,further drafts, another round of consultation, completion of the practice rules and reference to the minister for approval. The rules will then be promulgated and an education process will take place. Four draft papers have already been prepared. After being considered by the NZLS Board, they will be sent out for preliminary consultation.
The legislation has a long lead-in time because a large number of practice rules and regulations need to be made before
Mr Darlow notes that the process will touch on “every area of professional
Continued from page 6
Summary of Council minutes some intervention rule alternatives for consideration. It was agreed that the association will not seek representation on Law Society Disciplinary Committees in cases of complaints against barristers. The bulk buying committee is continuing work to bring members further bulk buying privileges. Matthew Ward-Johnson, Jonathan Eaton and Adina Thorn were asked to enqire about the feasibility of employing a consultant to monitor the website and report back to Council.
The association has agreed to cohost an “Independent Bar and Judiciary Function” with Kensington Swan. Tony Hughes-Johnson is following up on judges’ undertakings not to practise after retirement or resignation. Items for discussion at the next meeting include training/pupillage and continuing education, court fees and the intervention rule. The next meeting will be held in Christchurch on June 15, 2006.
governance and virtually every practice area”. He expects there will be 10 separate papers, covering issues ranging from ethical rules and client care to incorporation, Senior Counsel and the possibility of compulsory continuing legal education. As part of that process, there will be debate about whether the intervention rule should be retained. Mr Darlow says there are “two conflicting views about that, and it will be necessary to grapple with them”. Although past attempts to do this have been unsuccessful, he says “the time has finally come for the issue to be dealt with”. Mr Darlow notes that the minister may have a particular view about whether the rule should continue, but that will not necessarily be determinative. Mr Darlow says he is not pre-judging the position, and will in any case have left office before a decision is made. However, he says that even if the rule were to be abolished he anticipates that many barristers would continue voluntarily to apply it. His soundings indicate that those practising particularly in the commercial and civil fields would be particularly likely to continue to use instructing solicitors. Former NZLS president and Kensington Swan partner Ian Haynes, who designed the model on which the legislation is based, also expects that the minister and the Ministry of Justice will have views about whether or not the intervention rule should be retained. He says “the rule is regarded by some as anti-competitive and the final decision may not be solely one for the profession”. One possibility is that the final decision may be that it will be left up to individual barristers to decide whether or not they practise in accordance with the rule. ● Cont. on p.8
N.Z. Bar Association Newsletter. June 2006. Page 7
Profession still going to set and maintain standards — cont. from p.7 “I can’t think of any terrible evil anyone has at all convincingly put forward that might flow from at least making the intervention rule optional. Clearly barristers should be free to decide to accept instructions only from solicitors, but whether it should be applied compulsorily to all barristers is another matter.” The current president of the New Zealand Bar Association, Jim Farmer QC, and a former president, Raynor Asher QC (now Justice Asher), have, however, taken a much more cautious approach to the abolition of the intervention rule. Justice Asher, writing an editorial on the subject for the association’s newsletter of September 2005, said the association must fight to preserve the intervention rule. “The intervention rule must be maintained.This is because it is of benefit to the public that there are specialist advocates in place who are part of a profession that does not deal directly with clients but, rather, through solicitors. This separation enables the barrister to be independent, and a solicitor to brief the barrister without fear of losing the client,” said Justice Asher. Mr Farmer notes that the association conducted a survey of the bar last year, seeking views on the continuation of the rule and found that barristers were very evenly divided in their opinions as to whether the rule should go, be substantially modified or stay in its present form. “The Council of the association therefore has the unenviable task of trying to devise a formula for the future that may end up pleasing few. My own personal view is that the rule should be relaxed to accommodate the reality of what is happening anyway in the criminal area (particularly where legal aid is granted without provision for an instructing solicitor) but also in other areas such as family law. However, it is essential that we don’t throw the baby out with the bath water by destroying the concept of a barrister as a specialist
advocate who operates with a degree of independence and for that reason safeguards and conditions need to be developed. In this respect the council has looked closely at the current New South Wales model and has the subject under continuing scrutiny.” Mr Darlow identifies as the two key areas for design papers ethics and client care and the establishment and operation of the Standards Committee. If the intervention rule is to continue, it would most likely appear in the rules relating to ethics and client care. Part 2 of the new legislation sets out restrictions on the provision of legal and conveyancing services. Section 21 provides that it is an offence for persons who are not lawyers or incorporated law firms to provide legal services or hold themselves out as lawyers. Section 22 states that it is an offence to mislead people into believing that one is a lawyer or holds a practising certificate if that is not the case. Under section 22(3), it is an offence to use words causing or likely to cause people to believe that a person has a qualification in law or special expertise in any branch of the law, unless that person holds that qualification or possess that special expertise. This means that practitioners wishing to hold themselves out as experts in a particular field will need to be able to demonstrate that expertise.
