James Farmer


The Year in Retrospect

Tuesday, January 19, 2016
Many journalists find reviewing a year that has just ended irresistible.   The temptation to point out the obvious is in reality a pointless exercise, even for the benefit of those who suffer short term memory loss.  However, the temptation is not confined to journalists and so I will make a few observations about 2015 and, apart from shortly recounting my own experiences, endeavour to identify some developments in the legal system that appear to have taken some hold.

Looking first at my own year, legally speaking, one feature was that for once I did not have a long trial in the High Court.  Trials of any length, with many witnesses and legal argument, are the most challenging work that a barrister can do.  All the advocate’s skills are called to use.  Leading and cross examining witnesses – well cross examining anyway given the continuing prevalence of written briefs (about which no more here) – is what most people believe to be the central role of a barrister.

The reality is of course something else with many court lawyers lacking the opportunity to take an active part in a witness action.  That was the subject of some complaint by a young lawyer who took part in a panel at the excellent Bar Association Conference in Napier in August where the subject of advocacy training was examined.  Her point was that it was incumbent on senior counsel to take young lawyers into the Court room and – and this is a big and – to give them the opportunity to lead and/or cross examine a witness or two.

A response from a senior counsel from the floor was that this was a big ask given the duties owed to the client to conduct the case as effectively as possible.  My response was and is that, first, it is absolutely right that taking young lawyers into court and to the bar table is the right thing to do, irrespective of whether it will be appropriate to charge the client for their presence.  I have commented before that it is important that young lawyers who have worked on a case get the opportunity to see the results of that work in action.  That is how they will best make the transition from the academic to the practical, from the theory to the reality and how they will best learn that merits in the broad sense do count whether Judges acknowledge or recognise it themselves.

My second response is to say that it is better to learn the skills of dealing with witnesses – including that most difficult task, re-examination – by observing experienced counsel doing it (coupled with lots of questions afterwards) than to blunder into the deep end without any real understanding of the do’s and don’ts and of the techniques required.

Having said that, I do wish to commend the Bar Association for the truly excellent Advocacy Training Workshop that it put on in November and at which litigation lawyers of varying degrees of experience undertook cross examination on supposed affidavits of new graduates (who proved to be very adept at dealing with difficult questions!).   The exercise was critiqued by Queen’s Counsel and retired Judges.   What was amply demonstrated, given the high standards achieved, was the fact that one of golden rules of good cross examination is preparation and mastery of the material.

The highlight (or low point if you take account of the result) of my Court year was probably the judicial review proceeding heard by Justice Venning against the decision of the Auckland City to give resource consents to the Ports of Auckland Bledisloe Wharf extension without public notification.  This has always been a controversial area of the Resource Management Act, despite, or more likely because of, attempts by Parliament over the years (and in particular by statutory amendments in 2011) to reduce the occasions for public participation in the resource consent process and the inevitable delays that result.  I had previously been on both sides of this argument, in the Supreme Court in Discount Brands (one of the first cases heard by that Court) and in the Court of Appeal in Body Corporate 97010 v. Auckland City.

The interlocutory steps leading up to the hearing of the Port case were more challenging than usual, complicated considerably by a parallel challenge to that taken by Urban Auckland by a Devonport resident who was dissatisfied with the interim arrangements that had been entered into.  A trip to the Court of Appeal was abandoned at the last moment when the plaintiff withdrew her proceeding.  But, in any event, Urban Auckland prevailed in the High Court with both the Council and the Port Company electing not to take the matter further thereafter.

In the Ports case, I worked with Malcolm Crotty and Kylie Dunn of Russell McVeagh and Derek Nolan  barrister.  Richard McIlraith, a long standing Russell McVeagh partner was also involved though peripherally.    I would however want to make mention, in passing, how much I have enjoyed working previously with Richard and Kylie for the Ports of Auckland in its long running disputes with the Maritime Union.  Richard has accepted an appointment as a District Court Judge sitting on criminal cases at Manukau.  He had over many years established an unparalleled reputation as an employment lawyer and this change of direction is a move that is to be commended and will be very much to the benefit of the Manukau Court.

Outside the court room, I very much enjoyed a 3 day conference in Sydney of competition regulators from around the world to which I was kindly invited by the Commerce Commission, not to talk but to listen.  It is always interesting to be on the other side of the fence and it is one of the really good aspects of being a barrister that, subject to managing conflicts that may arise in particular cases, it is possible to act in different cases for clients whose interests may be diametrically opposed as a matter of position or commercial or other interest.  Monopolist/new market entrant; employer/employee; prosecution/defence; local authority/ratepayer or home owner; controlling shareholder/minority shareholder; regulator/regulated; and so on.  It was interesting to me several years ago, having acted for some time for monopolists, to find when instructed by a new entrant to the market faced with monopoly resistance how the precedents that I had previously relied on and highlighted particular passages in the Judgments somehow read differently!

Another area of non-High Court (but judicial) activity that I have enjoyed and that occupied a reasonable amount of time during the year was the Sports Tribunal which hears disputes between athletes from different sports and their sporting organisations (often selection disputes) and drug enforcement proceedings initiated by Drug Free Sport New Zealand.  The Tribunal is chaired by former High Court Judge, Sir Bruce Robertson, with Alan Galbraith QC and I as Deputies and a panel of very experienced ex athletes and sportsmen and women.  A feature of the Tribunal’s processes is the speed with which disputes get to a hearing and in which reasoned Judgments are issued (at most 2 or 3 days).

