To: The SecretariatJustice and Electoral CommitteeSelect Committee OfficeParliamentary Buildings,Wellington 6011

Jack Hodder39 Central Terrace

Kelburn, Wellington 6012Phone: 498 4944 (work)

4

5

6

7

SUBMISSION ON LAWYERS AND CONVEYANCERS AMENDMENT BILL 2010:SENIOR (OR QUEEN'S) COUNSEL

In this submission, I respectfully contend that some of the provisions concerning Senior (orQueen's) Counsel in this Bill should be reconsidered and modified.

This submission is personal, and reflects my own opinions and experiences including, overadecade as a barrister sole and almost two decades as apartner in a large lawfirm. It has notbeen considered within, and does not represent any collective or other view of, ChapmanTripp, the lawfirm in which I practise as a litigation lawyer.

l made a submission on this topic when the Act (as it now is) was under consideration by thisCommittee in 2003−2004. As I retain essentially the same views, it seems convenient toattach that 3 October 2003 submission as Appendix A.

If possible, I seek to make an oral submission to the Committee to elaborate some aspects ofthe points in this written submission, including in the Appendices.

In briefest summary, I submit that:

(1) There are no real benefits to the public in having a two tier state sanctioned system oflitigation lawyers −that is, of a few selected "senior counsel" and the rest (the hugemajority) as (by comparative inference) "junior counsel". So the appointment of "silks"should cease. (Ideally, they would cease to be recognised as such in Court, but thatmay be a matter for the courts rather than for legislation.)

(2) If submission (1) is considered unacceptable, there should at least be no discriminationagainst litigation lawyers who practise in law firms (including as Crown prosecutors) infavour of those who choose to practise as barristers sole.

My submissions (1) and (2) were explained in some detail in my 3 October 2003 submission,and I invite Committee members to peruse Appendix A for some elaboration.

By way of additional points, I draw the attention of the Committee to the following matters:

(A) The USA operates a sophisticated legal system and profession with no state sanctionedbranding of some practitioners as in some way superior to others.

(B)

(C)

(D)

In England, the practice of appointing QCs from law firms has been in place since 1995.Indeed, one of the first such appointments is now a distinguished member of the UK'shighest court, Lord Collins of Mapesbury. A biography of Lord Collins is attached asAppendix B.

In Australia, in addition to the move away from "QC" to "SC", the appointment of silksfrom outside the separate Bar is recognised at the Federal level, for example GeorgeWitynski as a Senior Counsel in June of this year, (who was practising with theAustralian Government Solicitor) (see the article attached as Appendix C). Some QCshave also moved from practising as barristers sole to practising within a firm, forexample, David Gabally QC who became a partner in Madgwicks, a Melbourne firm, inFebruary of this year after becoming a Queen's Counsel in 1996. A profile of MrGalbally is attached as Appendix D.

In Canada, which (like New Zealand) has always had a "fused" profession, QCs havelong been appointed from law firms. For example, three current members of Canada'shighest court were such appointees before taking judicial office including senior puisnejustice Justice Binnie (see biography of Justice Binnie is attached as Appendix E).Further, the Quebec, Ontario and Federal governments have entirely ceased appointingQCs.

(E) The original reasons for preventing silks in New Zealand from being appointed from lawfirms (from 1915) were never cogently explained. (See the curious discussion in (1936)12 NZ Law Journal 93, attached as Appendix F.)

(F) Since the enactment of the current provisions of the Act, I have encountered none otherthan a few older QCs who have objected to the extension of eligibility to all litigationlawyers. Those objections tend to refer to barristers sole as the "independent bar"(rather than employing the accurate phrase, the "separate bar") and wrongly insinuatethat litigation lawyers in law firms are somehow not "independent". As the Committeewill appreciate, all lawyers are (and long have been) obliged to be "independent" notonly in the promotion of their clients' interests but also in their professionalresponsibilities to the court, an obligation now recorded in section 4(b) of the Lawyersand Conveyancers Act 2006.

For completeness, I should record that I am agnostic about whether silks are called "QC" or"SC". The essence of my submission is unaffected by the label, and none of it is motivatedby any view on the merits of monarchy or the prospects of republicanism in the New Zealandcontext.

Vlodderovember 2010

APPENDIX A: Submission of Jack Hodder to Justice and Electoral Committee onLawyers and Conveyancers Bill, 3 October 2003

To: The Justice and Electoral CommitteeParliament

Jack Hodder39 Central TerraceWellingtonPhone: 498 4944(work)

SUBMISSION ON THE LAWYERS AND CONVEYANCERS BILL: ABOLITION OF QUEEN'SCOUNSEL

INTRODUCTION

This submission addresses only one aspect of the Bill. It is organised under the followingheadings:

I. Introduction

1.2

1.3

1.4

1.5

ll.

Ill.

IV.

V.

Replacement of clauses 105 and 106

Reasons for abolishing rank of Queen's Counsel

The rule of law, and lawyers' independence

The position of existing holders of the rank.

Further, certain materials which may be of assistance to the Committee are attached (theseare listed on, and appear after, page 8).

This is a personal submission. It does not purport to represent the views of any otherperson. Nevertheless, I would be surprised if the broad thrust of this submission was notshared by the great majority of lawyers in New Zealand.