Mr Darlow says Part 2 dramatically improves the current position in relation to people holding themselves out as possessing legal qualifications or special expertise. The Law Society will in future be able to take action against such people. However, he says the new provisions also reawaken the debate over accreditation for practitioners. Accreditation has been debated over the past decade, particularly within the Family and Property Law Sections, but no formal accreditation scheme has emerged. Mr Darlow believes that accreditation may in future emerge as a result of the legislation, but does not anticipate that this will happen in the short term, as there are too many other issues to be finalised prior to the act coming into force. Pupillage for junior barristers is another issue which has been debated in recent years. The New Zealand Bar Association has been keen for the NZLS to prescribe minimum training requirements for barristers. There are no such requirements at present. Mr Darlow says that the NZLS has been sympathetic to the Bar Association’s request, and will be holding detailed discussions with it about this issue in the coming months. “As we move through the year, some of the issues directly affecting barristers ● Cont. on p.10
Note to Members
Avis Corporate Rate As a result of a member query, Avis suggest that when bookings are made, members request the “best rate” as there are often “specials” at certain times of the year and these specials may be cheaper than the corporate rate which members now enjoy. At other times, however, don’t forget when booking a rental car to quote the NZBA Corporate Number in order to qualify for the corporate rate. N.Z. Bar Association Newsletter. June 2006. Page 8
Exchange of correspondence between Bar Association and Mr McCully The president of the Bar Association, Jim Farmer QC, wrote the following letter on May 5 to Murray McCully, MP:
(Mr McCully’s reply, p.10) N.Z. Bar Association Newsletter. June 2006. Page 9
Exchange of correspondence : from p.9 Mr McCully replied:
Continued from p.8
Profession will still set standards will become clear and we will certainly be talking to the New Zealand Bar Association about them. Jim Farmer and I have already agreed that there will be a high level of consultation.” Mr Haynes says he believes there is a good argument for some form of pupillage. Provisions in the Act permitting law firms to incorporate will in future mean that barristers can also incorporate, according to Mr Haynes. He says the benefits of incorporation are administrative. Incorporation will simplify the mechanics of law firms entering into contracts, including leases. It should also assist lawyers in avoiding personal contractual liability. However, the practice rules will need to address the extent to which practitioners will
be permitted to negate liability to clients. For example, liability in tort for negligence could be negated in terms of engagement. Mr Haynes says this will also involve consideration of what liability may flow from the fiduciary obligations which exist between lawyer and client. The Court of Appeal in a 1992 case relating to a valuer in a one-person, incorporated practice held that the valuer was not personally liable in negligence. The issue now is whether the position will be any different for the legal profession, particularly having regard to the fiduciary obligations owed by lawyers to clients. Mr Haynes says it is unclear whether
barristers will wish to incorporate. However, he expects that a large number of law firms will choose to do so. He says barristers, like all other practitioners, will need to have client care rules, although these may apply in modified form if the barrister is instructed by a solicitor. Lawyers considering whether to incorporate will need to take into account tax issues and also compliance costs. The legislation also replaces the title of Queen’s Counsel with that of Senior Counsel. Senior Counsel will be able to be appointed from firms. Mr Haynes says issues relating to Senior Counsel practising in firms will need to be worked through in the practice rules. ■
N.Z. Bar Association Newsletter. June 2006. Page 10
Not easy getting started — but few have any regrets
N
ew barristers face a range of challenges when they leave the security of firms and establish their own practices. Issues to be considered include setting up and maintenance of IT systems, library facilities, workflows, maintaining contact with peers, and having colleagues to act as mentors and provide advice in respect of specific files.
deliberate choice to set up his own chambers rather than going into an established situation, as he wanted to be uncompromising and establish his chambers in his own style after 20 years in partnership.
Tauranga barrister Genevieve Denize hung out her own shingle in September last year, following a number of years of practice as a civil litigator in a range of firms. One impetus for her decision to strike out on her own was an Australian Supreme Court judge, who told her following a mooting competition that she should seriously contemplate going to the bar. The remark stayed in the back of her mind and she decided the time was right last year.
“My first new brief came two days before I opened my chambers. A wellknown sportsman needed to restrain a Sunday newspaper, on the basis of breach of confidence. All the materials I needed were in the library next to me. The virtues of a good library were clear from the beginning.”
Ms Denize has kicked off by working from a home office, but intends to go into chambers next year. She believes it is better to take slow steps and establish good relationships with practitioners, rather than rushing into chambers straight away. She says she consulted with other practitioners about library facilities prior to setting up her own practice. Many of them advised her that she would not require her own database, but she decided that Brookers services offered so much valuable information that she could not afford to be without them and has subscribed to Brookers online libraries. Ms Denize makes a point of devoting one to two hours every day to keeping up-to-date with legal developments, subscribing to law journals and ensuring she reads articles. She has good relationships with some local solicitors, and could use their facilities for research if necessary. Wellington barrister Stephen Kos also stresses the importance of good library facilities. When he left Russell McVeagh to go to the bar, he made a
He describes a library as a fundamental tool for a barrister, stating that scrimping on a library is false economy.