For someone who has never been a Judge, it is a fascinating experience to become one, albeit in a forum that is less formal than the regular courts.   As I expected, there is a temptation to intervene and to challenge the lawyers’ submissions with a fair degree of vigour.  Within reason, that is obviously to the good.  As referred to above, the merits of the case (beyond the strictly legal) are always there as a siren drawing one to the rocks and so a certain amount of discipline is required.  That is where collective decision-making is a plus and where the broad sporting experience of the other members is a real aid.

Moving out of the legal professional area altogether, the highlights for me for the year have been the road trip through the south western States of America previously recounted in an earlier blog.  One of many positive features of this was the exposure to the events and thinking of another country and indeed in the world at large.  Away from the legal world and its constant demands for at least a few weeks puts that world back into its correct perspective.  Suddenly, the problems of the New Zealand legal system, although real and still there, lose their drama and urgency.

As lawyers and Judges, we alternatively pat ourselves on the back for upholding the Rule of Law and criticise ourselves for the imperfections of the system.  But our achievements and our failings truly pale into insignificance when we are exposed to the full reporting of the problems and human misery that are created by events in the Middle East, in Africa and even in the United States (as exemplified by the state of their gun laws and daily mass shootings in schools and elsewhere) that is defended by the Law in the United States by the constitutional right to bear arms.

Having said that and returning to the New Zealand legal scene, the big mover here in 2015 was the cause of Access to Justice, stimulated initially by Justice Helen Winkelmann’s Ethel Benjamin address delivered in November 2014.  Along with others, I have written on this and the Napier Bar Association Conference referred to above adopted this as a theme for a number of the sessions.  My comments on the issue have tended to focus on the increased costs of litigation generated, first, by lawyers using the hourly rate as the basis for charging for litigation services and, secondly, by continual development of court rules supposedly in the interests of making the process more efficient but in reality adding hugely to costs because of the prescriptive requirements of prior disclosure and the reduction to writing of all evidence and submissions.  (Enough!)

Of course, the savings in cost to the Government by the drastic reduction in the availability of legal aid has seen those savings matched by the increased costs that arise from the equally dramatic increase in the number of unrepresented litigants adding to hearing time and disturbing the judicial role of objective umpire conducting a proceeding with optimal efficiency consistent with the right to be heard.

The rise of the unrepresented litigant has exposed the frailty of a rule-dominated process that only those trained in the rules can understand and be expected to follow.  It has also brought into focus the fact that the adversarial process is dependent on a principle of equality of arms – not necessarily lawyers on each side of equal competence and experience, but lawyers who know the rules nonetheless.

It was perhaps this realisation that led Justice Raynor Asher, in speaking at the Bar Association Conference, to suggest that what was needed was a more radical examination of the adversarial nature of court proceedings and a consideration of whether a more inquisitorial process would provide a more affordable system of dispute resolution.  That is an interesting proposition and brings to mind Continental systems.  I had the truly great privilege a long time ago in my Cambridge days to attend the comparative law lectures given by the late Professor Jack Hamson who compared the French droit administratif as administered by an inquisitorial process with the English adversarial process.  He never drew any conclusions as to relative merit, while however pointing out the strengths and weaknesses of each.

More recently, in the area of the interpretation of commercial contracts, Lord Neuberger, in a paper given to the Banking Services and Financial Law Association Conference in Queenstown in August 2014 (in which he also repeated his judicial reservations about Judges using commercial common sense – contra, the Supreme Court Judgments in Vector - which he said was “about as reliable as a businessman’s idea of legal principle”) said:

“In civilian law jurisdictions where judges are used to rolling their sleeves up and getting involved, as juges d’instruction, and where the theory of contract is very different from that of the common law, imposing what the court thinks is a fair solution in a contractual dispute, may well be appropriate.  But in a common law system, where the judge is a detached impartial umpire, and party autonomy is accorded great importance, we should be concentrating on the contractual provisions which the parties have agreed when deciding on their rights and obligations.  And the international commercial world votes with its feet, by opting for the common law when it comes to its resolution of their disputes.”

In a sense, case management probably represents the first step towards a more inquisitorial, less lawyer, more Judge, dominated process.  I would suggest, instinctively but not empirically, that the efficiencies gained by case management are outweighed by the increased costs of the accompaniments.  

So, for 2016, clearly a lot more effort will go into trying to solve the twin problems of access to Justice and the unrepresented litigant.  Without wishing to decry those efforts, I have to say that the likelihood is that this time next year will see the problems greater rather than reduced.

Not wishing to finish on a negative note, may I be permitted a small boast, namely that I do practice what I preach (sometimes at least) and on 31 December 2015 I completed my 365th day in a row of running for not less than half an hour a run (usually more).  I do deserve to be called obsessive as I have continued the sequence into 2016.  One thing is sure though, the world record is beyond me.  This is held by the English winner of the 1962 Commonwealth Games marathon, Ron Hill, who a year ago completed 50 years of sequential running days!

Jim Farmer

18 January 2016 

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