This is also a self−interested submission. As a senior litigation lawyer in one of the country'sleading law firms, and currently prohibited from seeking the status of Queen's Counsel,Iwould expect to benefit from a "level playing field" (ie, the removal of the "QC" brand fromthose with whom I compete to lead important and interesting major litigation) if the thrust ofthis submission were incorporated into legislation.

l am making this submission because, in my opinion, based on more than 25 years oflitigation experience and legal commentary, the retention of the rank of Queen's Counsel (orany partial replacement with Senior Counsel) damages the credibility of our profession. Itcan only be removed by legislation, and the Committee provides the proper forum for suchlegislation to be considered.

ll. REPLACEMENT OF CLAUSES 105 AND 106

2.1

2.2

My primary submission is that clauses 105 (Senior Counsel) and 106 (Queen's Counsel) beomitted from the Bill and replaced with the following:

105A. Equal status and precedence for practising lawyers

(1) All courts and tribunals in New Zealand shall treat all persons practising as a lawyer as havingequal status and precedence.

(2) As from the commencement of this section−

(a) no person may be appointed as a Queen's Counsel or King's Counsel for New Zealand; and

(b) the prerogative right or power of the Crown to appoint persons as Queen's Counsel or King'sCounsel for New Zealand ceases to have effect as part of the law of New Zealand.

(3) As from the commencement of this section, any person previously appointed as a Queen'sCounsel or King's Counsel for New Zealand and practising as a lawyer must not use in relation tohimself or herself, in New Zealand, the words "Queen's Counsel" or "King's Counsel" or theabbreviations "QC" or "KC".

(4) in this section, "practising as a lawyer" means being available to accept instructions to provideadvice or representation to a client or an employer of the lawyer.

As will be evident to the Committee, the proposed section 105A departs from clauses 105and 106 as introduced in:

(1) placing primary emphasis on the equal status and precedence of all practisinglawyers;

(2) consistently with (1), prohibiting practising lawyers from using the label "Queen'sCounsel" or abbreviation "QC" in New Zealand (this would not apply to, for example,retired judges who act as arbitrators or undertake commission of inquiry); and

(3) also consistently with (1), omitting provision for the appointment of "Senior Counsel".

2.3 With one exception, I have not considered whether any consequential legislativeamendments would be required to accompany the proposed section 105A.

2.4 The exception relates to contracts where disputes are to be resolved by the giving of anopinion by a Queen's Counsel. I am aware that such contracts exist, but have no sense ofhow widespread they may be. In any event, a legislative clause to deal with these wouldlook to provide a substitute with a focus on the experience and relevant skill presumed to besought by the contract drafter. An example might be as follows:

Where any contract or written instrurnent provides for any difference to be resolved by the giving of anopinion by a Queen's Counsel or King's Counsel, any such difference can be resolved by the opinionof any practising lawyer who

(a) was appointed as a Queen's Counsel or King's Counsel before the commencement of thissection, or

lIl.

3.1

3.2

3.3

(b) has not less than 14 years practising experience and has expertise relevant to theissues involved in the difference.

REASONS FOR ABOLISHING RANK OF QUEEN'S COUNSEL

As evident in the proposed section 105A, it is my submission that the appropriate startingpoint in terms of status and precedence in the New Zealand legal profession is the notion ofequality. Every litigant and every practising lawyer ought to be able to participate inlitigation without any suspicion that they might have fared better if only a Queen's Counselhad not been retained on the other side.

This is not a submission that all lawyers are equal in skills and experience. But assessingthose skills and the relevant experience, and trading off those against costs, is the functionof a market, not of Government or judicial patronage.

In this context, I submit that the following specific reasons go to justify the abolition of therank of Queen's Counsel (and the avoidance of a substitute Senior Counsel rank) in NewZealand:

(1) The rank involves the grant of an archaic State patronage to the commercialadvantage of a limited number of competitors in the legal services market. Thisendorsement follows unknown and non−accountable deliberations, and is unlike anyother available in the professional services markets or any other field of activity inNew Zealand.

(2)

(3)

(4)

(5)

(6)

(7)

The rank is of no assistance in maintaining or enhancing professional standards in thepractising legal profession.

The rank is not well understood by the public. Indeed, it implies −quite incorrectly−that the beneficiaries of the rank are able or entitled to advise or speak on any legalmatters with greater authority than others.

The rank creates an unnecessary and unhelpful division between those few favouredwith the rank and the rest of the profession who are implicitly (and sometimesexplicitly) relegated to "junior" rank.

For nearly 90 years only a fraction of New Zealand's advocates have been eligible toapply for the rank − the vast majority being (and having been) practising in our fusedprofession as barristers and solicitors.

Similarly, the rank has not been available to leading lawyers who practise in areasother than advocacy (with minimal exceptions), and the narrow information baserelied on for the selection process does not extend to such lawyers.

The rank represents characteristics of the legal profession of England and of the pastwhich are damaging to the New Zealand profession of the 21st century: adherence to

archaisms; retention of elitist divisions; secret procedures; and a mistrust of marketforces.

