Decision Highlights Problems with Court Reporting Page 51

ISSUE 921 · September 2018

Decision highlights problems with court reporting Page 51

What has been Responsible Does the legal Let's have changing in the communication profession some fun out largest law firms? on a matter of have cultural there public interest capability?

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6 · From The Law Society Update 38 · The Autumn Tree appeal – The 7 · New Zealand Law Society Court of Appeal clarifies important principles of company Letter To The Editor contracting ▹ BY JOHN LAND 13 · Judge Herbert Carr 40 · The new defence of responsible communication People on a matter of public 14 · On the move interest ▹ BY GARRY WILLIAMS 18 · The lawyer who 43 · Update on two environment proved the doctors projects ▹ BY LYNDA HAGEN wrong ▹ BY CRAIG STEPHEN 44 · Ministry for the Environment 6873 20 · Helping hatch the stars of the RMA guidelines for front-line future ▹ BY GEOFF ADLAM staff ▹ BY VANESSA HAMM 22 · Lawyer and journalist: the busy 46 · Territory - Do you really life and the many talents of know what you are Reina Vaai ▹ BY NICK BUTCHER getting? ▹ BY STEWART GERMANN 24 · The Innovators: Helen Mackay, 48 · Inland Revenue targets Juno Legal Director and "dividend stripping" ▹ BY TORI lawyer ▹ BY ANDREW KING SULLIVAN

Creating A Just Culture the Justice System 26 · What has been changing 51 · Decision highlights in the largest law firms? problems with court 35 · Women lawyers plan wide- reporting ▹ BY NICK BUTCHER ranging Gender in the Law 8895 report ▹ BY ANA LENARD 36 · Update

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57 · Just under one-third of 71 · Adding significant 84 · International Indigenous Rights judge-alone District Court trials value to client in Aotearoa New Zealand ▹ adjourned ▹ BY GEOFF ADLAM relationships ▹ BY ELEANOR REVIEWED BY DR MARIA A 60 · Administrative CATER POZZA AND MIAANA WALDEN impositions on the judicial 73 · Focus on Napier ▹ BY CRAIG 86 · New Zealand Law Society process ▹ BY JOHN BURN STEPHEN Library services: The hidden 76 · Carl Rowling - the Napier gold ▹ BY GEOFF ADLAM tikanga and Ture lawyer with the big-time 61 · Te reo Māori, kei connections ▹ BY CRAIG Classifieds a ia anō tōna ake STEPHEN 88 · Will notices whakahua ▹ BY ALANA THOMAS 77 · What to do when 89 · Legal Jobs you discover you've 91 · NZLS CLE Ltd CPD Calendar Mediation been hacked or 62 · Consensus defrauded ▹ BY GEOFF Lifestyle Building ▹ BY PAUL SILLS ADLAM 94 · A New Zealand Legal Crossword 95 · Scuba diving in Practice practising Well Iceland ▹ BY KRISTY RUSHER 64 · Does the legal 80 · Let's have some fun out 98 · Tesla Model S profession have cultural there ▹ BY KATIE COWAN P100D ▹ BY WILLIAM MCCARTNEY capability? ▹ BY GEOFF ADLAM 100 · The Open Championship 68 · The Pacific Lawyers Legal Information courses: A bucket list Association's views 82 · How Judges Decide trip ▹ BY STEPHEN BRENT 70 · Chapman Tripp pro bono Cases - Reading, Writing 104 · Denver - a work in assistance helps Dignity and Analysing Judgments, progress ▹ BY JOHN BISHOP social enterprise ▹ BY JACINTA 2nd edition ▹ REVIEWED GULASEKHARAM AND BY GARRY WILLIAMS 106 · Notable Quotes MIRANDA HITCHINGS

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From the Law Society

released. When a response was received For the first time in its 149-year his- the evening that the application had been tory, the Law Society is bringing an inde- filed, it did not allay the Law Society’s pendent, non-lawyer onto its Board. We concerns. That response was put before have already started recruiting for this the court at the earliest opportunity and position. prior to the order being made. This is an important step for us in chang- I want to be crystal clear that the injunc- ing the way we operate through all levels tion was only ever designed to protect the of our organisation. It reflects our com- personal information of those affected by mitment to transparency, openness and our mistake. We made the mistake, we diversity of perspectives. To fill this role, we accepted it, we apologised, we took the are looking for a person with commercial steps we believed necessary to protect experience, but also with a strong track those who were affected and we have put record of driving cultural change, diversity in place steps to ensure it cannot occur and inclusion. again. To meet the requirements of the The injunction was intended as a short- Law Society constitution, the position term measure until agreement could be is described as an independent Board reached which set the boundaries around observer. The successful applicant will publication in a way which would not have full speaking rights at each meeting disclose any personal and confidential of the Board. information. Over the next few months Our Board comprises the President there were protracted negotiations with and four Vice-Presidents. All positions are elected and the Vice- the recipient of the email and a media organisation which had, Presidents provide their time voluntarily. The new role is a paid one. somehow, become aware of the injunction. I believe the fact that Our Board provides sound governance at present and repre- media became involved supports the steps we took to protect sents the profession admirably. At the same time we recognise those affected by the privacy breach. the benefits of increasing the diversity of inputs and viewpoints I appreciate that the headlines painted a very different story into the Law Society. We look forward to the contribution of a but it’s important to me that you hear from the Law Society as new independent voice at our table. to exactly what happened and why. This important change comes along with some other developments which have kept the Law Society in the news. Access to justice A focus on improving access to justice is a fundamental aspect The privacy breach of the Law Society’s duty to protect the rule of law. Accurate We have been very disappointed with the recent media reporting provision of information on the justice system and our courts is in relation to the Law Society obtaining an injunction to protect essential. This issue of LawTalk takes a look at the state of court confidential information caused by an inadvertent privacy breach. reporting in New Zealand. Members of the legal profession and The statements we released at the time are included on the next judiciary have some concerns, and these are outlined from page 51. page. The Law Society received a complaint through the standard Creating a just culture process and, due to a staff autofill error, it was sent to somebody On a more positive note, I urge everyone to read the article which who should never have received it. This was a serious privacy begins on page 26. The 15 largest law firms in New Zealand share breach caused by a common and genuine mistake. the initiatives they have underway to build safer, respectful and We made nine separate attempts by email, phone and text inclusive cultures. to contact the recipient of the email. Each was unsuccessful. We cannot understate the scale of the challenge, but it’s impor- We were extremely concerned that the information would be tant to acknowledge the commitment to change and the action more widely shared. The persons named in the information were that is now underway. I want to acknowledge that commitment understandably extremely upset by the breach. We initially sought and the very real progress that is being made. At the same time guidance from the Privacy Commissioner’s Office. Seven days we should acknowledge that change cannot occur fast enough. after the breach and having received no response at that time we applied for an interim suppression order to prevent publication Kathryn Beck of the private and confidential information we had inadvertently President, New Zealand Law Society

6 LAWTALK 921 · September 2018 NEW ZEALAND LAW SOCIETY

NEW ZEALAND LAW SOCIETY

Law Society acknowledges privacy breach

absolute confidentiality,” Ms Beck said. The New Zealand Law Society released a media statement The Privacy Commissioner, John Edwards, said he had reviewed on 2 August in which it acknowledged and apologised for a privacy the steps that the Law Society took following the breach and breach. The breach involved a Law Society staff member sending considered that they were responsible steps. confidential information, in an email, to the wrong person by mistake. Clarification of inaccurate reports The email contained a complaint to the Law Society by a legal Inaccurate reports in the media required release of another state- practitioner about his own conduct alleged to amount to sexual ment on 4 August, to correct suggestions that the Law Society harassment or bullying. Court orders prevent any publication had attempted to hide its breach of privacy. The reports alleged of details. that the Law Society sought an injunction to stop publication of This was human error created by an ‘auto fill’ response in email- information about the breach so as to cover up its actions. ing. The name of the intended recipient, a Law Society employee, Kathryn Beck said the injunction was a last resort, sought solely was similar to the name of the person who ultimately received to ensure confidential information was not further communicated. the information. “Our motivation was to provide the highest degree of protection The Law Society President, Kathryn Beck, said this was an to those affected by the privacy breach and to the information unacceptable and preventable mistake. itself. “This error has caused additional and unnecessary stress for “As soon as we discovered the breach we made repeated efforts those whose information was disclosed. The Law Society was to contact the person to whom the information had been sent. entrusted with information that it should have been able to There was no response until after the order had been sought from properly protect and we fell short of our internal standards. We the court. After the proceedings were filed an email was received are profoundly sorry for this unacceptable mistake.” from the recipient but it did not provide the Law Society with the The Law Society asked the recipient to delete the information. assurances it had sought. The Law Society considered it had no The recipient did not initially respond to repeated attempts at choice but to continue with the proceedings. The email from the contact. All those involved were immediately told about the breach recipient was put before the court before the order was made,” as well as the Office of the Privacy Commissioner. Ms Beck said. In order to protect the privacy of the “The information was highly confidential. We could not be sat- people involved, the Law Society sought isfied the information had been deleted or be assured about the a court order preventing the publication intentions of the person who had received it, so the Law Society of the details of the email. The Society’s had to take urgent steps to protect the privacy and confidentiality concern was to protect the confidentiality of those affected.” of the information and to ensure no further An injunction and suppression orders were sought and granted dissemination. by the court. The Law Society accepts this incident “The Law Society never intended nor asked that these orders raises questions about how it handles would stay in place indefinitely. They were vital measures to protect confidential information. the privacy of the information and those it affected,” Ms Beck said. Kathryn Beck said: “Any breach of “We had no intention of preventing any reporting of our privacy undermines the integrity of an breach of privacy. This was made clear to the person who organisation. This comes at a time where received the information throughout. Our primary concern questions are being asked about our has always been to protect the privacy of those affected as organisation’s systems and processes. We effectively as possible. must provide the highest standard of care “The time taken between the court granting the injunction in regard to private information. We did and making the order on Thursday, 2 August was longer than not do that on this occasion.” had been anticipated. This was due to the Law Society trying The Law Society has reviewed its pro- to secure an agreement with the recipient of the information cesses to test that they are as resilient and the media organisation that would continue to protect the as possible and all staff have also been confidential information and would not compromise the privacy instructed again on the need to follow the of the affected individuals when the injunction was lifted. procedures at all times. “The Law Society had to ensure the information had been “It is vital that people contacting the Law deleted, had not been shared and would not be used in the future. Society about complaints can be assured The injunction was the strongest and most efficient way to fulfil that their information will be treated with this duty.”

7 NEW ZEALAND LAW SOCIETY September 2018 · LAWTALK 921

Women leaders meet at ABA Family Court review welcomed

New Zealand Law Society President Kathryn Beck The New Zealand Law Society has welcomed the is pictured with the six other women leaders of law soci- announcement of an independent panel to review the eties and bar associations attending the American Bar 2014 changes to the Family Court. Association Annual Meeting in Chicago in early August. “The panel has been given until May 2019 to report The leaders are (from left to right): Alison Atack to the Minister of Justice with its recommendations (President, Law Society of Scotland), Eileen Ewing and this should allow time for adequate consultation. (President, Law Society of Northern Ireland), Kerrie It is pleasing to see two senior family lawyers on the Simmons (President, Canadian Bar Association), panel and the involvement of a third panel member Christina Blacklaws (President, Law Society of England with a human rights background,” the chair of the Law and Wales), Hilarie Bass (President, American Bar Society’s Family Law Section, Kirsty Swadling, said in Association), Kathryn Beck (President, New Zealand Law a statement following the announcement. Society), Sheila M MacPherson (President, Federation “The operation of our Family Court system involves of Canadian Law Societies). many different rights and responsibilities, which means Ms Beck says the issues covered were wide ranging the panel needs to carry out a careful and considered but shared by all the bar councils and law societies rep- balancing exercise. What is clear is that change is resented. They included cybersecurity and protection of needed to benefit the interests of parents, caregivers client information, anti-money laundering measures in and children who are the subject of Family Court Europe, artificial intelligence and other new technologies proceedings.” and the practice of law, cross-border ethics, corporate Ms Swadling says it appears that the review will and social responsibility, the future of law, women in address all of the changes made in 2014 to parenting the law, and sexual harassment and discrimination and guardianship matters in the Care of Children Act. both from a legal workplace and a general human rights “This is quite broad and seems to indicate that the perspective. review will cover more than the particular issues iden- “The message I delivered was that although we in New tified in the terms of reference. This means it will allow Zealand are far away, we are active and open minded examination and hopefully simplification of the tracks members of the international legal profession with in the current family justice system so that there are much to contribute and a desire to learn from other fewer events. jurisdictions,” she says. “I also expect that the roles of lawyer for child and “We all practise law and that common thread is bind- lawyer to assist will come within the review. Given ing, and with the use of technology we can build closer the widespread discussion of these and lasting connections. I also encouraged them to come recently, it will be good to be able and visit our fantastic country and see for themselves to have a practical conversation on what a wonderful law profession we have here.” the issues.” Ms Swadling says the Law Society will fully participate in the consultation and there are many areas within the terms of reference on which it will make submissions. “There are other matters which could fall outside the scope of the terms of reference, but we are encouraged that the panel is able to recommend further work on these. There are many other issues in the family justice system that may fall outside the scope but would benefit from review. “It is important to point out that whatever changes may come about from the review, New Zealand’s family justice system will only work if it is sustainable and supported with sufficient funding.”

