The President's Column - February 2025
Welcome back!
I enjoyed meeting members around the country at the functions before the holiday period. I hope that you all have come back refreshed after a great break and that you are looking forward to 2025.
Submission
As reported in the Member Update, the Association filed a submission on the Treaty Principles Bill. The Hon. Chris Finlayson KC appeared before the Justice Select Committee to present the NZBA submission on 27 January 2025.
The Council decided that the Association should make a submission. The time frame for the process was short, and the work had to be done just before the break. Our Management Committee sought expert assistance from a working group of three King's Counsel with considerable relevant experience, who reviewed the Bill and produced a draft submission.
The Management Committee reviewed the submission and, after further input from the working group, distributed it to Council members, before the submission was filed just before the Christmas holiday. I want to thank all involved for their work on this, particularly the three senior counsel who gave their time to work on the submission and appear before the Select Committee.
While there will be different views among our members on the issues raised by the Bill, perhaps there may be agreement that the Bill and Select Committee process is not the right place for an inquiry into New Zealand's constitutional settlement if such an inquiry is needed.
Member Survey
I am keen to hear from members about what they think the Association should be doing on their behalf. We will ask you some key questions about our work and what you need from us. We are aiming to send this survey to members in late March. Please take a few minutes to reply. I am happy to receive informal feedback from members.
The Year Ahead
Turning to the year ahead, I want to share some thoughts on the challenges facing the administration of justice in New Zealand and note some of the work we will be doing.
After time off, my thoughts return to work ahead. This usually involves trying to work out how to arrive at the best results in the disputes I am working on. This is still the case, but in my new role, I have found myself thinking more generally about the courts' important work in adjudicating disputes and our role as barristers to make the system as effective as possible.
This wider perspective partly results from attending meetings of the Rules Committee late last year on the new High Court Rules that will aim to provide for more effective civil proceedings in the High Court. It will be important to support the new rules and the reinstatement of a Commercial List for mercantile disputes.
These steps are helpful, but much more work is needed if the civil justice system is to work effectively. The system provides for the rule of law that underpins an effective economic system. While criticism of cost and delay in the law goes back a long time (and I doubt that the law will ever be without criticism for this), I believe that we are now in a situation where much urgent work is needed.
Legal rules that are clear, certain and accessible are essential. But such rules have little value if citizens don't have access to them, access to representation and access to dispute resolution procedures where that is needed.
The rule of law underpins the security of transactions that are essential for our economy. It was an economist who said that the rule was the most important factor for prosperity. Resolving disputes by third party adjudication if necessary, according to established legal principles, is crucial for all economic undertakings, big or small. Effective administration of the law is essential if liberal democracies like ours are to thrive.
I will be making this point in my discussions with those responsible for our system and more publicly: we need to work more on, and invest more in, our civil justice system because it is intertwined with economic prosperity. If small or medium-sized businesses cannot access the law effectively because of cost or likely delay, their businesses are less likely to prosper and may fail.
Digital transformation is taking place in all areas of commerce and will transform public service provision; law and dispute resolution are no exception. It seems likely that systems will be available to determine disputes with limited or no human input. I think that we must grapple now with the many difficult questions raised by the current technological revolution and how much we allow technology to remove human decision making to promote efficiency. If state systems do not provide the services needed, there is a real risk that national systems of dispute resolution may be largely sidelined by private systems that provide for adjudication by technology.
I fear that we are many years behind and it is certainly time to try and catch up. While there is no quick fix and the answers are multi-faceted, we must argue for careful targeted investment in solutions.
For the present I think that as barristers we need to be as proactive as possible in improving the effectiveness of the current system. We need to challenge ourselves and the system generally to do better in delivering decisions for those who use it at reasonable cost and without undue delay. We should be seen to be working to bring this about.
We can do much to improve the processes by going back to basics; working out the best proportionate approach to cases and considering our responsibility to see that proceedings are conducted as efficiently and effectively as possible.
For example, a starting point might be to review our cases and consider how we can help the court advance each case efficiently and promptly. If we come up with answers, we should share them with other counsel in the case and with the court to move the case to a conclusion. This is basic and simply uses the case management processes to ask the court to consider and decide the points that count promptly. The approach usually requires cutting back the volume of written material, increasing focused oral argument, and agreeing and complying with stricter time limits for procedural steps and hearings. We can do a great deal to advance proceedings and encourage much more efficient processes in the court system. Let’s do this.
Training
This links to a central aspect of the Association's work – the provision of training to help members carry out their work as counsel as effectively and efficiently as possible. This will in turn help the system to function. Our work involves analysis of factual and legal argument and the clear expression of the relevant points in a case in a rational concise manner. Improvement and development in doing this are career-long objectives.
Oral and written advocacy can be developed by watching and learning from others, then carrying out the work, at the start under supervision with guidance, and after time, alone, conscious hopefully at all times of the need to provide your own sense check or second opinion. Training can help with these core skills at all levels, particularly where it is practical and close to the real thing.
The Masterclasses that we provide are one good example. Our next course is the "Mastering Advocacy - Cross-examination Workshop." It will be held on 14-15 March in Auckland. If you cannot attend this course, keep an eye on our website. The Education Committee produces other courses that focus on developing essential skills in our jobs in a rapidly changing environment.
A well-trained junior bar capable of providing legal services quickly and efficiently is an important part of the answer to access to justice in civil cases. Where the application of legal principles is important for certainty and predictability and good order, the answer is not the removal of lawyers. Rather, lawyers should be able to provide legal services at proportionate cost, and the courts should be able to adjudicate with reasonable speed.
While speaking of life-long education, our Annual Conference will be held in Auckland on 4-5 September this year. Please put the dates in your diaries. If you have any suggestions for the conference, please let us know.
I wish everyone an enjoyable 2025 and look forward to meeting during the year.
Paul David KC