4

(8)

(9)

The rank bears no relation to its ancient English origins, where it indicated barristersselected to assist the Attorney−General to undertake the Crown's legal business.

In my observation, the rank is not necessarily reliable as an indicator of skill as anadvocate, it is my experience that, while the current leading QCs are among theleading advocates in the country, there are advocates in law firms who are theirequals; and that there are QCs who are at best marginal candidates for any "leadingadvocates" list.

To avoid misunderstandings, I should add that my submission:

> is not intended to damage the separate Bar − this has its own attractions, but, in anyevent, is not entitled to be "propped up" (if that is what occurs) by the rank of Queen'sCounsel;

> is not intended to enhance the position of large firms − these will rise or fall on theirability to manage client demands and professional responsibilities;

> is not in any way related to the "republican" debate (as will be appreciated, in mysubmission the Senior Counsel rank is at least as objectionable as the Queen'sCounsel rank).

4.2

THE RULE OF LAW, AND LAWYERS' INDEPENDENCE

In the interests of brevity, I will not elaborate on all the reasons for abolition advanced inparagraph 3.3, above. Rather, I set out below my "conservative" case for abolition of therank of Queen's Counsel. That case is based on the damage that an artificial rank, such asQueen's Counsel, does to the public perception of (and confidence in) the rule of law andthe independence of the legal profession as a whole.

In my submission, the Bill properly emphasises − in clause 4 (albeit in a manner capable ofimprovement) − the fundamental obligations of lawyers, including the upholding of the ruleof law and the maintenance of independence in providing legal services to clients. Thisapplies to in−house corporate counsel, government lawyers, commercial lawyers andadvocates.

4.3

4.4

4.5

4.6

4.7

4.8

Ours is an era when the rule of law is a primary ingredient in maintaining the achievementsof a civil society. This makes more important the fundamental obligations of all members ofthe legal profession.

The rule of law has various shades of meaning. In the present context, these include thenotion that disputes will be determined by impartial judges, after a full and fair hearing,according to established legal rules. The Crown is regularly a party to criminal and civilcases, but the rule of law implies that it has no advantages at trial over any other party.

The rank of Queen's Counsel does not fit well this notion. It is the State apparatus,including for these purposes the Chief Justice, that selects and appoints Queen's Counsel.Likewise, a majority of High Court judges will be appointed (by essentially the same Stateapparatus) from the ranks of Queen's Counsel. In such circumstances, any losing party(having not retained a QC) may feel disadvantaged by the fact that the other side hasretained a QC. Such a perception may not be well founded, but it simply should not bepermitted to arise.

This aspect of perception −that a State−branded lawyer may have an advantage overother lawyers− is antithetical to the rule of law. It goes to explain why neither theexecutive branch of government (the Attorney−General and the Solicitor−General) nor thejudicial branch (the Chief Justice or others) should be involved in conferring a special statusor rank on any practising lawyer.

The related point is the distortion of the market for legal services. Those with the rank ofQueen's Counsel undoubtedly benefit from that rank. On the basis of skill and experience,most of those would not be materially disadvantaged in practising law if the rank were to beabolished. But in the legal profession, as in any other, a State conferred endorsement must(and does) distort the market.

On "independence", this quality is at the heart of the ethics of the legal profession. In everycase, a lawyer owes an obligation to provide independent advice − or, if they cannot do so,to refer the client elsewhere. In this context, "independent" means free from the influence of

other considerations, including public criticism, the contrary opinions of other lawyers(including judges), the interests of other persons, and the lawyer's own interests.

4.9 l emphasise that, as clause 4 of the Bill recognises, independence is expected of alllawyers. There are no sensible shades of independence. In particular, it is quite wrong tosuggest (as some at the separate bar have suggested in the past) that barristers sole−and especially Queen's Counsel − are "more independent" than those in law firms. Inevery case an advocate must avoid conflicts of interest and, in litigation, may well be (inpart) defending previous advice on the points at issue. In every case an advocate owesduties to the court or tribunal before which they are appearing. The scope of potentialconflict issues expands in a lawfirm but this does not erode the actual independence ofthose practising in such firms.

4.10 It may be relevant to note that the International Bar Association's Code of Ethics providesabenchmark which is consistent with the professional obligations of all New Zealand lawyers:see Attachment "G". It is designed to apply to lawyers from all jurisdictions, including thosewhere no "two tier" system of lawyers is recognised − notably in North America.

5.2

5.3

5.4

THE POSITION OF EXISTING HOLDERS OF THE RANK

For the reasons outlined earlier, I submit that the case against the retention of the rank ofQueen's Counsel is unanswerable. The only question of substance is whether it would beunfairly prejudicial to existing holders to remove the practising benefits of the rank bylegislation. In my submission, the greater public interest in abolition should prevail withoutdelay, as no transitional period of acceptably short duration is available. For example, oneof the 2003 appointees was aged 40, and may well anticipate another two or three decadesof actively practising law.

The use of the rank for professional advantage distinguishes the position of Queen'sCounsel from those who have retained the earlier style of honours − such as knighthoods.Insofar as the rank has an honorific quality, that would be preserved by the proposedsection 105A(3) and (4). Thus a Queen's Counsel on retirement, or on retirement asajudge, would be entitled to use the rank, if that were their preference. What section 105Awould prevent would be the use of the rank for professional advantage in New Zealand.