8 LAWTALK 921 · September 2018 NEW ZEALAND LAW SOCIETY

Prison cell ‘double- bunking’ changes inconsistent with UN Rules New Zealand

Law Society at A proposed law change making prison cell sharing or ‘double bunking’ the norm is inconsistent with New Zealand’s obligations POLA meeting under UN Rules relating to treatment of prisoners, the Law Society says. The New Zealand Law Society has presented its submission on the Corrections Amendment Bill to Parliament’s Justice select The New Zealand Law Society was one committee. It says removing the current legislative preference of 17 lawyers’ organisations which attended for single-cell accommodation is inconsistent with the United the 29th POLA Conference in Canberra Nations Standard Minimum Rules for the Treatment of Prisoners. from 2-3 August. POLA is the Presidents The UN Rules allow for shared cells but only where there are of Law Associations in Asia and the annual special reasons, such as temporary overcrowding. Currently, New meetings provide an excellent learning and Zealand Corrections legislation reflects the UN Rules’ preference networking opportunity. Observers from for single-cell accommodation. the International Bar Association, LAWASIA However, the bill would make shared cells the norm, rather and the Inter-Pacific Bar Association were than the exception in special circumstances. also there. “While cell-sharing may be unavoidable in some cases, it should Conference sessions were held on the not be the legislative norm,” Law Society spokesperson Katherine independence of the judiciary and the Anderson told the committee. legal profession, anti-corruption and “A 2006 inquiry into a cellmate murder in the UK concluded that transparency, business and human rights single-cell accommodation helps to reduce the risk of conflict between and the legal profession, and inclusion and prisoners and recommended the UK Prison Service should put a high diversity in the legal profession. priority on eliminating enforced cell-sharing,” Ms Anderson said. A conference communique included “The bill also removes the current requirement for Corrections the statement that the legal profession is instructions to ensure the use of shared cells is safe, secure, humane committed to equality as a fundamental and effective, and does not require that prison managers ensure attribute of the rule of law. It said POLA prisoners accommodated in shared cells are carefully selected.” members will continue to promote equality, The Law Society says the current preference for single cell accom- inclusion and diversity within both the legal modation is consistent with the UN Rules and should be retained. profession and the communities served by The Law Society has also raised concerns about other aspects the legal profession. of the bill, including the use of mechanical ‘tie-down’ restraints on prisoners in hospital, and management of prisoners at risk of self-harm. The Law Society has recommended changes to improve the bill’s clarity and workability, and compliance with domestic Advertising in LawTalk and international human rights standards. and LawPoints Inquiries about advertising in LawTalk or LawPoints should be directed to advertising@lawsociety. org.nz. A media kit with details of advertising requirements and charges is available on the Law Society website in the News and New client relationships at your ﬁ ngertips Communications/LawTalk section. The Law Society has a strict policy of New Zealand’s independent not publishing articles in exchange online legal marketplace for advertising. www.consensus.nz

9 NEW ZEALAND LAW SOCIETY September 2018 · LAWTALK 921

Law Society marks first decade of Lawyers and Conveyancers Act

The legislation that radically changed the way lawyers and conveyancers do business and conduct themselves Privacy law reform is now 10 years old. The Lawyers and Conveyancers Act 2006 replaced may lead to the longstanding Law Practitioners Act. It came into effect on 1 August 2008. over-reporting of The new Act introduced major changes to the regulation of lawyers. These included a stronger focus on privacy breaches protecting the consumer and one regulator for lawyers. New Zealand Law Society Executive Director (Acting) Mary Ollivier says the new Act consolidated and central- The New Zealand Law Society has welcomed ised regulation of all lawyers with the New Zealand Law updated privacy legislation that provides better pro- Society becoming the regulator for the legal profession. tection for personal information, but it warns that the “The previous Act had allowed 14 different district law proposed test for reporting data breaches is likely to societies to carry out regulatory functions under their lead to substantial over-reporting. own prescribed rules. Each society issued practising The Law Society presented its submission on the certificates and regulated lawyers in their respective Privacy Bill to Parliament’s Justice select committee, areas. The provisions for investigating complaints were saying recent privacy breaches demonstrated the height- not consumer focused and the processes followed varied ened risks to personal information in an increasingly from district to district. There was no obligation for complex digital world. central or public reporting by each district. However, the Law Society says the proposed test for “The new Act has a strong consumer focus and intro- mandatory reporting of privacy breaches will make the duced a more responsive and consistent complaints law uncertain and difficult to apply. service which allowed compensation to be paid to cli- “The harm threshold that triggers a notifiable privacy ents where appropriate. It introduced the new regulated breach is open to widely varying interpretations. This profession of conveyancers and new conduct and client uncertainty is likely to mean that in practice agencies care rules. It also created offence provisions for people will err on the side of caution and notify a breach even holding themselves out to be lawyers. Lawyers were made if it is not required,” Law Society spokesperson Katrine to be more accountable. The Law Society is also required Evans told the select committee. to report annually on its regulatory activities,” she says. “The Law Society recommends a ‘brighter line’ test for Once the new Act became law it was another six triggering the new obligations to notify breaches, such months before the assets of all district law societies as the ‘serious harm’ threshold used in the Australian needed to be transferred to the New Zealand Law Society. Privacy Act,” Ms Evans said. Auckland District Law Society elected to retain its assets The Australian legislation sets out relevant factors for and other holdings but no longer has any regulatory determining whether disclosure would likely result in powers and has become an incorporated society. The serious harm. other district law societies became branches and con- “Providing additional guidance in the bill would tinue to carry out some delegated regulatory functions. help to reduce uncertainty and would ensure that the Mrs Ollivier says, as the first decade ends, a special obligation to notify arises only in suitably serious cases,” working group chaired by Dame Silvia Cartwright is inves- she said. tigating whether the current regulatory framework is still The Law Society says that amending the test would fit for purpose and is looking at the complaints process. also bring the benefit of aligning New Zealand privacy “That initiative is in reaction to the disturbing alle- law with key trading partners such as Australia. gations of sexual harassment and bullying occurring in The Law Society has recommended a range of other some workplaces where law is practised. While the Act amendments to the bill, including to provisions for access set the framework under which we must operate, it is and correction of personal information, complaints very clear that we must continue to assess its fitness and investigations, and clearer rules on cross-border for purpose and whether it is adequate to enable the disclosure of information. cultural change which must happen. “Our recommended changes aim to ensure that pri- “We also need to look at whether the Act will remain vacy reforms are workable in practice and will operate fit for purpose as new ways of practising law arise with in a proportionate and justified way,” Ms Evans said. the advancement of technology,” Mrs Ollivier says.

10 LAWTALK 921 · September 2018 NEW ZEALAND LAW SOCIETY

Better Police vetting clarity welcomed

There is a need for greater clarity around what Insurance contract law review information can be considered and released in a Police objectives not on the mark vetting, and a clear legislative framework would assist in this, the Law Society has said in its response to a The objectives of MBIE’s review of insurance contract Police consultation paper, Legislation for the New Zealand law do not adequately acknowledge the unique nature Police Vetting Service. of insurance contracts and insurance business, the Law The paper is part of government consideration of a Society says. The review has the objectives of ensuring Policing Act 2008 amendment which would establish a that at all points in the lifecycle of an insurance policy, legislative framework for the Police Vetting Service and (1) insurers and insureds are able to transact with follows a Police-initiated review of the service. The Law confidence; and (2) interactions between insurers and Society says a clear statutory framework would give insureds are fair, efficient and transparent. greater clarity and certainty about what information In comments on MBIE’s issues paper on the review, may be disclosed, and more consistency in how vetting the Law Society says the objectives are modelled on the requests are processed. two main purposes of the Financial Markets Conduct Act “A general test that information released in a Police 2013. It says insurance contracts do not fit well with these. vet must be relevant and substantiated should be clearly “The FMC Act seeks to address the information asym- articulated in any legislative framework,” it says. The metry between market participants and consumers. A standard of proof required to substantiate the infor- consumer will know less about an FMC Act financial mation should be clearly spelled out and should vary product, particularly the risks of that product, than according to both the nature of the information and the product provider. To rebalance the information the nature of the role that the person holds or is being asymmetry between provider and consumer, the FMC considered for. Act requires disclosure of information and can impose If a legislative framework is introduced, it will need other protections, such as licensing. Information asym- to specify the test for releasing suppressed information, metry that disadvantages the consumer provides the the Law Society says. It agrees with the review that it is justification for regulation of securities and is inherent appropriate to have a higher threshold for disclosure of in the purposes of the FMC Act,” the Law Society says. suppressed information than for other, general informa- When the product being provided is insurance, there tion. It says there should be a strong presumption against may be a reversal in the direction of the information release where the service is aware that a court has made asymmetry. The customer is likely to have significantly a final suppression order following an acquittal. more information about the risk that forms the basis of the insurance than the insurer – particularly the case for life and health insurance. New Zealand Law The Law Society says this potential reversal of the Society submissions usual direction of information asymmetry needs to be reflected in the objectives of the review “which should Copies of submissions and comments made by the reflect the unique nature of insurance contracts and Law Society in its law reform role may be found on the insurance business” and is particularly important as website under News & Communications, and within a central part of the review is to consider the flow of that, “Law reform submissions”. information between the customer and the insurer.

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11 LETTER TO THE EDITOR September 2018 · LAWTALK 921

LETTER TO THE EDITOR Judge Herbert Carr

Tena Koe, Māori Land Court in the 1920s and biographies/5c10/carr-harold-herbert Could we please have a correction 1930s on the East Coast of the North Nga mihi, on page 74 of LawTalk 902 (August Island (Tairawhiti Māori Land Court Dr Paerau Warbrick 2018), “Some trailblazers”. District). He served on the bench Te Tumu: School of Māori, Pacific and Indigenous Studies, I have constantly seen an inaccu- 1923-1952 (nearly 30 years). University of Otago. racy over the years in regard to the He viewed himself as Māori even first Māori judge appointments to though he had mixed parentage (a Geoff Adlam replies: the bench, and this really needs to Māori mother and Pākehā father), Dr Warbrick’s correction is much appreciated and I apol- be corrected. and this is the same for (Judge) Ken ogise for not marking Judge Carr’s great contribution to The first Māori person appointed Mason, (Judge, Chief Judge, Justice) New Zealand legal history. The chronology of New Zealand to the bench was Judge Herbert Eddie Durie and (Justice) Lowell legal trailblazers has now been placed on its own page Harold Carr (1880-1973). He was a Goddard who also have mixed on the Law Society website (www.lawsociety.org.nz/news- nephew to the Hon James Carroll, parentage as well. and-communications/people-in-the-law/nz-legal-trailblazers) one of the first Māori Cabinet Could we please have a correction and corrected to ensure Judge Carr is recognised. ministers. to this in LawTalk, so Judge Carr The opportunity has also been taken to correct another Judge Carr was appointed a could be given this recognition error. By mistake the swearing in of A’e’au Semikueiva Native Land Court judge in 1923. please. Epati as a District Court Judge was listed as occurring Members of my whanau appeared You can see also see his biography on 22 February 1982, instead of the actual date of 22 before him in the Native Land Court/ in Te Ara at https://teara.govt.nz/en/ February 2002. This error is also regretted.

