Twelve new Silks (King’s Counsel) have been appointed in 2025. They include the first Pacific Island appointee – Tiana Epati, who is Samoan. She has had a stellar career, including as President of the Pacific Island Lawyers’ Association and as President of the New Zealand Law Society. She lives in Gisborne but is also a member of Bankside Chambers in Auckland. Her areas of practice are criminal law, regulatory investigations, companies and securities law and public and administrative law.
King’s Counsel are appointed in New Zealand by the Attorney-General in concurrence with the Chief Justice, after a process of consideration of applications by Panels appointed by the New Zealand Bar Association and the New Zealand Law Society, together with input from the Judiciary. The first appointment was that of Sir Francis Bacon as Queen’s Counsel who was given a patent conferring on him precedence at the Bar in 1597. Queen’s and King’s Counsel in effect took over from the previous sergeants-at-law. In New Zealand, the first KC was appointed in 1907. The total appointed to date is 378. The first women to be appointed, in 1988, were Sian Elias and Lowell Goddard, both of whom later became High Court Judges with Elias ultimately becoming Chief Justice.
Precedence at the Bar remains a feature of the modern system with Judges according hearing priority to KCs who are present in Court on a particular day where there is list of cases for hearing on that day. Similarly, KCs, in order of seniority have priority in their seating at the Bar table. At one time, Silk were always required to be accompanied by a Junior Counsel in Court but that is no longer the case. Similarly, the prohibition on Silk drafting pleadings or advising on the evidence that should be led at trial – both considered the prerogative of the Junior Bar – have gone by the way, as has also the practice of junior counsel receiving a fee two-thirds of that of the senior counsel leading him or her.
An important requirement that is taken into account when considering applications for Silk is the advocacy skills and experience that applicants have. For that reason, barristers whose practice consists entirely of giving advice or who act solely as mediators are not considered to be appropriate for appointment. It is usual for applicants to have a particular area of the law in which they specialise but the assumption that is made about a Silk is that he or she has sufficient advocacy skills to be able to do any kind of case. When I was first appointed when practicing at the New South Wales Bar, although as a junior barrister my practice had been largely in the area of commercial law, I was instructed in a number of personal injuries cases, including one with a jury.
This year in fact marks 40 years since I was first appointed. Having taken up practice at the New South Wales Bar in 1979 after 6 years as a partner at Russell McVeagh preceded by an academic position at Cambridge University, I took Silk in New South Wales in 1985 and was appointed in New Zealand the following year as well as in the State of Victoria and in the Australian Capital Territory. An interesting difference between New Zealand and Sydney was in how the new Silks announced their appointment. In New Zealand, this occurs at a full Court ceremony where each new Silk hands their patent to the presiding Judge, delivers an undertaking to practice competently and then joins existing Silks who are present at the Inner Bar. In Sydney, each individual new Silk attended with the Clerk of his or her Chambers at each of the Courts where they regularly practiced and interrupted whatever case was being heard at the time to announce to the Judge “I have to advise Your Honour that I have been appointed as One of Her Majesty’s Counsel.”
It is to be expected that a Silk will lead the more important cases or those where there is much at stake. In Australia, the case that I appeared in as a Silk that comes to my mind that had significance was a series of 8 judicial review cases where we successfully challenged attempts by the New South Wales Department of Education to close down a private school that had adopted radical new methods of teaching (all lessons in all subjects being conducted in foreign languages). The last of these cases was one where the Department decreed that the senior students of the school were not eligible to sit the State’s external examination because the Department was not satisfied that they had done sufficient assignment work during the year. I had all the students and their parents in the back of the Court and tendered as evidence all the assignments that they had done during the year. The volume of it was sufficient immediately to move the Judge to make an order that that the students were eligible to sit the external examination.
In New Zealand, my return from Australia to practice here full-time again coincided with the flood of litigation that arose from the restructured Commerce Act which was modelled on the litigation-focused United States antitrust laws. I appeared in several of these cases, which included both mergers that were challenged by the Commerce Commission and proceedings between new entrants to a market and incumbents the market who were said to be using their market power to prevent entry. I found them stimulating, in part because I worked with (and against) economists (including some very distinguished ones from the United States) who appeared as expert witnesses.