It may be said that the rank of Queen's Counsel is in the nature of a property right, andshould not be removed without compensation. While there may be much to be said forbetter protection of property rights, the rank is not one which has been acquired for value;and there are modern precedents for removal of genuine property rights withoutcompensation (for example, in relation to owners of native trees, and under the West CoastAccord).

In the end, these are questions of public policy, balancing a range of considerations. In mysubmission, the balance favours prompt abolition, with no savings, in relation to practisingadvantage. As was well said in the UK discussion paper of July 2003 (see Attachment "C"),para 70, retention of the rank:

would also perpetuate an unfair advantage. That inequality would remain for a long − perhaps anunacceptably long − time. Because it is an appointment for life, the value of appointment as QCwould be likely to diminish over time and in the face of newer schemes. And it might seriously confuse

many customers, particularly those not used to the current structure of the legal profession, for at leastthe medium term.

Jack Hodder3 October 2003

A,

Attachments (and commentary)

(UK) Royal Commission on Legal Services (Cmnd 7648, October 1979), pp 465−471.

B,

The Benson Report was written by a committee that included one former QC (then ajudge)and one practising QC. On the retention of QCs, the report is superficial, It does notgrapple effectively with the "one side will need to match the other" point (para 33.83). Andit appears to have given much weight to QCs as a training ground for High Court judges. InNew Zealand there are many past and present examples of fine High Court judges whohave not practised as QCs.

(UK) The Guardian, 3 April 2002: Clare Dyer, "A law unto themselves", pp 14−15.

C,

The Dyer article articulates, per David Pannick, the point that the rank of Queen's Counselcannot be rationally justified on any zero−based review. There is also reference to theOffice of Fair Trading's comments on the anti−competitive aspects of the rank, and the lackof countervailing benefits.

(UK) Department for Constitution Affairs, Constitutional Reform: The Future of Queen'sCounsel (July 2003), pp 19−29.

D,

The DCA discussion paper is up−to−date and cogent. Among other things, it records thatthe Law Society (representing 90,000 solicitors) has, since 1999, declined to participate inthe annual QC consultation round because "the designation is a mark of patronage that isin appropriate in the modern age": para 42. There is also relevant discussion of theposition of existing QCs: paras 67−70.

(AUST) Teece, Law and Conduct of the Legal Profession in New South Wales (2nd ed, 1963),pp 81−83.

E.

The Teece text may be somewhat out of date, but correctly describes the rank as a "dignityconferred by the Crown". It also refers to the absurdities of seating etiquettes at the bartable.

(AUST) Australian Financial Review, 8 February 2002: Kate Marshall, "Silks stick with QCbrand value".

F.

The Marshall article serves to confirm that the "QC brand" is a very valuable professionaladvantage for those who hold it. And that "SC" is likely to be perceived as an inferior statusfor many years.

(CAN) The Lawyers Weekly, 22 February 2002: Thomas Claridge, "Despite controversy,7Canadian provinces still grants QCs".

The Claridge article confirms that in Canada QCs in lawfirms are usual, but that the rankhas been abandoned by the Federal Government (since 1994) and in the two largestprovinces − Ontario (since 1985) and Quebec (since 1976).

G. International Bar Association, International Code of Ethics (1988).

APPENDIX B: Biography of Rt Hon. Lord Collins of Mapesbury, Justice of the SupremeCourt

Lord Collins was appointed a Lord of Appeal in Ordinary in 2009.

Lord Collins read law at Cambridge University, and subsequently took a graduate degree ininternational law at Columbia University, New York. He qualified as a solicitor in 1968, andbecame a partner in Herbert Smith & Co in the City of London in 1971, specialising ininternational law.

In 1997 he became one of the first two solicitors to be appointed practising Queen's Counsel,and he was appointed a Deputy High Court judge in the same year. In 2000 he was the firstsolicitor to be appointed to the High Court bench (Chancery Division) direct from privatepractice, and in 2007 the first former solicitor to be appointed to the Court of Appeal. He wasappointed as a Lord of Appeal in Ordinary in April 2009.

Since 1987 he has been the general editor of Dicey and Morris (now Dicey, Morris andCollins), on the Conflict of Laws, the leading work in that field, and he is the author ofnumerous books and articles on international law. Since 1975 he has been a Fellow ofWolfson College, Cambridge, and since 1982 a visiting professor at Queen Mary, Universityof London.

In 1994 he was awarded the degree of Doctor of Laws by Cambridge University, and in thesame year he was elected a Fellow of the British Academy. Since 1989 he has been anelected member of the Institut de Droit International. He is an honorary fellow of DowningCollege, Cambridge.

(Obtained from Supreme Court (UK): www.supremecourt.gov.uklabout/biographies.html)

APPENDIX C: Article from The Australian, 9 July 2010, p. 30

30 LEGAL AFFAIRS I"EA

It's the last you'llQC of that lot

PREJUDICECllRIS MERRIT'!