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12 LAWTALK 921 · September 2018 PEOPLE · ON THE MOVE

PEOPLE ON THE MOVE

Independent Panel for Simpson Grierson specialises in all aspects Family Court review appoints new HR Director of family law, particularly relationship prop- Justice Minister Andrew Little has Simpson Grierson erty and contracting out appointed a three-person Independent has appointed Paula agreements, separation Panel to examine changes made to the Williams as its new and divorce, care of chil- family justice system in 2014. The Panel will Director of Human dren and guardianship be supported by an expert reference group Resources. Paula joins disputes. and is required to report by May 2019. the firm from Air New Andrew Logie has Rosslyn Noonan will chair the Panel. Ms Zealand where she held been promoted to senior Noonan was Chief Commissioner for the senior roles in the HR lawyer in the commer- New Zealand Human Rights Commission team, most recently as Senior HR Business cial and property team. from 2001 to 2011. She is currently direc- Partner – Air Operations and Business Andrew joined Malley tor of the Centre for Human Rights at the Performance Group. She has a Masters & Co in 2015. He has University of Auckland Law School. in Advanced Leadership from Massey experience in a wide La-Verne King is a director of Kaitaia University and is currently completing a range of commercial law firm Doubtless Bay Law Ltd. She was Masters in Technological Futures from Tech transactions. Andrew is also a current admitted as a barrister and solicitor in Futures Lab, Unitec. member of the New Zealand Law Society December 1989 and practises in the Youth Canterbury-Westland Young Lawyers and Family Courts. Ms King was a found- Malley & Co promotions Committee. ing partner of King Alofivae Malosi before and new staff Chantal Morkel has returning to Northland in 2006. joined the firm as a Chris Dellabarca is a partner of Canterbury firm Malley & Co has promoted senior associate in the Wellington Family Law. He has practised four staff and welcomed another two commercial and prop- law since his admission in September lawyers. erty law team. Chantal 1994 and has specialised exclusively in Michael McKay began her legal career family law since joining the firm in 2007. has been promoted to in South Africa and has He is a senior lawyer for child and has also senior associate in the a solid background in tutored at the Institute of Professional firm’s Litigation and commercial, property and trust law. She Legal Studies. Dispute Resolution has developed a specialist practice provid- team. Michael joined ing trust, asset planning and retirement Henderson Reeves Malley & Co in 2012 and village advice. appoints Amanda specialises in construc- Lani Gerber has Morgan as director tion and insurance litigation and is also joined the firm as an experienced in arbitration and mediation. associate and branch Whangarei firm Sarah White has manager in the Hornby, Henderson Reeves has been promoted to Christchurch, office and appointed Amanda senior associate in the is part of the commer- Morgan as a director. family law team. Sarah cial and property team. Amanda was admit- joined Malley & Co in Lani also began her legal ted as a barrister and 2014 and specialises in career in South Africa and, after some crim- solicitor in October relationship property inal defence work early on her career, has 2008 after graduating as well day-to-day care developed a broad range of commercial from the University of Auckland. She and contact disputes, applications under and property experience. joined the firm in 2009 and specialises the Hague convention on the civil aspects in family law, with particular interests in of child abduction, contracting out agree- New Parole Board chair relationship property, trust law and elder ments, divorce and separation, and matters law (particularly retirement village pur- with international elements Former High Court Judge Sir Ronald chases and powers of attorney). Amanda Colleen Moore has been promoted to Young has been appointed chair of the completed an LLM (with distinction) in senior associate in the family law team. New Zealand Parole Board, effective from 2016. Colleen joined the firm in 2008 and 13 August 2018. Sir Ronald takes over from

13 ON THE MOVE · PEOPLE September 2018 · LAWTALK 921

Warwick Gendall QC who served as chair completing BA and LLB degrees. Rebecca has Tara Hurley returns from 2012. Sir Ronald retired as a Judge of worked with the Dairy Women’s Network to Martelli McKegg the High Court in 2015 after more than 27 assisting in the formulation of their Stepping years as a judge which included 14 years on Up safety module and presented this Martelli McKegg has the High Court Bench. He was appointed throughout the South Island. announced the return a District Court Judge in 1988 and became to work of senior asso- Chief District Court Judge in 1993 before Laura Valiant joins ciate Tara Hurley from his appointment to the High Court in 2001. FlexiGroup New Zealand a second period of maternity leave. Tara is Lawyer new EPA Laura Valiant has been appointed General a specialist relationship Board head Counsel and Company Secretary for property and family FlexiGroup New Zealand. Admitted as a trust lawyer and has been a member of Hamilton lawyer Julie Hardaker has barrister and solicitor in September 2000, Martelli McKegg’s Auckland team for 10 been appointed chairperson of the Laura has experience in legal, financial ser- years. She relocated to Rotorua last year Environmental Protection Authority Board. vices and executive roles. She has, provided and now works remotely for Martelli Ms Hardaker is a director of the law firm commercial, transactional and strategic McKegg from her new home office, which Julie Hardaker Ltd, which provides gov- legal advice for large global companies Martelli McKegg set up for this purpose. ernance advice and specialises in public and financial institutions in both the UK and employment law. and New Zealand. Laura has moved to Nick Summerfield She was admitted as a barrister and FlexiGroup from the role of Deputy General appointed partner at solicitor in June 1995 and was Mayor Counsel, Head of Legal (New Zealand) and Anthony Harper of Hamilton from 2010 to 2016. She Company Secretary for Latitude Financial received the Order of Te Arikinui Queen Services. Anthony Harper Te Atarangikaahu in 2016 for services to has appointed Nick Māori, and has a strong interest in envi- Jane Belthazar establishes Summerfield to the ronmental issues and protection. Belthazar Law Ltd partnership. Nick specialises in financial New partner at Jane Belthazar com- services, corporate Preston Russell Law menced sole practice advice and banking and as sole director of an finance and is based in Southland firm Preston incorporated law firm, the firm’s Auckland office. He was admitted Russell has appointed Belthazar Law Ltd, in as a barrister and solicitor in 2002 after Rebecca McLeod as a Auckland on 1 July. Jane graduating BCom, LLB from the University partner. Rebecca heads has a BCom from the of Canterbury. Nick has practised in the firm’s Winton office University of Auckland Australia and the United Kingdom. and works in the employ- and an LLB from AUT and was admitted as ment law and primary a barrister and solicitor in December 2013. New appointments industries teams, with a She will continue to practise in the areas and promotions at particular focus on health and safety laws of commercial law, property law, trusts, Anthony Harper in relation to farming. She was admitted as employment law and civil litigation and a barrister and solicitor in June 2006 after dispute resolution. Anthony Harper has announced a number of appointments and promotions. Luana Nickles has been promoted to senior counsel within Anthony Harper’s national employment team. Luana, who is from Te Whakatōhea and Ngāi Tai, is a fluent speaker of Te Reo Māori. She has expertise in industrial relations, health and safety, employment and discrimination law and has worked on some of the largest

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industrial disputes in Australia. Luana is from the University of Wynn Williams based in Anthony Harper’s Auckland office. Canterbury Kate was appoints new National Ginny Coubrough admitted in 2015 and Managing Partner has joined the retire- spent time in London ment villages team in where she gained Wynn Williams has Auckland as a senior experience in forensic announced the appoint- associate. Ginny was investigation and inter- ment of Philip Maw as admitted in May vention at a top UK firm. National Managing 1995 after graduating Marin Surgenor Partner following the LLB from Waikato has been promoted retirement of Jared University. She has extensive corporate, to an associate in the Ormsby. Philip has commercial and regulatory experience Auckland property team. been a partner of the accumulated through time spent in an Marin was admitted in firm since 2011 and has led the resource international law firm in London, a Crown 2013 and has BCom, LLB management and environmental team entity, and as in-house counsel. and LLM(Hons) degrees. since 2012. He first joined the firm in 2004 Gwen Drewitt He joined the firm in as a law clerk. He is recognised by both has joined the firm’s 2013 and has experience across a range of Chambers & Partners and Legal 500 as a Christchurch office property matters, including commercial recommended and recognised leader in employment team as a acquisitions and dispositions, leasing and his field. senior associate. Gwen due diligence investigations. Philip Maw started as National Managing has an LLB(Hons) from Partner from 2 August 2018. Jared Ormsby Cardiff University and Stewart Germann will retire from the partnership on 31 was admitted in 2009 Law Office appoints October 2018. in England and Wales and in 2013 in New two lawyers Zealand. She has worked in employment Solomons continues law in New Zealand and the UK for a Auckland firm Stewart Germann Law Office expansion with number of years representing clients from has announced two appointments. appointments a range of industries including retail, tour- Andrew Skinner ism, manufacturing, fishing, construction joins the firm as a senior Dunedin firm Solomons has announced a and the public sector. associate with over 15 number of appointments. Marnie Blank has years’ experience in Alex Boock has joined joined the trust and corporate and com- the firm as an associate. assets team in Auckland mercial work. Andrew Alex has extensive expe- as an associate. After advises on the full range rience in commercial, completing an LLB and of business law issues, rural and residential Diploma of Management including commercial contracts, licensing, property transactions at Auckland University, advertising, leasing, health and safety and as well as rural refinanc- Marnie was admitted in procurement. Having previously worked ing, restructuring, and 2005. She specialises in trusts and asset for large national and international law succession planning. He also has dispute protection planning. Her area of practice firms, Andrew also brings a strong com- resolution experience, particularly in the is enhanced by her broad background in mercial focus developed from extensive areas of employment and relationship property, commercial and family law. in-house experience in the manufacturing, property. Helen Chen has joined the Corporate construction and distribution sectors. Elizabeth Dalton has Advisory team in Auckland as a solicitor. Khushbu Sundarji joined the firm as a solic- Helen has law and arts degrees from the has been appointed itor. After graduating, University of Auckland and was admitted an associate. Khushbu Elizabeth worked in the in September 2016. She advises on a range advises on franchising tax team of a national of corporate and commercial law matters and drafting commer- accounting firm and including mergers and acquisitions, cial contracts. She also later made the switch divestments, capital raising matters and has experience in the to practising law. She commercial contracts. sale and purchases of has broad general practice experience Kate Vilsbaek has joined the litigation businesses and property. Khushbu worked and currently works primarily in the area team in Christchurch as a solicitor. After in Melbourne for two years before joining of trust law. graduating with BA and LLB degrees SGL in 2017. Registered legal executive Margaret

15 ON THE MOVE · PEOPLE September 2018 · LAWTALK 921

Pascoe has also joined Legal appointments at as family law, including relationship the firm. Margaret com- AMP Financial Services property, and property law with a special pleted her New Zealand interest in trusts and estates. Law Society Legal AMP Financial Services has announced two Liam Glubb is a com- Executive Diploma in appointments in its legal team. mercial and property 1991 and has been a Tim Pritchard has been appointed specialist who joined registered legal execu- General Counsel. He has more than 25 Saunders & Co in 2016. tive for over 20 years. years’ legal experience, particularly within He commenced practice She has extensive experience in residential financial services. Tim started his career as in 2006 and works with transactions, business transactions, estates a litigation solicitor with Baker & McKenzie clients ranging from and leases. in London before moving to New Zealand. SME to large corporates. Charlotte Carr has been promoted Before joining AMP as Head of Legal in 2011, Liam has a particular interest in commer- to senior solicitor. Tim held relevant roles with the National cial property development. Charlotte specialises Bank of New Zealand and ANZ. in litigation with a Jacqui Anderson has been appointed Trevor Slater particular focus on Head of Legal. Jacqui has 20 years’ legal appointed Resolution commercial disputes, experience in financial services, corporate Institute Director relationship property and commercial law, in New Zealand and and employment. She the UK. She joined AMP as a senior legal Trevor Slater has been was admitted as a adviser in 2014. She has a BCom and a appointed as director of barrister and solicitor LLB(Hons) from the University of Auckland. trans-Tasman dispute in 2015. resolution member Jackie White has Three new partners organisation Resolution been appointed prac- at Saunders & Co Institute. Trevor is tice manager and trust FairWay Resolution accountant. Jackie has Saunders & Co has announced the appoint- Ltd’s Client Director of 15 years’ experience in ment of three new partners. the Financial Dispute Resolution Service – managing law firms. Jen Bensley leads an approved dispute resolution scheme for the firm’s immigra- financial service providers in New Zealand. Katie Mortimer appointed tion team. She was Trevor holds a Masters Degree in Conflict Lewis Callanan associate admitted in December Resolution from La Trobe University. 2010 after completing Lewis Callanan Solicitors BSc and LLB degrees Promotions at have appointed Katie from the University of McCaw Lewis Mortimer as an asso- Canterbury. She has ciate. Katie has been specialised in immigration law while also McCaw Lewis has announced three a senior solicitor with practising commercial and property law. promotions. Lewis Callanan since Sarah Bee has been Jonathan Aquilina March 2017 and was with the firm since has been promoted to previously with firms in 2013, having practised senior associate. He is a Wellington, Auckland and the UK, having since 2001 for three member of the commer- been admitted as a barrister and solicitor Wellington firms. Sarah cial team and specialises in 2010. Katie specialises in conveyancing, has expertise in a wide in business sales and wills, trust and estate, including estate range of legal disciplines purchases, commercial litigation. for private clients such leasing and construction and engineering

