Where do you work, what’s your role?
I am a barrister in Auckland, near Britomart. I moved to the independent bar in July 2006 after working in a few boutique Auckland litigation firms, specialising in insurance work. Although I have been in a few chambers (most recently Quay Chambers), I moved into my own space overlooking the vibrant Britomart precinct in early 2017.
Where did you study?
The University of Canterbury with a few final Art History papers in Auckland.
Most people left Auckland for Otago and although I was approved for the halls of residence in Otago, I decided to go to Canterbury, which was fantastic. I graduated in 1995 with a BA/LLB (English literature and a bit of Classics).
What’s been your career to date?
I was admitted in 1995 and started work at Holmden Horrocks where I had persuaded the firm to consider a summer clerk role a few years before. I went on my OE in London in 1997 where I worked with a specialist (largely Kiwi) law firm in the City of London to acquire and lease the requisite land across the UK to set up the ‘One2One’ cellphone network.
In 1999 I joined Keegan Alexander to assist the inimitable Peter Spring with a large intellectual property/Anton Piller claim. We had a memorable two-week High Court trial with (now deceased) Robert Fardell QC, with Gerald (later Justice) Nation on the other side. From about that time, I started specialising in health and safety work, especially fatalities, which was quite unusual at the time.
In July 2006, after about 10 years of practice (which I had concluded was the minimum period of litigation experience required), I decided to make the slightly bold move to become a barrister. Sensibly, I drew my vision of life at the bar from such realistic portrayals as Rumpole of the Bailey, Boston Legal, the best scenes of the iconic Australian movie The Castle and, of course, Rake. If you are a lawyer and you have not watched Rake (the first series was in 2010), I would recommend it as essential viewing.
I enjoy my work even if it appears to be unrelenting. I am very lucky with an amazing group of loyal clients (insurers, large corporates and individuals) who have, over the years, come to be friends.
How long have you been involved with The Law Association committees and which committees have you worked with?
I joined the Health and Safety Law committee when it was established in 2015, after being approached to get involved as the deputy convenor. I became the convenor a few years ago after Fletcher Pilditch KC, (now considered a friend after we were on opposite sides of the large Crafar farms and Milkpride animal welfare case) stepped down.
Why is committee work important?
In my view, the legal profession plays an important role in this country in many ways. I think the many challenges of the covid-19 period reminded some of the profession and some of the public about the important roles we have in the administration of justice and the separation of powers, too.
The committee work of The Law Association is central to all it does, and The Law Association works very hard to make sure the committees can function efficiently and contribute in our various ways. The work is important because we pull together some of the most experienced people in certain areas, we review the practice of the law in that area, at the coal face, and we can be persuasive advocates for change, for continued improvement and for dialogue.
Some of the committees are even more commercial, producing important forms and precedents which are relied upon heavily by the profession and others.
How do The Law Association committees make a difference?
I suspect the true difference made will depend upon the composition and energy of the particular committee, the area of law and the profession’s needs.
I like to think The Law Association’s committees provide an important opportunity for the profession to get together and to speak with a relevant voice on important issues and topics. Those voices are often sought out in consultation phases, but the committees are proactive on important issues as they evolve, too. The committees are advocacy groups, educators and support groups – all at once.
How do you see the role of a committee convenor? What specific skills do you think a convenor needs?
Last winter, The Law Association held an educational evening for committee convenors. It focused on leadership skills, presentation styles and discussion.
I learned that as convenors we have similar views and a few similar challenges. It was revealing to see how similar some of the issues were, across committees. There is an organisational aspect, of course, to bring the committee together and to facilitate discussions, but the role also requires energy and planning to make sure everyone on the committee has a voice and an opportunity to be engaged.
There is a need to make sure the engagement of committee members is real and helpful and it does require a little bit of creative thinking and active listening. Being a convenor has been interesting and not without a few challenges, but I have enjoyed it especially with the group we have together.
What is your biggest frustration as a convenor?
I think I am very lucky with our committee. We have a knowledgeable, engaged and experienced committee with members from a mixture of backgrounds, from the WorkSafe NZ as the regulator, current and former Crown prosecutors, defence and insurance lawyers and barristers.
Thinking on a recent challenge, our depth of specialty can create problems. For example, several of us (including me) were involved with, or briefed in, the legal cases arising from the tragedy on Whakaari/ White Island on 9 December 2019. These events have been interesting, and the case saw overlaps with safety, outdoor adventure activities, regulatory prosecutions, diligent defence work, emergency management and the roles of coronial services and the police.