INamovethatisheavy withsymbolism, thefederalgovernment has quietly stoppedcallingitsnewsilks"Queen' s"counsel and is instead callingthem senior counseL

The change came to lightyesterday in thelastlineofapress release in which RobertMcClelland named GeorgeWitynski as the commonwealth'sfirst senior counseL

Thismeans there has been abig change in thinkingsinceMarch 2007. when formerLiberal attorney−general PhilipRuddock appoin ted twocommonwealth silks and gavethem both thetitieofQC

Like Witynski,both those silks− David Charles Bennett andThomasHowe−werefrom theAustralian GovernmentSolicitor's Office. Soit looks likeBennett and Howe will have tosharethe title as thecommonwealth'slastQC,

The appointment ofcommonwealth silks is rareWit3.mski istbefirst since Laborcameto office.

The change, of course. waslong overdue. Most states did itlong ago.

The glory for helping rid theprofession of theQC,anachronism rests mostly withMcClelland. Itwas his decision.

There wasnohand−wringing.no agonisingabout historicallinks toanother country,justaquick decision

While the policy changecamefrom McClelland,itlooks asthough Julia Gillard is also duesome glory.

Federally. the process ofappointing new silks is simple:theattorney−general, afterconsultation with theprimeminister, recommendscandidates to the governor−general.

And it was thisprimeminister,not the last one, that McClellandconsulted about the change

It then went to Governor−General Quentin Bryce− the

Queen's representative−whohad the honour of officiallykilling off the title ofcommonwealth QC.

THE Law Council ofAustraliaisabout toreceiveaharshlesson inthe dangersofreaching too far.

The revoltby the consumerlobby that is outlined today inthese pageshasprobably crippledthe Law Council's goal ofcontrolling the planned nationalregulator of the legal profession.

After today, it will bepolitically impossible for anygovernment to accept that theLaw Councif s plan should bereflected in the design of the newregulatory system.

Oneofthemain reasonsforproceedingwith thenationalsystem is to give consumers oflegalservices abetter deal.McClellandhas spelled this outrepeatedly.

So it is hard to imagine howthe Attorney−Generalandhisstate counterparts could alignthemselves with anewsystemthatincludes elementsthathavealready been rejected by theconsumer lobby.

To the realists inside the LawCouncil, arevoltby the consumerlobby should have come as nosurprise.

What else could they do whenconfronted with suggestionsthatwauld mean turning back theclock to the days when the onlypeopleregulatinglawvers wereother lawyers and the conceptofconsumer rights had not beeninvented.

Remember the Law Councilwants nominees oftheprofessionand thejudiciary to control theplanned national legal servicesboard− ltalso wants to destroy theplanned national legalombudsman and vesttheombudsman's powers in theboard. which would be controlledby thelawyersandjudges.

McClelland, quite properly.has asked theregulatorytaskforce designing the newsystem to consult on the LawCouncil's suggestions. If thetaskforcedoesitsjobproperly, itshould soon be clear that the LawCouncifsplanisunworkable.

It would requirethegovernments of those states thatalready have powerful legalservices commissioners tosubject those commissioners totheviews ofthosewhoanswer tothe legal profession.

It would mean the end oftheco−regulatory system in NSWand Victoria in which theprofession and independentstatutory officers both havearole. Under the Law Council'splan, thesestatutory officerswould do the bidding of anorganisation controlled by theprofession and thejudiciary

APPENDIX D: Profile of David Galbally QC

MERITAS'~t AW f FM5 'A'Gī.Dalf

Peau Kennedy

Anudo Cunti

Pea:t t−rm:,nord

Debra Junl

David Galbally QC

Lorna Gelbei!

Rr k Goldl,erg

im Greenal

Graeme Le ,'y

f'l ch:M Nt,rbury

[−u−nom To,maras

Chan ana −ar CJnerd).k

/ H

Practice Areas:+mu~ e ~ef te~:P :e ~,a;ener;' a*:EuI:err Je+:erUOe :r ancN .teResoat!

One of Melbournes most resrected Je,gal author~es. Da. id joined Mtadc ... ~cks asapartner in January 2010 appainted one of Her 1,!ajestys Counsel in t99~. Ca .d hasworked on some of A.ustralia s mest tign c−ofile and complex corporate and crimlnal

cases

Passo,ssine renow'ned expertlse in commercial lrtigaten and escute resolution Da, ,d

s regularl−, called ucon te prc−side commen! and expert e~inion across a broad rangeoftoc~,s irlctuding corporate covernance human nghts pruacy and superannuationre9uiatton

MIe PraCtice inCIUdes:

• Prc dng adu Ice on corporate co,mphance, as +'. ell as commercial and tra:;epractices

• Representing csmpanies and inde duals in ~siC inquiries and public examinationsb:, hauidators

Representing indi,iduals in casas in',,eM ing breaches of the Corcerations La,'. andincome −ax Act

i ]nvohement ,,nth medlahan negotlations and a~mmistratr,'e and oscipllnar.tribunala

Pso.rjeg corporate ad:ace to some si Austrahes targest apostmg c~ute andgavernin§ bodies. as ,',ail as entertainmentcorparationa