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PEOPLE projects. Jonathan was admitted as a solicitor PROFILE of England and Wales in 2005 and practised for several years in the UK and internationally. He joined McCaw Lewis in 2014. Laura Monahan has The lawyer been promoted to senior associate. Laura is also a member of the commer- who proved cial team and specialises in company and commercial law, advising on the doctors corporate structure and governance issues, commercial contracts, capital raisings and securities law. She has wrong been practising law since 2006 and before joining McCaw Lewis in 2012 worked in a large Auckland law firm and as in-house legal BY CRAIG counsel for a healthcare company in London. STEPHEN Ashlea Murphy has been promoted to associate. She is a member Vanassa McGoldrick isn’t one to let small things of the asset planning get her down. team and specialises in estates, trusts, relationship property and general asset protection The Whangarei litigation lawyer has struggled all her matters. Ashlea has been practising law life with health issues, having been diagnosed with a rare condition since 2008 and before joining McCaw Lewis when she was born. in 2014 worked as an in-house lawyer both Ms McGoldrick, who is 52, was born with Nail-Patella syndrome, in New Zealand and the United Kingdom. and has no kneecaps or quadriceps muscles in her thighs. “The advice from doctors was ‘amputate her legs, she’ll never Lance Wiltshire joins walk, don’t give her false hope’. It was a very rare disability which Rice Craig partnership hadn’t been seen in New Zealand at that time.” Nowadays Ms McGoldrick is able to walk short distances but From 3 September 2018, Lance Wiltshire has the aid of a mobility scooter “which I shoot about town on is ceasing practice under the firm name of or head up to the courthouse on”. Wiltshire Stone Lawyers, and together with “Parking in the city is always an issue, but having the fold-down his team of four, is joining the Papakura scooter eliminates some of the parking issues because I can hop practice of Rice Craig, as a consultant. about on it if I can’t park close enough to the office.” Lance will continue to practise in the area of property and commercial law, trusts, Going to England with hope succession planning, wills and estates. At the age of six, Vanassa’s English father took her over to his home country “before they took such drastic action in having my legs amputated” to have operations on the feted National Contributing information Health Service (NHS). to On the Move “Those operations were semi-successful as they kept me walking Brief summaries of information about but they weren’t as successful as the doctors there had hoped. So promotions, changes in law firms, they cut the muscle out of the sides of my legs and moved them to recruitment and retirement are pub- the top of my legs to enable me to then have like a kicking action.” lished without charge in On the Move. She was in hospital in England for just over a year and on being Please send information as an email discharged was advised to swim as much as she could, which she or MS Word document to editor@ did back in New Zealand. lawsociety.org.nz. Submissions Unable to do much in the way of sport at school, Ms McGoldrick should be three or four sentences focused instead on learning to type. And that is where she expe- without superlatives and may be rienced a form of epiphany that led to her eventual career path. edited to conform to the format used. “I was typing at lunchtime and during sport lessons and I A jpeg photo may be included. became very fast. A teacher gave me a “C” for effort and when I questioned her she effectively told me I was doing just enough

17 PROFILE · PEOPLE September 2018 · LAWTALK 921

and not exercising my potential because, in her words ‘you think that by being fastest in the school you are already there’. “She said ‘when you go for a job interview the first thing they are going to see is your crutches and the first thing they’re going to think is how do we politely say no’. She wanted me to go in for my first interview with so many qualifications that I would be the only person they wanted for the job. “It was a real defining moment and pretty much changed my life because from then on it wasn’t ‘what do I have to do to beat the others’, it was ‘how big is the potential ahead for me’?” She had wanted to be a lawyer at the age of 16 but accessibility issues prevented Vanassa from going to university and led to her instead being a stenographer in the Whangarei courts. Dealing with frustration After two years in the UK using her typing skills she qualified as a legal executive in New Zealand in 1990 and worked in the role for 20 years. “I loved being a legal executive but I got Professor Mark Henaghan and the staff did an amazing job making to the stage where I felt I could do so much sure I was able to be as normal a student as is possible. more. It was frustrating as a legal exec “I was working at Henderson Reeves, raising children, studying having a lawyer sign off on a document full-time and remained on all the disability boards that I was on. that I had more knowledge about than the People ask me how I got through that time, and I look back and lawyer, because I had been working on the think I have absolutely no idea. file from day one.” “I often wanted to swap my children’s Harry Potter books with She wanted to do litigation work and to my ones on contract law.” help people with disabilities in ACC claims She was admitted in 2012 and focused on litigation, specialising and related matters. in disability and family law. But it wasn’t that straightforward. “You get a lot of people in terrible circumstances and a lot “It felt incredibly wrong that I should of pain needing immediate help and that was an area I knew I have to make a choice between being able would do well in.” to carry on fighting to walk versus being Ms McGoldrick began working at Henderson Reeves in 2004 able to get the education that I should be and was attracted to the firm because it had access for disabled entitled to.” people and great family values. “There was – and still is – a little She would have been able to get other lift as you come into the building that gets you up the first three international correspondence degrees but or four stairs.” not a New Zealand degree. She is Chairperson of the Whangarei Accessible Housing While working as a legal executive in the Trust and a member of the CCS Disability Action Local Advisory commercial and property team and raising Committee. her children, Ms McGoldrick enrolled in law at the University of Otago in 2008. Double whammy She studied remotely but flew down to Two-and-a-half years ago Ms McGoldrick suffered a mini stroke Dunedin for exams and other course-re- that was brought on by a “pretty big” brain tumour that was lated matters and corresponded regularly discovered the same day. with her tutors via Skype and telephone. “I got admitted with the stroke symptoms and then they did “It wasn’t a correspondence course, so the CT to eliminate a tumour as being the cause … only to find

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PEOPLE PROFILE out it was the cause,” she says. “It came completely out of the blue and was a big shock. That was completely separate from my disability Helping but because of my disability some of the signs – such as being unsteady on my feet – leading up to the stroke, and the discovery of the tumour, were kind of masked hatch the by the fact that I had a disability. “Initially, the doctors were unsure whether the brain tumour could be removed so it was very stressful at stars of the the time, but luckily I had medical insurance through Henderson Reeves and was able to have it operated on within a week of diagnosis and that was succesful.” future Early ignorance “The problem was that when I was born there was so BY GEOFF little known about my disability, so some of the things ADLAM they (doctors) were telling us – like short life expectancy – weren’t necessarily true but, to be fair to them, they didn’t know an awful lot about my condition. “And with a lot of disabilities you do have a shorter Focused parents were one of the key reasons life expectancy, but over the years we have discovered behind the career choice of Wellington tax lawyer and that isn’t always true and I have just as good a chance Pacific business mentor Arti Chand. of living a long life as anyone else.” Ms Chand grew up in Fiji and came to New Zealand to Growing up Vanassa would go on camps and do other study law at Victoria University, completing LLB and BCA activities with disabled youth and teenagers, having degrees. She was admitted as a barrister and solicitor “wonderful experiences” meeting people from other in December 2003. parts of New Zealand and other countries because of “My parents were very focused on education, hugely her disability. so. My dad came from a farming background and became “It demonstrated the differences from how my parents a land surveyor, so he was the first professional person raised me to how probably the majority of parents back out of his family. My mum did not complete high school, then would normally raise a disabled child. That is, they but both of them were extremely committed about are paternalisitic and protective and they are worried educating my sister and me. that they are going to try too much and be left disap- “From an early age my dad told my sister that she was pointed. So they try to protect them from the knocks going to become a doctor and I was going to become in life – and that’s a perfectly understandable way of a lawyer and now, she’s a doctor and I’m a lawyer. It doing things. But if you reverse that and take away the helped that as I followed that through, it fit with what limitations you would put on somebody, it opens up a I wanted. My sister is a scientist rather than a medical world for them because I didn’t ever, as a child, think doctor, but I think a little bit of brainwashing helps I couldn’t do things. sometimes.” “I talked about going on an OE just like my friends Her experiences of coming to a different country talked about going on an OE and my parents never to study have stayed with her. Ms Chand is actively turned around and said ‘that’s never going to happen, involved with the Pacific Business Trust and its Hatch just look at your legs’; they just went ‘when are you Youth Programme along with the Bridging the Gap planning on going?’ And so there was never this barrier mentoring programme with Victoria University law to doing things and that made a huge difference because students which is run by the Wellington Young Lawyers’ if they didn’t limit my expectations, then I didn’t know Committee. how to limit my expectations.” “As a Pacific Island student coming to New Zealand When she was 21 Vanassa went to England and her and to Wellington it was really daunting and the law aunty was shocked that her father hadn’t come with school process was particularly scary.” her and had allowed her to go to the other side of the As a mentor in Bridging the Gap Ms Chand is con- world on her own. cerned that in the 18 months she’s been involved, she “Vanassa is very inspiring. She is a single mum with has seen few Pacific students at functions and events. two daughters, and when she was young she was told She believes the differences in cultural outlooks mean she wouldn’t do much in life and that she didn’t have a encouraging young students to bring a support person long life expectancy,” says Henderson Reeves Director or people is important. Jeremy Browne. ▪ “If you don’t know what’s expected and you’re still

19 September 2018 · LAWTALK 921

University, the programme targets Pacific youth aged 16 to 26 with entrepreneurial aspirations. It combines flexible tertiary education with support to develop business ideas and accelerate commercial growth. “It’s very very cool. Hatch called for applications from Pacific young people who either had a business idea, had already just started a business, or wanted to start a business. They selected six applications and the idea of the programme is to provide them with practical business resources so they’re setting up properly and they’re thinking about the right things,” she says. As a speaker in the business tax structuring masterclass, Ms Chand was able to give advice on how to efficiently set up a business and the pitfalls involved. “The wonderful thing about the programme is that it’s getting Pacific new or you’re learning how a society One outcome of her attendance people to think about all the other works, you will not automatically at Victoria University was that Ms compliance and real world stuff assume that you can take a friend Chand took the tax course taught that you need to think about. A lot along. Many young students wonder by the legendary Professor John of Pacific businesses fail because who they’re going to talk to if they Prebble. they don’t understand all the things go by themselves. “I was hooked. I decided at that they need to do. It was wonderful “Even with the Pacific Business point that I was going to do tax law. and they were absolutely inspiring Trust workshops that I’ve run, And after that I just made sure that young people.” people invariably bring friends or the rest of my degree was focused on Ms Chand was particularly their partners along. I did a tax doing things that helped with tax. impressed with the way the work- workshop in Wellington and there Tax law is very complex. There’s no shops were run, with a focus away were 17 people along, but out of fact scenario that’s exactly the same. from the traditional book learning the 17, ten were there to attend the You might apply the same section, approach. workshop and seven others had but if you don’t investigate the facts “I believe this works really well come because they came together. you won’t get the right answer. And I with Pacific people because they Understanding those cultural differ- think it means it keeps you thinking. want to know what’s going on, but ences is really important.” So I just really enjoy it.” they want to know in a non-academic Following stints at Inland way, in real understandable terms.” Double nominations Revenue, Horwath Wellington and Ms Chand is now turning her Arti’s work with the Pacific Business Ernst and Young, Ms Chand set up attention to other lawyers from Trust has seen her nominated for her own practice around four years Pacific countries in Wellington who the biennial awards programme in ago. At the beginning of this year she can bring their skills and energy both 2016 and 2018. This year she joined forces with Julie Crengle to to helping law students and new was one of three finalists in the become a partner in the boutique Pacific lawyers, as well as giving Pacific Women in Business category. Wellington law firm Crengle Shreves the Pacific legal community more The awards were held in July and & Ratner. visibility in the capital. The response are focused on celebrating success. In her work with the Hatch Youth she received when she ran a fund- The government-backed Pacific Programme Ms Chand is able to raiser to help with relief for Fiji after Business Trust was established in combine her passion for helping the devastating cyclone in February 1985, with the mandate of growing young Pacific people with her skills 2016 showed her that there is the Pacific businesses into sustainable, in tax law. Launched near the end of nucleus of a good community of viable and commercially successful 2017 as a partnership between the Pacific lawyers in Wellington, which enterprises. Pacific Business Trust and Massey bodes well for the future. ▪

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PEOPLE PROFILE Lawyer and journalist: the busy life and the many talents of Reina Vaai