Wellington barrister Chris Chapman made the opposite decision to Mr Kos, opting to join an established chambers so that he did not have to start from scratch with issues such as leases, research facilities and IT systems. He says one advantage of going into an existing chambers was that a library had already been set up. However, he says he uses the High Court library more than he did when he was at Buddle Findlay, ensuring he drops in regularly to keep up-to-date with publications not held by the chambers. Ms Denize says that ensuring client confidentiality is preserved can be difficult when seeking advice on a file in a smaller centre. There is only a small number of barristers doing civil litigation
work in Tauranga and she must ensure there is no conflict before discussing a file with another lawyer. She says she does not refer to names and discusses matters generically. “I’ve got probably three or four people whose opinions I value. There is enough of a spread so there has not been an issue yet.” Ms Denize says clients’ main concerns when she explains the intervention rule to them are that issues will be double handled and they will end up with large bills. She explains this is not the case. She says that most of her work in any case comes through solicitors. But some clients who have approached her directly find the intervention rule archaic and silly. However, Ms Denize notes that benefits of the intervention rule are that the barrister is able to bounce ideas off the solicitor, and that funds can be held in the solicitor’s trust account. As a new barrister, she says she is lucky in having the financial security of being married and having another income coming into the family. If it were not for that, she says, it would be natural to feel a certain anxiety about work and cashflows in the early stages of the practice. However, she says she grew up with two parents who were both selfemployed and she worked for them and understands that work ebbs and flows. ● Cont. on p.12
ANNUAL IBA CONFERENCE, CHICAGO 17-22 SEPTEMBER 2006
Over 3000 international lawyers are expected to attend the IBA Conference in Chicago in September. This conference represents a unique networking opportunity with over 150 working sessions covering all areas of practice and two show case sessions focusing on judicial reform and corporate governance issues which should be of interest to lawyers of all disciplines. More information can be obtained from the IBA website: www.ibanet.org/chicago06/index.cfm. N.Z. Bar Association Newsletter. June 2006. Page 11
NZ Bar Association 2005–2006 Council — Contact details Miriam Dean QC miriam@barrists.co.nz
Ph: 09 377 8959 Fx: 09 377 8960 P O Box 4111 Auckland
Stephen Mills
Ph: 07 839 3290 Fx: 07 834 0587 P O Box 19085 Hamilton
Jonathan Eaton j.eaton@xtra.co.nz
Ph: 03 372 3466 Fx: 03 365 2592 P O Box 13-868 Christchurch
Trevor Shiels
Secretary Gené Tibbs nzbar@xtra.co.nz
Ph: 03 544 4202 Fx: 03 544 4206 P O Box 3595 Richmond Nelson
Stuart Grieve QC stuart@grieve.co.nz
Ph: 09 358 1716 Fx: 09 358 1718 P O Box 4555 Auckland
Terry Sissons terry.sissons@xtra.co.nz
Colin Carruthers QC crc@crcarruthers.co.nz
Ph: 04 471 4275 Fx: 04 471 1195 P O Box 305 Wellington
elizabeth.hall@paradise.net.nz Fx: 04 939 9269
Ph: 04 939 9039
Adina Thorn
Ph: 09 307 9953 Fx: 09 307 9954 PO Box 4420 Auckland
Matthew Ward-Johnson
Ph: 07 579 0408 Fx: 07 579 0404 P O Box 13561 Tauranga
President James Farmer QC
Ph: 09 358 7090 Fx: 09 358 7091
P O Box 1800
Auckland
Vice-President Christopher Gudsell ctgudsell@xtra.co.nz
jamesfarmer@queenscounsel.co.nz
Continued from page 1
stephen.mills@shortlandchambers.co.nz
trevor.shiels@barristerschambers.co.nz
Ph: 09 307 9820 Fx: 09 307 1572 P O Box 4338 Auckland Ph: 03 477 4030 Fx: 03 477 7320 P O Box 1219 Dunedin Ph: 04 471 1380 Fx: 04 499 8795 P O Box 23063 Wellington
Big changes in District Court Rules Elizabeth Hall
adinat@xtra.co.nz
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
ward-johnson@tgachambers.co.nz
Continued from p.8
Not easy getting started
She says the most important financial strategy is to put money away for a rainy day when income is good, as there will inevitably be quiet times. However, she says she probably has greater concerns about managing to get everything done in really busy times, rather than dealing with quiet times. “When the heat comes on, you are on your own and have no support.” Downtime, by contrast, can be used to catch up on reading or administration. Ms Denize says she has found the collegiality of the profession to be a real positive of her move to the bar. Other barristers and lawyers in small practices have been far more supportive of her than she had expected. Mr Chapman describes his move to the bar as a liberating experience. He says there is far greater freedom to organise one’s own day and it is a pleasure not being subject to the administrative demands of a firm. However, he misses the camaraderie of a large firm. Mr Kos echoes that view, saying he misses the close daily contact with other practitioners offered by a big firm, but has no regrets about going to the bar. One aspect of large firm life he does not miss is the leveraging off partners, which required him to manage a team of up to nine solicitors. He wanted to