Ca',id ~s in~,al,,ed in sporting campany and charity administration and Chairman cftheboaTd of an industry superannuation iund. Da, 4 aiso sns on the heard oia puebel;,

listed clean energy company is /Iee President of Alzheimers Australia VicandChairman of the CSntre for Harmene Research aithe Chridren s Hospaal

~a,12s une,'a'saring comrnrimentto his chents and passion for the ta,' means he isboth respected. and grean?, :alued by his clients

Contact

DavJd Sail:all! QCPariner

−21 3 ~242 a772fr:: _ Ca~sGaPeal,

APPENDIX E: Biography of Justice William Ian Corneil Binnie

Born in Montreal, Quebec, on April 14, 1939, William lan Corneil Binnie is the son of JamesCorneil and Phyllis (Mackenzie) Binnie. He married Susan Strickland on May 28, 1965. Thecouple have four children: Daniel, Matthew, Alexandra and Max. lan Binnie received a B.A.from McGill University in 1960, an LL.B. from Cambridge University in 1963, and an LL.M. in1988. He was the first Canadian to be elected President of the Cambridge Union Society. Heobtained an LL.B. from the University of Toronto in 1965. In 2001, he received honorarydoctorates of law from the Law Society of Upper Canada and McGill University

Justice Binnie was called to the English Bar in 1966, the Ontario Bar in 1967 and the YukonTerritory Bar in 1986. He was admitted to practice before the International Court of Justice in1984 and obtained occasional calls to the Bars of British Columbia, Alberta, Saskatchewan,Manitoba and Newfoundland.

He practised litigation at Wright & McTaggart and its successor firms until 1982, during whichtime he acted as legal counsel to the Government of Tanzania from 1970 to 1971. From 1982to 1986, he was Associate Deputy Minister of Justice for Canada, and he representedCanada before the International Court of Justice against the United States in the Gulf ofMaine dispute in 1984. From 1986 to 1998, he was a senior partner at McCarthy Tētrault. In1990, he acted as Special Parliamentary Counsel to the Joint Committee of the Senate andthe House of Commons on the Meech Lake Accord, and in 1991, he again representedCanada before an international tribunal, against France, in the Saint−Pierre & Miquelonmaritime boundary dispute. He appeared as counsel before the Supreme Court of Canada inmany leading constitutional, civil and, occasionally, criminal cases. He also served as anadvisor to the Government of Newfoundland on constitutional amendments to the Terms ofUnion, and as a part−time lecturer on aboriginal rights at Osgoode Hall Law School from 1975to 1979, in addition to serving as a lecturer for the Law Society of Upper Canada, theCanadian Bar Association, The Advocates' Society and other professional associations. Hewas elected a Commissioner of the International Commission of Jurists in April 2003 and alsochaired the Rhodes Scholarship Selection Committee from 1999 to 2004. He has authorednumerous publications. In 1993, he was elected a Fellow of the American College of TrialLawyers. He is a member of the Middle Temple Inns of Court (England) and an honorarymember of the Commercial Bar Association (U.K.) and was Honorary Colonel of 426Squadron, 8 Wing (Trenton) from 2004 to 2007.

Justice Binnie was appointed Queen's Counsel (Ontario) in 1979. He was appointed to theSupreme Court of Canada on January 8, 1998.

(Obtained from Supreme Court of Canada − www.scc−csc.gc.ca)

APPENDIX F: (1936) 12 NZ Law Joumal 93−94

New Zealand

Incorporating " Butter worth's Fortnightly Notes."

1936

VOLUME XII.January 21, 1936, to December 15, 1936

WELLINGTON, (N.Z.)

Butterworth & Co. (Aus.) Ltd.49 Ballance Street

AUCKLAND, N.Z. : BRITISH CHAMBERs, 35 HIGH STREET.SYDNEY, N.S.W. : 8 0'CONNELL STREET.MELBOURNE, VIO. : 499 LITTLE COLLINS STREET.

LONDON : BUTTERWORTH & CO. (PUBLISHERS) LTD., BELL YARD,TEMPI.E B AR.

CALCUTTAMADRAS BUTTERWORTH & CO. (INDIA) LTD.

BOMBAY −TORONTO : BUTTERWORTH & CO. (CANADA) LTD.DURBAN : BUT~TERWORTH & C0. (AFRICA) LTD.

193 6.

May 5, 1936 New Zealand Law Journal. 93

welcome it : but he would not like a mere formalCommittee to be set up, but an enthusiastic and activeone ; and he would welcome all co−operation, whateverbe the form.THE SOLiciToR−GENERAL, MR. H. H. CoRnish, K.C..

thought it ought to be ma.de clear that reform of thelaw was going on all the time, even though no individualmember of the profession brought it up. For instance,last year the last Government passed the TrusteeAmendment Act, providing that some non−charitableand invalid purpose included in a will should not beconstrued to avoid a charitable intention. EvenGovernment Departments thought of reforms. Thespeaker knew of suggestions made by Mr. A. E. CURRIE,some of which had been carried out. The ATTonw~Y−GENERAL had not given the whole of the matter : hehad not told of the work he had been doing. In thelast three months he had been very busy indeed. Hehad had a fully qualified barrister, a Master of Laws,on the task all the time.

Inquiries had been made with regard to the questionof the prerogatives of the Crown, and there was abulky file in the Crown Law Office which was now beingsifted.