BY NICK BUTCHER

were more suitably qualified, that tactic turned what felt like the Hereina Vaai is a busy person. She is a interview from hell into gold. Public Defence Service lawyer, and a tele- “They called me and said they loved how honest I was and vision journalist. offered me the job, and that’s how I got into practising law.” Better known as Reina, being on the move is a lifestyle she enjoys. To Reina it is The Public Defence Service work not tiring being constantly busy, it actually Reina Vaai is from South Auckland and works for the PDS in energises and encourages her to do more. Manukau. Like some other lawyers, the profession “I recognise a lot of the people I represent in court. We grew wasn’t top of her career list. She was admit- up in a similar environment. I was fortunate to have received an ted at the age of 28 in 2015 after studying education and have a family that encouraged me to pursue further at Auckland University. education because that was the only way to get out of this sort “I didn’t actually want to study or of cycle or environment,” she says. practise law. I wanted to write and to do For Miss Vaai, working in criminal law is a privilege because something creative. During my final year she gets to help people who are often desperate for assistance. at high school I was awarded a university “They’re not all nice but I do feel a sense of duty especially when scholarship but it didn’t have a journalism I see family members of people sitting in the back of the court or communications programme at the room with children of someone I am representing. That could time. It was suggested that I study law have been me, but I’m standing at the opposite end. I think crime because of this and I kind of just stumbled is a product of a lot of things, not just personal choice. I grew up my way through, then eventually started in a good family but I did live in both Mangere and Manurewa. work as a solicitor at Moala Merrick in I went to a decile one primary school where a lot of my friends' Manukau,” she says. older siblings were in prison.” The firm was on the hunt for a junior lawyer and Miss Vaai says she knew of Feelings of resentment because the reputation of Chris Merrick and now of her background District Court Judge Soana Moala who were It’s not uncommon for Reina to be treated as though she doesn’t the law firm’s partners. know what she is talking about. She sometimes feels like she is “I applied and it was actually the worst viewed as young, Samoan and incapable. interview I’d ever been through. They “They’ll ask where a real lawyer is. All of our clients are from asked me what my weaknesses were and I low socio-economic backgrounds so there is a lot of desperation. answered that I was probably not the right We get threats, including death threats, if I’m not able to get a person for the job. I’d already accepted good result for someone. There was one time when a lady told me during the interview that I wasn’t going she would stab me, once she is released from prison,” she says. to get the job and began asking them for For most people these sorts of threats would be enough to tempt tips so that I would do better in the next them into looking for less intimidating work, but Miss Vaai says job interview,” she says. she and her colleagues have proven coping strategies. While Miss Vaai appeared to be telling “We have a really good team and when we get back to the office, her prospective employers several reasons we all vent to each other. Counselling is also available and there why they should not employ her, even to is really good security at court. the point of saying the other applicants “We also laugh. You have to have a dark sense of humour to

21 PROFILE · PEOPLE September 2018 · LAWTALK 921

Miss Vaai says there’s plenty of reasons to keep representing people with legal problems. “As a Samoan, fighting for another young Samoan who has made a stupid mistake and helping this person to avoid prison time and turn their life around is very satisfying. For some people this would be difficult to relate to but it’s one of the main reasons I like this work and continue doing it. These moments make up for all of the threats and intimidation we get.” Racism If you thought her court work environment sounded tough enough, then consider the casual racism or unconscious bias that Miss Vaai has also had to tolerate. “I remember a particular time that I was walking down the hallway of court. I was carrying a jury trial gown because I was junior to my manager. One of the court staff stopped me and told me that I could not go where I was going. I was told ‘jurors had to go over there’. I explained that I was not a juror and then she asked me if I was do this sort of work. It’s essential and appearing as a defendant. That was during often people that work in the courtroom my first year of practice. I’d also get asked environment use humour to cope.” if I was an interpreter,” she says. It’s not uncommon to meet a lawyer who Miss Vaai wondered if it was just her is also a writer or journalist. Often these that was going through this but that wasn't skills merge seamlessly. The connection is the case. perhaps in the story telling, in court and “One of my Samoan male colleagues told on camera. me that when he was sitting in the back of a courtroom observing, another lawyer Tagata Pasifika approached him and said ‘court has closed Reina Vaai also works as a television jour- now, your matter will be called afterwards’. nalist for Tagata Pasifika, a Pacific news He was wearing a suit and had his brief- show on TVNZ. case and was treated like that. He told this She almost gave up law for journalism I do feel a person that he worked for the PDS. It’s as but reached a flexible arrangement with sense of duty if our suits, our gowns, our briefcases, the her employer at the Public Defence Service. especially when things that make us lawyers are easy to “I was close to resigning at the end I see family ignore when we look like the people who of 2016 but my manager offered me the members of are appearing in the dock.” chance to continue part-time. My manager people sitting Miss Vaai says in the beginning it did didn’t want to see me stop practising law in the back of annoy her having to explain or defend but also not miss out on journalism. We the court room her right to be there, particularly when still have this flexible arrangement and it with children of lawyers who were not from the Pacific works well,” she says. someone I am Islands didn’t have to. Miss Vaai is currently working on a doc- representing. “I quickly realised that the most effec- umentary about the long-time captain of That could have tive way of dealing with these biases is the Black Ferns, Detective Constable Fiao’o been me, but to explain or talk about it. People see the Fa’amausili. I’m standing at colour and don’t think that there is a lot of Despite some of the hostile attitude she the opposite diversity in the law profession, but there has to endure from some of her clients, end. is,” she says. ▪

22 LAWTALK 921 · September 2018 PEOPLE · PROFILE

PEOPLE PROFILE The Innovators: Helen Mackay, Juno Legal Director and lawyer

LawFest organiser Andrew King continues a series of interviews with key legal professionals with their innovation and technology stories.

What does legal innovation mean to you? To me innovation means looking with fresh eyes at the delivery of value by lawyers, which is far broader than legal services. The literal meaning of ‘innovate’ is to create a new process or idea and this is exciting when the practice of law has been slow to change. Lawyers need to better define their value proposition beyond giving legal advice. For me it includes critical thinking, complex problem solving and good judgement. The challenge for in-house lawyers is to better contribute these skills in fast-paced, demanding environments. They are increasingly working in agile environments and for companies that must innovate or die. It will take creative thinking and rigorous analysis for lawyers to disaggregate what they do and find new ways to deliver better outcomes and value for clients. What role does technology What pressures are organisations facing play in innovation? in the delivery of legal services? I see technology as enabling and supporting innovation Law has traditionally been a reactive and deadline driven by stripping out the inefficiencies and repetition that profession. This has led to the exponential growth of is common in legal work. Better collaboration, project in-house legal teams but it is not feasible to continue management and visibility are goals for most legal to expand. The law of induced demand says when a departments and there are some quite simple techno- resource is free the demand for it is infinite. Fees charged logical solutions that can help achieve these. provide a natural check on demand for external legal

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23 PROFILE · PEOPLE September 2018 · LAWTALK 921

services. For in-house legal func- in-house legal teams with similar issues jointly instruct tions with no internal charging work and share the cost. mechanism, this resource is seen as free and the demand is infinite. What opportunities has legal When everyone in an organisation innovation brought you? can instruct the legal team and there My current opportunity in leading Juno is a result of are no parameters on what requires agile thinking in the wider world of work as well as the legal review, legal teams are over- legal profession. The binary model of either employing whelmed and stuck in firefighting lawyers as fixed resources or using the contingent mode. A surprisingly low number capacity of professional services firms at premium rates of in-house legal teams have a has a new alternative of agile, on-demand resourcing to target operating model or guidance cover particular projects or needs with skilled in-house on when and how the legal team lawyers. should be instructed. Our message to the clients we work with is when What are some of your tips to legal teams train their internal cli- start innovating or developing ents to effectively use their services, an innovative mindset? the team is able to contribute far I think people worry that innovation has to be huge, more value to the organisation. An transformative and technology-based to count but in operating model and charter help my experience the teams that have gone the furthest to focus the internal legal team on over time have adopted an incremental approach and the areas of greatest importance and are constantly refining what they do. Design thinking enable them to have much better releases lawyers from their traditional critical mindset and conversations with their internal allows them to freely think about problems and potential clients. solutions. I have led design workshops with legal teams where the creativity and change appetite of lawyers has What developments do surprised their leaders. The key in any change process is to you see in how legal ensure people’s fundamental needs services are delivered? for control and inclusion are met. I think the question of ‘what are legal services?’ will continue to evolve. In Why is it important for most in-house environments these legal professionals to go far beyond the strict definition continue to learn about of ‘legal work’ and are increasingly legal innovation and multifaceted. Thinking about par- leveraging technology? allels in the accounting world, no The world is changing around large chartered accounting firm lawyers and many seem to think would describe their work as purely they can hold back the tide. The ‘accountancy services’. Legal work legal profession is one of the few will continue to be disaggregated that hasn’t yet been substantially and pushed out and down. New disrupted and the longer the status Zealand has been slow to benefit It will take quo remains, the bigger the poten- from the evolution of alternative creative tial impact will be. I think lawyers, legal services providers but we thinking and both private practice and in-house, are seeing more legal teams using rigorous need to carefully define what their legal process outsourcing (LPOs), analysis for value propositions are and how NewLaw firms and legal technol- lawyers to technology can help them deliver ogy providers and thinking much disaggregate better outcomes for their clients. ▪ more carefully about what to retain what they in-house and what to send out to do and find Andrew King  andrew@lawfest. external providers. Automation will new ways to nz is organiser of LawFest 2019, obviously be a game-changer and is deliver better which will be held in Auckland making significant progress. We are outcomes on 21 March 2019. Helen Mackay also seeing an increasing amount and value for will be one of the speakers at this of co-sourcing where two or more clients. event,  www.lawfest.nz

24 Asking for help is a sign of strength

Law is a fulfilling profession, but it can be a stressful one. If you want ideas on improving your work-life balance, make a start by engaging with our Practising Well resources at lawsociety.org.nz/practising-well

Healthy Mind • Healthy Body • Healthy Practice CREATING A JUST CULTURE September 2018 · LAWTALK 921

CREATING A JUST CULTURE

What has Bell Gully been changing Our key focus, when reviewing the firm’s policies and procedures, has been to ensure our culture is supportive and allows multiple avenues to raise issues and give in the largest feedback. We’re comfortable that we have, and have had for many years, robust policies and procedures in place to support our people. Our ongoing reviews acknowledge law firms? the need to continually improve and respond to the concerns of our people. We have engaged with our people on both new policies and revisions of existing policies, ensuring that we have a framework our people expect and as well as providing With a number of major profes- clarity for our people around procedures. sion-wide initiatives underway to We have revised our ‘inappropriate behaviour and confront and tackle workplace harassment policy (and complaint procedures)’, and cultural issues, individual legal surveyed all our people for their views on our flexible workplaces have also been making working practices. We have asked for feedback on changes. Between them, the 15 larg- our ‘host responsibility guidelines’ and our revised est law firms in New Zealand (by ‘relationships with co-workers and clients policy’. Our lawyer numbers) are the workplaces long-standing ‘code of conduct’ is also currently under of 27% of lawyers who work in firms review, as is our part-time working policy. with more than one lawyer. Each Our ‘peer support network’ has been revived, with 29 firm was contacted and asked if it partners and people trained by an independent external could respond to the following ques- consultant – a registered psychologist. This training tion: “What changes has your firm included skills around active listening, understanding made to its policies and procedures the support networks available to our people, and how since February 2018 to address the to assist and support individuals. The revised policy workplace culture issues which provides an outline on the role of peer support and have been identified in the legal details the resources and channels available (including profession?” the New Zealand Law Society’s range of services). All 15 firms responded to our In early 2018 we launched an employer brand exercise request. A word limit of 400 words facilitated by our HR and BD Directors – speaking to was set, but we have not edited the 100+ of our people and nearly all partners. Peer groups responses where this was exceeded. were asked to provide anonymous feedback on a range Responses are published in order of matters about their experience as an employee, and of receipt, with attribution to a any potential changes we could make. The feedback spokesperson where indicated by “What revealed a passionate and dedicated team – highlighting the responding firm. changes has a number of initiatives that focus on how we engage Ten of the firms belong to the your firm with and support our people. We plan to conduct an Large Law Firms Group Ltd. The made to its anonymous survey every 12 months to seek feedback group has advised that members policies and on our progress. have been working together on procedures Last year we introduced a partnership leadership the topic of safety and wellbeing, since February programme run by an external organisation, compulsory and has set up a group to facilitate 2018 to for all Bell Gully partners. This includes 360° feedback discussion and share ideas, initia- address the and input from around the firm. tives and policies to support each workplace We have reviewed our policies, procedures, assump- other in achieving the common culture tions and expectations in light of specific developments objective of ensuring that the firms issues which in the market – the NZLS Workplace Environment survey are places were all people feel safe have been and Dame Margaret Bazley’s report. The Managing and confident to perform at their identified Partner, HR Director and I facilitated a session at our fest, free from harassment (sexual in the legal partner conference to discuss the NZLS Workplace or otherwise). profession?” Environment survey, what we can learn from it and