Probably the highlight during this period however was the Equiticorp case which arose from the acquisition by Equiticorp of New Zealand Steel from the Government, a case that at trial took 13 months, still the longest trial in New Zealand’s history. I had the good fortune to head a large legal team that included two future Chief Justices – Sian Elias who skilfully led the evidence in chief of a reluctant witness who appeared under subpoena and Helen Winkelmann who stepped up to take an important role in presenting legal submissions when Sian was appointed to the High Court half-way through the hearing.
It may be pertinent for me to make some general comments about the changes in litigation in New Zealand over the 40 years that I have been a Silk, both as to the substantive nature of civil cases and the manner in which litigation is conducted.
The big change that occurred in civil litigation goes back to the enactment of the Accident Compensation Act in 1974. Prior to that the bulk of civil cases were common law personal injuries claims. The loss of that area of work to lawyers however coincided with the rapid growth of commercial litigation which was itself the result of the increase in commercial activity in New Zealand. That growth has continued but supplemented by the growth in public law, the result of judicial review cases stemming from increased government regulation, and the enactment of the Bill of Rights Act 1990 and the Human Rights Act 1998.
Allied to the increase in commercial litigation has been onset of mediations and arbitrations, encouraged by retired High Court Judges setting up as mediators and arbitrators. This supplements the provision that is made in the High Court Rules for judicial settlement conferences under which a High Court Judge (usually an Associate Judge in fact) presides over a settlement negotiation between the parties. These have been so successful that concerns have been expressed by senior Judges that they are inhibiting the development of the law through case law. Be that as they may, they are clearly consistent with the moves in recent years to address the problem of access to Justice caused by the increase in the costs of litigation.
One important development of the way in which litigation in the High Court is conducted is the advent of case management under which Judges take an active supervisory and directory role in the progress of cases from the time of initial filing to the time of trial.
Typically this takes the form of regular Judicial conferences at which time table orders for interlocutory steps are made. This undoubtedly has the benefit of addressing the problem of recalcitrant defendants who set out to delay the progress of litigation. However, the latest amendments to the High Court Rules provide for documents and evidence to be filed and served at an early stage rather than in the period before trial, the effect of which is to front- end load the costs of all litigation and at a time when the issues may not have been clarified.
One major change in the way in which trials are conducted is that the evidence of witnesses is reduced to writing in advance of the trial in the form of written briefs of evidence which are then read by the witness in the court room rather than as evidence in chief that is led by questions from counsel in the traditional manner. The courts have had to contend with written briefs that more often than not characterised by expressions of opinion in the nature of submissions. While clearly in breach of the rules of evidence, Judges have not always been successful in ruling such material inadmissible. Where issued of credibility are likely to arise or where the admissibility of evidence in a written brief is in issue, the Court may direct that the evidence be led orally, a power that is not exercised as often as it should be.
Another major change in the appellate system is the replacement of final appeals to the Privy Council in London with the establishment of the New Zealand Supreme Court sitting in Wellington. That has not been a universally accepted change, with frequent complaints that the New Zealand Judges have been overly active in changing the law through their Judgments in cases where, it is said, it is Parliament’s role to change the law after due debate and consideration by democratically elected representatives. That view is perhaps an unduly restrictive one of the role of the common law and of the function of courts to make legislation practical and to fill in the gaps by way of their interpretation. Nevertheless criticisms continue not just from lay people but from some quite senior lawyers. The recent recognition by the Supreme Court of tikanga customary Māori law as part of the common law of New Zealand has been especially controversial, both in terms of principle and the practicality of establishing what the relevant principle of tikanga is.
For the future, access to Justice remains a major issue requiring resolution, if only to meet the problem of the increasing number of litigants in person whose appearance in Court to present their cases does not fit happily with the fact that litigation is conducted by very detailed procedural and evidential rules. Deficiencies in the legal aid system have not been adequately addressed by successive Governments and the onus has shifted unfairly to lawyers to take on an increasing number of cases pro bono. Evidence of this is that in the last few years, one of the criteria that has been added to the qualifications of applicants for Silk has been the extent to which they engage in pro bono work.