THE Sor101ToR−GENERAL did not think a BritishDominion should go ahead faster than England herselfwas doing. (Cries of " Yes," " Yes," " Of course weshould.") He asked if a colonial Legislature shouldbe the first to throw away any of the Crown's preroga−tives. He referred to a recent case in which Mr. Simwanted discovery. It was a proper case, and he gotdiscovery as soon as the matter was referred to theCrown Law Office. The ATTORNEY−GENERAL and theCrown Law Department would always be found sympa−thetic, so the speaker questioned whether the pre−rogatives of the Crown should be discarded. In themeantime, use would be made of whatever might befound in the file he had mentioned likely to provehelpfuL

MR. W. J. Sim (Christchurch), in reply, thanked theATTORNE]Y −GENERAL and members of the professionfor their kindly reception of his paper. He had noticedwith the greatest pleasure that the ATTORNEY−GENERALsaid that it was a matter for work, and if that was thekey−note he thought he might have achieved something.The time would come when the ATTORNEY−GENERALwould appreciate the weight and authority of a first−class Committee behind him.

THE PRESIDENT said he would not close the discussionon the point of a Committee just then. He suggestedthat Mr. Snv1, Mr. WmsnT, and Mr. 0'R~as5" shoulddraft a suitable motion to be submitted to theConference.

Subsequently, Mr SIM reported to the Conference,and read the following motion which had been drawnup by the sub−Committee :

That this Conference recommends the establishment ofa Standing Committee along the lines of the Law RevisionCommittee in England, to consider and report on allmatters committed to it relating to the Administration ofJustice and the Reform of the Law ; and the Honourablethe Attorney−General be asked to bring before the Honour−able the Acting Chief Justice the proceedings of theConference and to confer with him on the establishmentof the above Committee.

MR. SI~ formally moved the resolution, which wasput to the Conference and carried unanimously.

T.aE PRESIDENT at this stage vacated the Chair,which was taken by Mr. A. N. HAss1TT for the pre−sentment and discussion of the next remit.

THE SECOND REMIT.

Amendment of the King's Counsel Rules.

MR. D. PERRY (Wellington) proposed the followingremit :−

That the present rules preventing King's Counselfrom practising as Solicitors should be abolished.

He said that he felt some diffidence in proposingthis remit, because it seemed to him, coming as it didat that stage of the Conference, that they were descend−ing from a matter of great general importance to asmall matter which merely affected themselves. How−ever, this remit had been put forward by the WellingtonDistrict Law Society because it was felt that the matterwas one of some importance to members of the pro−fession, and there was a very sharp division of opinionon the question. When the Law Practitioners Amend−ment Act, 1935, was first drafted, it contained a pro−vision abolishing the existing rule which prevented King'sCounsel practising as solicitors or in partnership. Thatprovision was approved by the Council of the NewZealand Law Society before being submitted to theGovernment. The Rt. Hon. Mr. Forbes, then Attorney−General, indicated that he was not prepared to sponsorthe Bill if that provision remained in it. The matterwas further considered, and the New Zealand LawSociety asked for the views of the District Societies.At Wellington, there was sharp conflict of opinion ;and it was felt that no steps should be decided upon tillthe profession had had an opportunity of discussingit.

MR. PERRY went on to say that although the remitwas in his name he did not agree with it. The argu−ments in its favour could be summarized as follows :That the two branches of the profession were notseparated in this country, and, while that was so, therewas no reason why a barrister, because he also prac−tised as a solicitor, should be prevented from applyingfor the patent of King's Counsel on that account. Therewere, no doubt, many arguments against that view.It might lead to the situation in Canada, where no lessthan five King's Counsel were all members of one firm.

The speaker interestingly recalled that the presentstatutory rule which prevented King's Counsel frompractising as solicitors had been enacted in 1915, and thematter had been the subject of considerable prior dis−cussion. It was discussed at considerable length in1913, and, as a result, the principle of the Bill whichbecame law hi 1915 was then approved. Circumstancesmight have changed since 1913 ; but Mr. PERRY said,speaking personally and against the remit he wassupposed to be moving, he could not see any essentialchange in the circumstances which would justify a changein the rule.

MR. W. H. CUNNINGHAM (Wellington) seconded theremit pro forma. He explained that this remit hadbeen sent forward by the Wellington Society, as it hadbeen felt that it affected members of the professionpersonally rather than the profession as a whole. Asthat Society was so divided in its opinion, he hadsuggested that it would be a welcome subject for dis−cussion by the Conference ; but, personally, he wasagainst the remit. Perhaps it did not affect practi−tioners in country towns, but it was a matter for seriousconsideration for those practising in the main centres.

94 New Zealand Law Journal. ~ay 5, 1936

His own experience on going to Wellington was thatit was a great advantage to have senior members freefrom partnership ties. Opinions could be obtainedwithout any embarrassments, and that was one of theoutstanding advantages of the present system. Onlymembers of the Bar who had reached eminence andcould afford it took silk, and he for one should be verysorry to see the present rule abolished.