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what our expectations are of each other as partners. and associated targets. professional life. We want to rede- The board and senior management have reviewed all • Provided staff and partners with fine what it means to be a leading recommendations made in the Bazley report – producing the opportunity to participate in law firm by providing our people a gap analysis based on our policies and procedures further training on sexual har- great work while allowing them to which is being used to create future action plans. assment and bullying, cultural also have exceptional lives away We communicate regularly with our people on all intelligence and unconscious bias. from the office issues through our People Updates (which I send) includ- We believe that our people’s back- ing the ongoing review of policies and procedures. We Richard Greenaway grounds, cultures, experiences and consistently receive positive and practical feedback on Chief Executive Officer. skills fuel fresh thinking, new ideas, these updates. This, along with many of the internal unique perspectives and insights initiatives we’ve put in place, assures us we are striving allowing us to continually develop to provide a safe place to work where all our people new and better solutions. To further can thrive. reinforce our commitment to diver- Tompkins sity and inclusiveness, Tompkins Anna Buchly Wake has signed an initial five- Chair of the Board. Wake year commitment with Rainbow Tick and are currently starting the journey with them to ensure we Tompkins Wake has continued on understand and follow best practice our journey to be an employer of as an inclusive workplace. Anderson Lloyd choice and a great place to work. We’ve had Board level discus- One of Tompkins Wake’s goals is to sion on the recommendations be a nationally recognised employer contained in the Bazley report and The workplace culture issues which have been iden- of choice. We recognise that in order ensured that there is a high level of tified in the legal profession since February 2018 have to not only achieve but to also sustain understanding and awareness that prompted much discussion between and among mem- this, our culture and the policies and the Board plays an important role bers of the board of management, partners and staff at initiatives that support it will be an in firm culture and that cascades Anderson Lloyd. Our CEO distributed the Bazley Report evolving and continually improving down to all partners and leaders in on its release date to all staff, who were asked to provide ecosystem, bound by a framework the firm. feedback to identify any areas for improvement in our that ensures compliance but remains As a firm we have a very clear firm. flexible enough to adapt and grow structure and the role of the Chief The partners and management of Anderson Lloyd with our workforce. Executive, Board and partners are believe it’s critical to have clear and robust policies and The publicity toward the legal well defined and understood but procedures that align with our values, underpinning a sector since February 2018 has only more importantly adhered to. culture that enables our people to speak up, be heard, strengthened our resolve and accel- and have action taken in response to issues raised. erated the work we had underway. Jon Calder Since February 2018 we have: Recent events and scrutiny of our Chief Executive Officer. • Reviewed and refreshed our workplace policies and profession have driven a review procedures, including making improvements to our of our policies not just to ensure pre-existing standalone workplace bullying and har- compliance, but to ensure that our assment policy and health and safety policies. people know that they have access • Introduced new questions in our next engagement to the right support and guidance Anthony survey enabling anonymous feedback on ‘feeling safe bound by a framework that defines at work’ and ‘seeing or experiencing unacceptable our culture and provides a safe Harper behaviours’. Our recent engagement survey provided environment for our people to be constructive feedback, and outcomes were work- their best. shopped with all staff. Our culture is something we guard Like other firms, Anthony Harper is • Extended our independent support services for staff and protect jealously, and our Zero concerned by the findings of Dame who may want to raise issues with an independent Harm programme extends beyond Margaret Bazley’s report. We are a firm party. health and safety to also encompass that is growing fast, and our policies • Commenced our second senior leadership programme, bullying and harassment and our and procedures have had to keep which supports the development of strong, val- Employee Assistance Programme pace with this dynamic environment. ue-based leaders in our firm. (EAP). EAP is an important element The report was a salutary reminder • Signed the NZLS Gender Equality Charter and in supporting our staff through the that workplace culture requires con- reviewed our diversity and inclusion programme challenges of everyday personal and stant monitoring and review, and a

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transparent and well communicated set of procedures Culture and processes. We are proud of our culture. We Using Dame Margaret’s methodology we examined support it by a number of modern our culture. practices, as outlined above. We never stop listening to our team, Composition of the firm seeking regular feedback and opin- We now have 30 partners and a total team of over 130. ions through initiatives like “Let’s do A significant proportion of our senior team are women. Lunch” and “Have a Chat”. Our firm reports on gender issues and pay equity and As a direct result of the cir- we are a signatory to the Law Society’s Gender Equality cumstances giving rise to Dame Charter. Gender equality is an ongoing issue and we’re Margaret’s report we sent an email working with our team to ensure transparency and to all staff, reminding them of the accountability. above policies and of the processes In 2012, we had no female partners. By 2018 we had and facilities available to any staff nine. In this time frame, we increased the partnership who have concerns. We remain open by 18 and 56% of these appointments were women. to suggestions from staff and from our industry as we strive to con- Recruitment model tinue to provide a safe and healthy Anthony Harper recruits solely on merit. Our partners working environment. and HR team collaborate throughout the process to ensure a diverse pool of outstanding talent and that Malcolm Hurley unconscious bias is managed effectively. Managing Partner. Our summer clerk intake is relatively small but we offer real experience, with direct access to partners who work with the clerks to ensure they are immersed in the business of law. The clerks are given budgets, real matters on case files and are accountable for the quality of their Chapman work. Our senior staff also give real-time feedback and encouragement. Tripp Management practices There are a number of policies and practices in place Chapman Tripp is committed to to promote an inclusive, fair and cooperative culture. maintaining a safe and healthy We try hard to foster a healthy work/life balance. workplace and fostering a culture Where possible we include our staff ’s family in activities of wellbeing where everyone can taking place outside of work hours, such as our client/ have their say. family days at Pop-up Globe in Auckland and Summer Over the last six months we have Theatre in Christchurch. added new initiatives to our well- Employee Assistance Programme: We provide access being strategy and shared details to a confidential hotline which offers help and advice across the firm. Our wellbeing to counter stress, relationship issues, grief and trauma, strategy outlines the steps we will whether work related or personal, and support is avail- take over the next two years to able for any critical incident. grow wellbeing at Chapman Tripp Working hours: We try, where possible, to match and help all our people thrive. individual’s needs to our team’s requirements. Currently, Following the release of the Bazley 19 team members work part-time, two work as part of report we are finding ways to talk a job share and a number of staff have flexible start with everyone to identify further and end times. improvements we can make. We do not “leave our jackets on our chairs, computers We have refreshed and updated on” – instead our team leave when they have finished our anti-bullying and harassment for the day. This is not only encouraged but expected. policy and shared this across the Harassment and Bullying policy: We do not toler- firm. We have drafted a relation- ate bullying or harassment. There is a policy in place ships at work policy and are seek- that clearly describes what this constitutes, and also ing feedback on this currently. We lists the complaints process and respective rights and are also drafting new alcohol and responsibilities. whistleblower policies as well as a

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Code of Conduct. form and that complaints will be We are also reviewing our pro- Simpson handled appropriately, fairly and cesses for dealing with any bully- promptly. ing and harassment complaints Grierson Continued dialogue with our or concerns, and have trained 21 people on these issues is important support people across all roles and to keep day-to-day activity in step levels who are a point of contact The industry issues brought into with our values and culture. It helps for anyone who wants to talk about the spotlight this year served as a to ensure our policies are effective any concerning behaviour including reminder for us to continue chal- and supports ongoing efforts to bullying and harassment. lenging our assumptions around maintain a safe and enjoyable We have reminded everyone internal culture and attention to environment for all our people. of the other internal and external staff welfare. The industry issues show that support channels available to them Even best practice policies can fall every firm needs to embrace open for any concerns they may have. flat without a solid cultural founda- communication and have a genuine Everyone is very clear about our tion, so our focus on staff welfare willingness to listen, and respond to expectations and that there are emphasises the need to have an valid concerns with positive change. consequences of not maintaining inclusive and positive culture that We are committed to continue doing the standards we set. reflects our values. that. We have been running workplace Since February 2018, we com- psychological health training for pleted a review of our existing Anne Callinan all our people leaders since March, anti-bullying and harassment pol- Simpson Grierson Chair. giving them the skills to identify icies and procedures – examining issues and help promote psycho- them in line with best practice logical wellbeing at work. and current guidance on diversity, Our people have also had the inclusion and employee wellness. opportunity to hear from work- That review asked a cross-section Duncan place behaviour and mental health of people across the firm if our bul- experts to learn how we can work lying and harassment definitions Cotterill together to ensure we have a culture and reporting procedures met their that does not tolerate bullying and expectations. It also involved input harassment in any form. Further from an external expert. Duncan Cotterill has made a number preventing bullying and harassment Following the review, we updated of changes to its policies and pro- workshops are now being run in all our bullying and harassment cedures since February 2018. In this offices. prevention policy and guide, and regard it has been beneficial to be We have conducted alcohol arranged for formal training to be part of the Large Law Firm working awareness training across the firm, carried out as a refresher for our group on safety and wellbeing. This and last year introduced a no-alco- harassment support team and with has been helpful in shaping and hol policy in working areas. all of our partners. updating our policies including We are running unconscious bias We also strengthened our whis- those dealing with bullying and training to help people become tleblower service by providing an harassment, alcohol and drug and aware of any biases they have additional, third party, option for relationship policies. and learn to be more accepting of our people to confidentially raise The firm is also widening chan- others. concerns. nels for the reporting of bullying We will hold Wellbeing focus Based on the feedback from the and harassment including the groups soon so everyone has a review process, I feel positive that introducing of an employee rep- chance to tell us what else we can our people have a legitimate voice, resentative committee. Duncan do to encourage holistic wellbeing and that they enjoy and are com- Cotterill recognises the obstacles to at work. fortable working here. reporting by victims and is taking We believe these new initiatives Since conducting this review we steps to provide safe options for will make a real difference to have also increased our communi- reporting. We have greater and creating an inclusive firm where cations to staff around these issues regular open staff communications everyone can thrive both inside and raised the profile of our policies and updates on what we are doing and outside of work. and support services. in this space, including the manag- Our long-standing policies make ing of any of our own issues and Nick Wells it absolutely clear that bullying and the importance of creating a safe Chief Executive Partner. harassment isn’t condoned in any environment.

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We have improved our induction programmes for all Society, now have an opportunity new staff including summer clerks. We have greater to work together to create lasting awareness and training at a partner and board level and and positive change in our firms bullying and harassment is now reported separately today and for future generations of from other health and safety issues such as accidents. lawyers and everyone who works There is a greater awareness around responsibility when in the sector. hosting staff and clients. It is our hope the increased public The report of Dame Margaret Bazley has provided a awareness and current attention on checklist of other recommendations that our board and the legal sector results in a better human resources are working through to determine understanding of just how dam- what else can be done to ensure that Duncan Cotterill aging bullying, harassment and provides workplaces where all of our people feel safe and discrimination are. confident to perform at their best, free from harassment, We also believe it is important sexual or otherwise. not to lose sight of the support that needs to be given to the employees in the legal sector, and in New Zealand workplaces in general, who have experienced bullying, Lane Neave harassment and discrimination in the course of their employment.