get away from that and spend more time doing coal-face strategising and research, rather than managing staff. He has now reached a happy medium, with a junior barrister due to start work with him next year. Mr Kos says one of the real benefits of the bar is the ability to have uninterrupted blocks of time in which to work. The price of that is seclusion and there is a need to ensure one does not become “monastic”. Mr Kos says he accordingly makes a point of getting out of his chambers to lunch with friends. He plans to expand his chambers in coming years, so that there will eventually be three or four barristers working there. Mr Kos says law firms have very good disciplines and focus heavily on client service and innovation. He believes it is important to retain those focuses as a barrister. This means working hard on innovation and ensuring that systems are efficient. Barristers do not have IT people on tap and Mr Kos believes there is a market niche for an IT business to focus solely on providing services to barristers’ chambers. He says he set up his own website, as is the practice with barristers’ chambers in England. Experience shows that few barristers regret joining the independent bar. While it offers new challenges — such as explaining the intervention rule — the rewards can be immense.
Bar chat ... The Bar Association welcomes new members to the independent bar and association: Anne Marie Aitken Judith Bassett Inger Blackford Daniel Flinn Bruce Hesketh Robert Hollyman Susan Hughes Simon Jefferson Stephen McCarthy Susan O’Regan Tony Shepherd Lisa Soljan Iain Thorpe Nikki Utting Greg Webster
Auckland Auckland Auckland Christchurch Hamilton Auckland New Plymouth Auckland Auckland Te Awamutu Auckland Auckland Wellington Rotorua Auckland
✸ ✸ ✸ ✸ ✸ ✸ During the meeting in Tauranga on April 12, the Council held a successful get-together with members of the association. There was much discussion about the value of the intervention rule and the need for training of young barristers. ✸ ✸ ✸ ✸ ✸ ✸ The Bar Association congratulates Brian Keene and Bruce Gray of Auckland, who have been appointed silks.
N.Z. Bar Association Newsletter. June 2006. Page 12
COUNCIL MEETINGS
RAISING THE BAR: ANZSLA CONFERENCE
Proposed dates and locations for Council meetings are as follows: 15 June 1-3 September 12 October 30 November
– Christchurch – Conference – Auckland – Palmerston North
12 & 13 OCTOBER, AUCKLAND ANZSLA will be holding its conference in Auckland, 12 to 13 October 2006. Members are invited to log into the ANZLA website for further information on the event www.ANZSLA.com.au/events/?eventsD=4
Economic Damages A practical examination of the essential elements to claim and prove economic damages When � 19 July 2006 Where � Langham Hotel, Auckland This separately bookable two-part seminar has been carefully designed to explore the interface between legal and economic concepts and comprehensively cover all the aspects involved in assessing, quantifying and proving economic or commercial loss. Make sure you don’t miss this unique opportunity to consolidate and expand your knowledge and understanding of: � � � � � �
Identifying heads of economic loss Methodology to establish quantum of economic loss Discounted cash flow analysis Judicial test for admitting evidence as to economic loss Briefing expert witnesses Role of the expert witness in discovery process
This event, chaired by Judge Arthur Tompkins, is presented by an expert faculty which includes: Alan Sorrell, Barrister; Eric Lucas, Partner, PricewaterhouseCoopers; Jai Basrur, Director of Corporate Finance, Horwath Porter Wigglesworth Ltd; Iain Thain, Partner, Phillips Fox; Chas Cable, Partner, Deloitte; Colin Pidgeon QC; Paul Dalkie, Barrister; and Ben Upton, Senior Associate, Simpson Grierson.
Part One: Part Two:
Claiming Economic or Commercial Loss Proving Economic or Commercial Loss
NZBA Member Special! Members may attend two parts for the price of one! This represents a 57% saving off the normal fee – you pay only $395. Fee includes comprehensive documentation.
Quote NZBA06 to qualify for this special rate.
For more information on these events please visit www.lexisnexis.co.nz/conferences P 09 486 9572 E seminars@lexisnexis.co.nz N.Z. Bar Association Newsletter. June 2006. Page 13