MR. P. J. O'REGAN (Wellington) said that uncon−ditionally he opposed the remit. He thought thepresent situation might be called, not inaptly, a con°cordat ; and it would be very unwise for the order ofKing's Counsel to reopen the question. He wassurprised that this remit should have come from Wel−lington, because he took leave to say that it did notreflect the intelligence of the rank and file in Wellington.

The speaker referred to the history of the rule,beginning with an amendment to Mr. Hind marsh'sBill in 1924, which was brought into the Upper Houseby Sir Francis Bell. He (MR. O'REsA~) thought hewas quite wrong in this connection. A general meetingof the Wellington Society was convened for the expresspurpose of considering the proposed amendmentemanating from Sir Francis Bell, and a great majorityvoted against the amendment. Now it had beenreopened after a general meeting of the profession inWellington : he almost said a " stop−work meeting ofthe union." It would be exceedingly unwise to endorsethis remit.

MR. H. F. O'LEARY, K.C. (Wellington), from the Hall,said he thought the history in connection with thepresent position was something which the Conferenceshould know. King's Counsel were first appointed in1907 : four in Wellington and two in each of the othercentres. They were, of course, permitted to practiseas barristers and solicitors. In 19!3 a meeting wascalled in Wellington to discuss the matter of juniorbriefs handed out by King's Counsel who then favouredeither one particular junior or what were called" freezing juniors," those called late at night by a King'sCounsel's clerk who would say : " Mr. X. has a casein Court to−morrow, would you go over and sit withhim." There was a fee commensurate with the workinvolved. A meeting was held in Messrs. Bell, Gully,and Co.'s office where it was suggested that, followingthe practice in England, fees for juniors should beput on a definite basis, At this meeting the discussiontook a wider turn, and certain older counsel presenttook exception to King's Counse! practising as solicitorsat all. They said that if a person was embarking onlitigation and contemplated briefing a King's Counsel,he would naturally go to the King's Counsel's firm forthe solicitor work. This led to the meeting to whichMR. PERRY referred, and which was held in Wellington.A resolution was passed that the practice of King'sCounsel practising as solicitors should not be continued.Mr. Hindmarsh, a practitioner who was also a Labourmember for one of the Wellington seats, was at thismeeting. Then in 1915 a Bill was before the House,and, in the course of a debate, Mr. Hindmarsh took theopportunity to propose an amendment to carry intoeffect the resolution of 1913. Last year, when the LawPr actitioner s Amendment Bill was before Parliament,it was suggested that the 1915 amendment should berepealed and the old rule restored ; and that matterwas discussed by the Statutes Revision Committee.As President of the New Zealand Law Society, thespeaker had sent out notices of this to all District Socie−ties, and asked them to discuss the matter ,and send

their views to him. Many Societies did not send intheir views, others did ; and the great majority wereagainst the amendment. The matter came before theWellington District Society, andlMr. CUNNINGHAM sug−gested that it was a matter which might well go beforethe Conference. That was an explanation which mighthelp the Conference.

There being no further discussion, MR. HAss1TT putthe motion to the meeting. It was declared lost onthe voices.

MR. HAsaITT then vacated the Chair, a,nd MR.O'LEARY resumed charge of the Conference.

The Proper Attire of Barristers.A Dunedin Remit.

M~. A. N. HAcorro (Dunedin) moved the followingremit :

That it is desirable that the proper attire of barristersat the outer Bar be defined.

He said it was indubitable that the dress of outerbarristers should be defined, as there was no regulationin the matter which was left to custom, unlike theforensic attire of King's Counsel which was defined.The matter affected the dignity of the profession, and,even though the subject might give rise to some degreeof levity, he did not mind, as his submission was thatit was desirable that, if there were a proper gown, itshould be defined. If necessary, the matter might bereferred to the New Zealand Law Society with theobject of having a Committee set up to give effect tothe proposal. The speaker said the remit had beenplaced on the Conference agenda because a letter hadappeared in the Now ZEALA~n LAw JoURNAL pressingfor information on this matter, and he was impressedby the fact that there was not one reply. Everyoneknew, of course, the general rule that a barrister had−to wear a wig and gown, a dark coat, and bands ; butthat was too general. What was the proper size of thebands ? he asked. Some wore them long, some worethem short, others had them starched and many leftthem limp. The late Mr. Justice Alpers had somethingto say about it in his book, Cheerful Yesterdays :

I have never been able to understand why so many counselin New Zealand find it too much trouble to keep a morning−coat in their robing−locker for use in Court.

But many could not afford to keep a morning−coat intheir lockers for use in Court. Then he said :

They sometimes appear ina dark blue or brown sac suit. Thatis bad. But infinitely worse is the slovenly habit one noticesin some Courts of compromising with the colour conventionby wearing a black alpaca coat under their gowns.

Mr. Justice Byles intimated that he could derive nopleasure at all from seeing the ends of a pair of graytrousers peeping out from below the gown, and thespeaker at least twice had seen a very honoured Judgerefuse to see counsel who appeared improperly robed.The English Bar Council had done something towardwhat was wanted in New Zealand ; but their decision,made in 1922, affected women barristers only. Itwould be a simple matter for an appropriate Committeeof the New Zealand Law Society to lay down rulesthat could do no harm, and might do a great deal ofgood and provide authoritative information for many