The NZLS Workplace Environment Survey published Andrew Shaw earlier in the year, and the more recent Dame Margaret Managing Partner. Bazley Report, help shine a light on behaviours, processes, attitudes and policies in the legal industry that need to be addressed and are simply unacceptable in any workplace. While large sections of the Bazley report are specific Kensington to Russell McVeagh, our partnership has reviewed the recommendations and considered the learnings for all Swan law firms in New Zealand, and in particular for Lane Neave. Lane Neave’s Managing Partner and Chairman used Kensington Swan is committed to the release of the Bazley Report as an opportunity to rein- having a positive working envi- force the firm’s zero tolerance for bullying, harassment ronment, free from harassment and discrimination. This message was distributed to all and bullying. Our focus has been staff, and the firm’s Managing Partner and Chairman on engaging with our staff and have committed to discuss this further at regular team partners on these issues. That has and location meetings. created the opportunity for empow- As part of our rolling review of policies, all of the ering conversations both with and key people policies have been reviewed in the first amongst staff. half of this year and our bullying, harassment and Our Board and CEO have made discrimination policy now includes a process diagram it clear to the business and in the for handling complaints, as recommended by the Law media that we have no tolerance for Society. This provides staff with a clear understanding bullying or harassment of any kind. of the measures we have in place to prevent bullying, With other large law firms, we harassment and discrimination; and how they can have engaged with the Deans of access help if required. New Zealand’s law schools to ensure People are the heart of successful organisations, and the safety of summer clerks and that is particularly true of law firms. Lane Neave is, graduates as they move into the therefore, as committed as ever to being a people-centred profession. firm and continually seeking to improve in this respect. We are reviewing our policies We will always work hard to identify areas that we can around anti-harassment, anti-bul- focus on to enhance our firm’s culture and the wellbeing lying, and alcohol. We are also of our staff. engaging with staff and partners We believe that all law firms, along with the Law to ensure we all are clear about our

30 LAWTALK 921 · September 2018 CREATING A JUST CULTURE

shared values in this regard, with a view to seeing socially. that formally reflected in any revision to our policies Diversity and inclusion are part or practices. This engagement is being facilitated of our culture. We are commit- by professionals from the Sexual Abuse Prevention ted to ensuring that everyone at Network. Buddle Findlay is treated fairly, We have engaged the Sexual Abuse Prevention Network equitably and with respect. We do to provide harassment prevention and response training not discriminate nor tolerate dis- for all staff, starting with our partners. All partners and crimination on the basis of gender senior management, together with approximately 80% identity, ethnicity, colour, race, of staff, have taken part in these sessions. marital status, sexual orientation, We have added to our existing anti-harassment age, family status, employment contacts in our offices, and provided them and our status, faith or political opinion. D&I People team with additional training to ensure they is a standing Board item at Board are ready to provide the necessary support should that meetings. be required. We have a number of robust HR We are actively participating in the public conversa- policies and procedures which tion to build a better and safer legal profession. To date emphasise the importance of in this regard we have done the following: having a transparent, caring work • Hosted an event facilitated by Linda Clark and environment that encourages staff featuring a panel including Jan Logie MP, Fiona to talk about harassment or bullying McNamara (SAPN), Superintendent Karyn Malthus, without fear. and Wellington councillor Fleur Fitzsimons. In light of the workplace culture • The CEO and a number of partners and staff have issues identified in the legal profes- endorsed the #metoo pledge launched by Zoë sion, we: Lawton. • updated our HR policies to ensure • Partner Hayden Wilson has participated in an inter- they adequately support our view covering these issues with Noelle McCarthy and people and reflect the type of Zoë Lawton on RNZ and The Spinoff. business we want to be; We and the profession have more to do. We look forward • asked one of our employment to further engagement within the business and with partners to undertake a specific clients and the broader profession. review of the policies and procedures and report back to the Charles Spillane Board; Chief Executive. • identified some new HR policies that are being considered for implementation, eg, Code of Conduct; • reminded our staff about how Buddle Findlay they could find the policies; • updated certain policies such as designated support person and We are a people-centric business and we value our the people our staff can contact people and their careers. Our people and culture are both internally or externally if an important point of difference and under our strategic they need to; framework (adopted in 2017), culture is the first of our • set up external help lines for staff five strategic priorities. to use if they are concerned about In 2017 we commissioned an external survey to anything; better understand what else we could do to enhance • held a series of national fora for our culture and to be more diverse and inclusive. The staff to comment specifically survey was conducted by an external party, where 60 on safety and wellbeing at the of our staff (nationally) were interviewed. The results firm and things we could do to were very positive and we are satisfied that we pro- enhance safety and wellbeing (we vide a work environment where our people feel safe, are currently implementing ideas included and respected. The most common terms used raised in those fora); to describe Buddle Findlay were friendly, caring and • set up regular meetings with supportive both within a working environment and representatives from other large

31 CREATING A JUST CULTURE September 2018 · LAWTALK 921

law firms to share information Māori Law Students Association • An independent audit by DLA in relation to HR policies and to better understand the aspira- Piper Asia Pacific risk team on initiatives; tions of Māori students and to the adequacy of existing poli- • met with the New Zealand law set up a mentoring programme. cies, standards and systems and deans and major law firm repre- We support Wear It Purple Day to identify gaps; and to address sentatives to discuss what law and IDAHOT (International Day these through the development firms are doing in response to against Homophobia, Transphobia or revision of new policies, stand- workplace culture issues. and Biphobia). We completed an ards and systems. internal D&I survey to better • L&D programme for partners and Philip Maitland understand our staff views on senior lawyers to be expanded to Chief Executive. the D&I initiatives, we had a good include a far greater emphasis on participation rate firm wide, 40% management skills. of our partners participated, 60% • Annual compulsory ethics train- of our lawyers and 45% of the ing for all staff. Business Services staff. Unconscious bias training as part DLA Piper • Mitra Janes, global Head of of induction for partners and staff Diversity and Inclusion, visited at all levels. New Zealand in March and Set out below are the activities we presented compulsory training Global Partner Conference, at DLA Piper New Zealand have sessions to all staff on uncon- Paris 7 – 9 June 2018 undertaken since February 2018 scious bias. New Zealand partners attended the following the Russell McVeagh • LAW (Leadership Alliance for global partners conference. Sessions issues becoming public. Women) has arranged self defence included In addition to our existing classes for male and female staff • Mental health panel discussion global policies and initiatives to in both offices. led by affected partners. keep people safe and to provide • Attendance at Pride Parade with • Diversity and inclusion global an environment where people are client, Auckland Council. initiatives. accepted, included and can progress, the following activities have Health & Wellbeing Client Meetings been undertaken in New Zealand in • Staff fortnightly Friday evening We have presented, at their request, the six months since February 2018: drinks (run from 5-7pm) must on our policies and initiatives to the have a partner in attendance general counsel of clients, includ- D&I policy (partners are rostered to attend ing Auckland Council, Fonterra • Diversity and Inclusion and do not partake in alcohol). Co-Operative Group Ltd, Wellington Committee launched four groups: • Compulsory bullying, sexual City Council and Westpac. Flexible Working (Flex), Baby harassment eLearning rolled Boomers, Millennials, Gen-X out to all staff and included in Legal Advice (BMX), Heritage and Identity all induction training. DLA Piper New Zealand has taken Project (HIP) and IRIS. IRIS is • Reminders to staff on the availa- legal advice from Paul Collins, bar- DLA Piper’s global resource group bility of our EAP services. rister, Shortland Chambers, on our for its lesbian, gay, bisexual, and legal obligations to report to NZLS transgender employees and Risk & Compliance any serious misconduct. allies. Each committee comprises • Attendance at the Dean of the partners and staff across the firm. Law School meetings with the Gender Pay Gap Our staff actively participate in large firms to discuss policies and The HR team completed a gender our committees. Plans and activ- approaches to keep graduates safe pay gap analysis in July 2018. In ities underway including Te Reo within our environments. alignment with Statistics New lessons, staff presentation ‘The • Attendance at the Large Law Zealand, we consider that median Why, What, and How of LGBTI Firms’ forums to ensure we are hourly earnings is the best measure Workplace Inclusion’ facilitated providing a safe environment. for calculating the gender pay gap. by Pride In Diversity, a cross • Margaret Bazley Review. DLA Our firm wide gender pay gap is generations panel discussion, Piper New Zealand reviewed 10.7%. For legal staff only (exclud- ‘Around the World Morning Tea & the recommendations made ing partners), the gender pay gap is Competition’, and an Intercultural in the ‘Independent Review of 8%, while for business services it Calendar of events. We have also Russell McVeagh’, and is currently is 17.3%. On the “like-for-like” basis, engaged with Ngā Rangahautira/ preparing: gender pay varies from 3% to 10%.

32 LAWTALK 921 · September 2018 CREATING A JUST CULTURE

Differences are being currently firm events policy, health and safety Programme makes confidential analysed by our HR Team. policy and a flexible working policy. counselling available to staff for We also have a code of conduct to free, should they require support Martin Wiseman guide our people and confirm our for work or non-work related Managing Partner, New Zealand. expectations of behaviour within issues. our firm. They have all been recently • But like all businesses, we acknowl- reviewed and refreshed. edge that we are on a journey and We also have programmes and no-one is perfect. We have taken initiatives to support our culture the recent scrutiny of our profes- MinterEllison and our firm’s values including: sion as an opportunity to continue • an Empowerment, Diversity and the conversation with our people RuddWatts Inclusion group comprising repre- and further strengthen our culture. sentatives from all teams within This is a journey we will continue. our firm. The recent attention on harassment • an annual wellbeing programme and bullying in the legal profession is providing seminars, training and deeply concerning, and it is an issue support on topics like mindful- that we at MinterEllisonRuddWatts ness, stress management, nutri- Wynn have, and continue to, work hard tion, resilience, exercise, mental to prevent. well-being, etc. Williams Building a safe, diverse and inclu- • our AnchorME Programme sive workplace culture has been a which trains staff and partners priority for MinterEllisonRuddWatts as ‘anchors’ to provide assistance Wynn Williams has always been for well over a decade. However, to staff facing challenges at work highly focused on having a safe since February we have actively or home, acting as a conduit workplace for all its staff and reviewed and strengthened our between our people and the var- protecting them against any commitment, including a unani- ious avenues for help available behaviour that is not consistent mous resolution from our partner- within the firm or externally. with the firm’s values. It has had ship reconfirming our no tolerance • unconscious bias and leadership formal policies in place for many for harassment stance. training for all of our senior lead- years. We believe that while having the ers and managers. In 2016 and 2017, in addition to right policies and training in place is • anonymous staff engagement formal policies, the partners under- necessary, it’s not enough. The real surveys with anonymised results took a strategic review focused measure of a workplace is its culture shared with staff before address- on ensuring that the partnership and how people behave. ing any themes or issues raised. continued to maintain the highest Our work to create a people first • compulsory training delivered via standards culturally. As part of culture underpins our vision of Safetrac (eg, anti-harassment and that the review partners adopted being New Zealand’s best law firm. anti-bullying courses) which all of a Partners Charter called “The We believe this vision requires us to: our people must complete when Wynn Williams Way”. The Charter • value and empower diversity; and they join the firm and regular contains 12 basic premises that • collaborate effectively to realise refreshers. are seen as fundamental to being its potential. • effective management and dele- a Wynn Williams partner and there These principles have helped us gation training for partners and are consequences for not adhering achieve commercial success for our lawyers. to these standards. One of the com- clients, while creating a workplace • proactive campaigns throughout mitments is that a “Wynn Williams where our people can thrive and the year targeting specific issues Partner: Listens with an open mind, give their best with confidence. or causes. For example, we respects diversity, and treats all This has provided assurance in recently delivered a ‘Shout Out/ partners, staff and clients with responding to the challenges cur- Speak Out Campaign’ to remind respect and courtesy whether or rently facing the profession. everyone how important it is not they are present”. There is also Fortifying our culture, we have to both recognise the positive a commitment to act honestly, eth- long had key policies in place, contributions made by people ically and in a professional manner for example an Empowerment, and feel empowered to speak in all dealings with partners, staff, Diversity and Inclusion strategy, an out if unacceptable behaviour is and clients. anti-harassment and anti-bullying experienced or witnessed. Since February 2018 the firm has policy, alcohol and drugs policy, • our Employee Assistance again undertaken a further review