I confess it has been a bit frustrating that we, on the committee, have been slightly careful as the trial approached and as the decisions arose, not to offer too many collective thoughts on what had unfolded – as trial, sentencing and even appeal periods have been awaited. Personally, I declined calls from Sky News Australia to offer pre-trial thoughts on what might eventuate, given my role for Whakaari Management Ltd and the owners, for the first year of the investigation. The good news is that as these legal matters draw closer to a final conclusion, we will reflect on all that has unfolded and there is some relevant CPD in the works.
What’s been the most notable achievement or biggest focus of your committee over the past few years? Why was that important?
Reflecting on the last year or so, I am pleased with the external speakers we have invited to our meetings throughout the year. We were able to secure passionate and senior people from the main regulators: WorkSafe New Zealand, the Civil Aviation Authority and Maritime New Zealand. The dialogue with those making decisions (and those approving “enforceable undertakings”) was highly valuable.
We are also preparing to put forward a pilot of an expert witness program for HASANZ and NZISM experts. This course is aimed at providing experts with a real-world example of how evidence is offered in court in our jurisdiction. We hope to roll out that program in spring 2024.
Over the past year, has your committee made submissions on a parliamentary bill or any consultation paper?
Unlike many committees, we are rarely offered opportunities to offer submissions or to consult on proposed regulations and legislation. We did look to engage in that area back in 2015 but the nature and speed of new regulations has left few opportunities to offer submissions. Hopefully, when consultation is sought in any area, we might be afforded more realistic timeframes to review and respond to proposed changes. There was a trend in recent years to offer only limited consultation windows for proposed changes, which is quite unhelpful.
What would you say to anyone thinking of becoming involved in a Law Association committee?
I would encourage people to get involved and make the most of it for themselves and for the profession. The interface with other like-minded colleagues is always engaging but there is also a bit of heavy lifting to be done.
What’s the biggest issue facing your practice area at the moment? And how does that affect lawyers and their clients?
That question is challenging to answer and I am not sure there is one single issue facing our area of interest. There are issues about the modern profession, the best way to regulate our activities and there are ongoing funding challenges and hurdles across all areas of the law.
In our area, I think the quality of investigations and the decisions made by regulators about enforcement action, education and prosecutions warrants much more thought. Most offences here are of strict liability.
I agree that the purposes of the legislation are important. However, there is a temptation for many, including some judges, to apply a lens of hindsight to an accident and to ensure injured workers thereby receive access to a form of lump sum compensation/ reparation that is not necessarily available to other victims of “crime”. That is an uneasy juxtaposition for me, with pure criminal offences, convictions and an ACC regime which provides no fault compensation for all whilst removing litigation for lump sum personal injury claims.
I am noticing an increase in the briefing of lawyers by victims and families and that can sometimes seed division. Personally, I agree that employers and all PCBUs (persons conducting business or undertakings) must do all they can to identify and eliminate hazards at work, but perhaps we need to remember that the risks in life and work are sometimes impossible to avoid altogether.
What’s the best kept secret about The Law Association?
Perhaps, the people. He tangata.
I think there is a great opportunity for The Law Association to play an ever more important role in advocacy for the profession, by the profession. The breadth of knowledge and the depth of skill of those in The Law Association should be harnessed to strive (carefully) towards an ever-improving profession.
What is the biggest issue facing the legal profession right now?
Perhaps – a careful path towards 2050?
Have you done any media interviews/ provided any statements to the media in the past year as a committee convenor and spokesperson for ADLS/The Law Association?
No, but as I’ve said, our committee is often sought-out for comment in our area and the challenge can be that we are sometimes a little too close to be offering interviews on matters before the courts.
What is your vision for the legal profession in 2050?
Making sure we get our regulation right, that we look after our clients as well as possible and also ourselves, as lawyers. The work we do is rewarding and important. We should be very proud of what we do but it comes with an important set of duties. I hope we keep working to get the balance right for all of us.
What do you think The Law Association could do to improve its offering to members?
Interesting question. I would say to continue to recognise the hard work and the time volunteered by so many.
To find out more about the professional, collegiality, and networking opportunities associated with being involved in The Law Association committee work, contact Daniel.Conway@thelawassociation.nz or Moira.McFarland@thelawassociation.nz.
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