33 CREATING A JUST CULTURE September 2018 · LAWTALK 921

of its policies to ensure they are fit for purpose. This challenge every part of our manage- review ensured that any inappropriate conduct or ment practice to ensure our people harassment of any kind within the firm is not to be feel comfortable and skilled to call tolerated, and that there are multiple avenues to deal out and constructively challenge with any issues that do arise. Further, the review also unacceptable behaviour. confirms the approach adopted by the firm as to how it We have brought in some outside deals with any inappropriate client conduct to ensure expertise to help, including HR sup- that all employees feel safe and comfortable carrying port and specialist cultural transfor- out their work with persons external to the firm. mation support – Dame Margaret recommended in her Review that Philip Maw we bring in the right expertise to National Managing Partner. assist the cultural change. Over the next six months, we have identified three key phases for implementing the cultural change recommendations, some of the Russell McVeagh recommendations can be put in place very quickly, but others will take longer. The Board and partners have already commenced imple- We have committed to having our menting the recommendations from Dame Margaret’s progress independently reviewed as Review. Some of the things that we have already started recommended by Dame Margaret. In work on include: addition to this, the board will pro- a A review of our governance structure and management vide a public update on our trans- practices. formational change programme in b An intensive coaching and leadership programme the first quarter of 2019. has commenced with partners led by an independent expert who has a mandate to drive behavioural Malcolm Crotty change. Chair. c We are committed to updating a number of policies including the use of alcohol, sexual harassment and bullying policies, in line with best practice across both the corporate and public sectors. These policies will be developed in collaboration with our people, and will Meredith contribute to our work to develop a code of conduct for all employees and partners. Connell d Reviewing our organisational vision and values to ensure a safe and collaborative culture that is sustained in the long term. The existing policies and proce- e We will also be adopting a clear policy with respect to dures Meredith Connell had in the actions that must be taken regarding references place covered the types of work- and continued association in the situation where a place culture issues that have been practising lawyer is the subject of a complaint and the subject of public discussion. departs the firm. While it is pleasing our policies f A People and Transformation Committee has been and procedures were appropriately established and a joint female chair has been appointed in place, the far more important to the Succession and Admissions Committee. aspect for Meredith Connell is The Board and partners fully accept Dame Margaret’s how those policies and procedures findings and are committed to implementing all of her are reflected in the firm’s culture. recommendations in consultation with our people. In Culture eats policy for breakfast – the coming months, we will be asking staff to work with and we are really proud of the pos- us to re-establish a great culture at Russell McVeagh itive, collegial, collaborative, and and it is crucial they are part of this process. At the non-hierarchical workplace culture same time, every single one of our people practices we have in our organisation. That will be reviewed over the coming months, to make said, there is always opportunities sure they form the foundations of an environment for improvement and obviously in which our people feel supported to do their best we will continue to work hard to work and succeed. For example, we are determined to identify where we can do better. ▪

34 LAWTALK 921 · September 2018 CREATING A JUST CULTURE

CREATING A JUST CULTURE Women lawyers plan wide-ranging Gender in the Law report

BY ANA LENARD

when thinking about how to tackle the difficult and A group of women who are law- longstanding problems in the profession. yers – from the New Zealand This project is not affiliated with any particular organi- Women’s Law Journal – Te Aho Kawe sation or sector of the profession. The idea is to encourage Kaupapa Ture a ngā Wāhine, and the free and critical engagement with the issues. The organisers Auckland, Wellington and Otago are pleased to see various initiatives being undertaken Women Lawyers’ Associations – by firms, however, they are conscious that staff in firms have kicked off a project to engage cannot necessarily contribute with as free and radical all people connected to the legal ideas as they might like when the process is bound up profession about workplace expec- in their employment and advancement. This is why it is tations, sexual harassment, bullying vital to have a process that stands outside the traditional and gender equality. Everyone self-regulatory structure of the Law Society and firms. Many of the issues in the profes- involved with The success of the project will be measured by the sion have already been discussed or the legal extent of participation, and the response from stake- addressed by other initiatives, with profession holders once it is published. In particular, we will be possible solutions being formulated has important keeping an eye out for uptake of the ideas. at the firm or Law Society level. This ideas for how Views will be gathered through workshops around is important work, but everyone the profession the country and through the website where people involved with the legal profession can change. can leave named or anonymous comments on threads has important ideas for how the Lawyers, covering different topics. Comments can also be sent profession can change. Lawyers, non-legal privately to the coordinators by email. More information non-legal support staff, law stu- support staff, is available at the website www.genderlawreport.co.nz and dents, academics and non-practising law students, the organisers can be contacted on genderlawreport@ lawyers are all encouraged to have academics and gmail.com. ▪ their say about possible solutions to non-practising the difficult and longstanding issues lawyers are all Ana Lenard is one of the Editors-in-Chief of the in the legal profession. encouraged to New Zealand Women’s Law Journal – Te Aho Kawe A report will be produced col- have their say Kaupapa Ture a ngā Wāhine. lecting everyone’s ideas, which will then be passed on to the New Zealand Law Society, Minister of Trusted practice management Justice, law firms, law faculties and other interested and related software for NZ lawyers organisations and parties. Easy to learn, easy to use. Save time and There has been good documenta- ! tion of the problem through other increase profits. That’s what users say forums, so the focus of this project New: Document management & Internet banking. Free installation and is on capturing as many creative training. Visit our website for testimonials from firms just like yours. options for change as possible. The report is aimed at being a useful www.jpartner.co.nz [email protected] 09 445 4476 JPartner Systems Ltd resource for these organisations

35 CREATING A JUST CULTURE September 2018 · LAWTALK 921

CREATING A JUST CULTURE

Update Keeping Track Some measures at 11 August 2018

Sexual harassment concerns to be raised and remedied. and bullying a In a statement on workplace New Zealand-based lawyers: focus for lawyers bullying and harassment, WorkSafe 12,965 around the world has said it will always have a role in Women: 6520 (50.3%) (no change supporting harm prevention activ- from 11 July) Sexual harassment and bullying in ity, although its investigation and Men: 6445 (49.7%) the legal profession was a major enforcement activity is risk based Lawyers in multi-lawyer firms: topic of discussion throughout the and targeted at the highest risks 7672 American Bar Association annual and harm. Partners and directors: 2884 meeting in Chicago in early August, “This means we will typically only Women partners & directors: 923 New Zealand Law Society President investigate bullying and harassment (32.0%) (up from 31.3% at 13 April) Kathryn Beck says. claims where there is diagnosis of Men partners & directors: 1961 Ms Beck attended the conference serious mental harm. This is consist- (68.0%) and said it was clear that lawyers in ent with the approach we take to all Employed lawyers: 4788 most of the other jurisdictions were risks and harms notified to WorkSafe.” Women employees: 2923 (61.0%) confronting the issue “although none WorkSafe says prosecution under (down from 61.3% on 13 April) have had the level of sustained media the Health and Safety at Work Act Male employees: 1865 (39.0%) scrutiny that the New Zealand legal 2015 requires the elements of the In-house lawyers: 2880 profession has gone through”. Act to be proven beyond reasonable Women in-house: 1769 (61.4%) She said many faced the same doubt and for there to be a public (down from 61.6% on 13 April) issues of under-reporting and sys- interest in the prosecution occurring. Men in-house: 1111 (38.6%) temic power imbalances. “This is a higher standard than is Barristers in practice: 1387 “Like us, they have reached required for a successful case under Women barristers: 549 (39.6%) (up the conclusion that a regulatory the employment relations legislation. from 39.5% on 11 July) response alone will not achieve Typically we prosecute around 1% of Male barristers: 838 (60.4%) the culture shift that is required to all matters brought to our attention. Queen’s Counsel in practice: 119 make a difference and are looking at While WorkSafe has investigated Women QCs: 23 (19.3%) other ways to influence and educate nearly 10% of bullying cases we have Male QCs: 96 (80.7%) the profession. It was interesting to not yet prosecuted any matter.” Signatories to Gender Equality hear from jurisdictions at different Noting that, at present, bullying is Charter: 60 (up from 54 at 11 July) stages on the path to creating a safe, “a very small proportion” of issues Signatories to Gender Equitable respectful and inclusive culture for raised with WorkSafe, it says it is Engagement and Instruction the legal profession. We are ahead of an emerging issue. Policy: 39 (no change from 11 July) some and following others but the In the past four years WorkSafe willingness to share experiences and says it has had 125 recorded cases Help make a difference: Commit resources was universal. It gave me that indicate bullying, out of over to the Gender Equality Charter. enormous hope for all members of 10,000 health and safety incidents Email womeninlaw@lawsociety. the global profession.” or events over the period. org.nz with the subject line Sign “We investigated 11 of the 125 Me Up. The Gender Equality WorkSafe outlines ... and nearly half (57) were either Charter and information on how approach to bullying referred to a more appropriate to sign up to it, can be found at and harassment agency (ERA, Police, other) or lawsociety.org.nz under Law referred to the PCBU to self-manage.” Society services, in the Women WorkSafe says workplace bullying WorkSafe also has a number of in the Legal Profession section. and harassment allegations or supporting resources for businesses If your organisation, firm or concerns often involve employ- and workers dealing with workplace chambers would like to adopt the ment relations issues and the bullying concerns through its Good Gender Equitable Engagement Employment Relations Act 2000 and Practice Guidelines to Preventing and and Instruction Policy or find out Employment Relations Authority Responding to Bullying at Work guide more information, please email are often the best place for these and its bullying prevention toolbox. [email protected].

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Your generous donation will be acknowledged on all our social media platforms. COMPANY LAW · UPDATE September 2018 · LAWTALK 921

UPDATE COMPANY LAW TheAutumn Tree appeal – The Court of Appeal clarifies important principles of company contracting

BY JOHN LAND

on the High Court of Australia decision in The Court of Appeal in Bishop Warden Property Holdings Ltd Northside Developments Pty Ltd v Registrar- v Autumn Tree Ltd [2018] NZCA 285 has confirmed the danger of General (1990) 170 CLR 146. assuming that a single director of a company has authority to The Court of Appeal, like Hinton J, con- contract on behalf of the company (except in the case of a company cluded (at [50]) that “One of two directors of that has only one director). a property development company does not In LawTalk 920, I discussed the first instance decision of Hinton customarily have authority unilaterally to J (see “Autumn Tree – The dangers of assuming you can safely enter into a significant property transaction.” contract with a single director”, LawTalk 920, August 2018). The Section 18 did not therefore assist Bishop Court of Appeal has now issued its decision in an appeal against Warden and the agreement was not binding. the High Court judgment. The Court of Appeal judgment confirms the decision and reason- Interpretation of proviso ing of Hinton J in relation to the main issue in the case – namely Although not essential for its decision, the the limited customary authority of a single director acting alone. Court of Appeal went on to discuss the However, the Court of Appeal departs from Hinton J in its correct approach to interpretation of the interpretation of the proviso to s 18(1) of the Companies Act, a proviso to section 18(1) which is relevant provision of some considerable importance in assessing the validity where one of the subparas of section 18(1) of contracts entered into by a company. does apply. Here the Court of Appeal took The Court of Appeal also adds comments of interest in relation a different approach to Hinton J, and to to the validity of transactions entered into in breach of the rules some Australian authority (such as Bank relating to major transactions (s 129) or in breach of the director’s of New Zealand v Fiberi Pty Ltd (1993) 14 duty to act in the best interests of the company (s 131). ACSR 736 (NSWCA)). The main issue concerned whether one of two directors of a Section 18(1) provides that the company property holding company (Autumn Tree) could be said to have may not assert certain matters against a apparent authority to enter into a contract to sell the company’s person dealing with the company (such as property. Was the fact that the director (“Tina”) was held out to non-compliance with the company’s consti- be a director enough to amount to apparent authority to contract tution, or the lack of authority of a corporate on behalf of the company? agent who has apparent authority to bind Bishop Warden, which alleged it had a contract with Autumn the company) unless the proviso applies. Tree, sought to rely on s 18(1)(b) and (c) of the Companies Act. For example, if a party to a contract with However, both of those provisions could only assist Bishop Warden a company could otherwise rely on appar- if it could show that the contract was within the customary ent authority in accordance with s 18(1)(c), authority of Tina as a director of Autumn Tree. the proviso will defeat that reliance where On this issue, the Court of Appeal’s reasoning is essentially the contracting party knows about a defect the same as that of Hinton J. The Court notes (at [27]) that “the in actual authority or in some cases where customary authority of one director of a board acting alone (as the contracting party has constructive opposed to a sole director) is very limited” and in particular relies knowledge of the defect.

38 LAWTALK 921 · September 2018 UPDATE · COMPANY LAW

There has been some inconsistency The court noted the intention behind the in the case law as to when constructive proviso was to change the common law so knowledge of a defect is enough for the that constructive knowledge of a defect proviso to apply. The wording of the pro- would not be fatal to a third party’s attempt viso suggests that a person’s constructive to enforce a contract. That intended law knowledge will defeat reliance on apparent reform would be undermined if the authority where that constructive knowl- proviso applied where a third party had edge occurs “by virtue of his or her position constructive knowledge of a defect aris- with or relationship to the company”. ing out of just the particular transaction. At first instance, Hinton J thought that Accordingly, the Court of Appeal endorsed even if Bishop Warden could rely on s 18(c) the approach of Smellie J under which a there was a strong case that the proviso contracting party would only be affected to s 18 would apply to defeat Bishop The main issue by constructive knowledge of a defect in Warden’s claim on the basis of construc- concerned authority where the party had an “ongoing tive knowledge (at [66]). In my previous whether one of relationship” with the company. article, I suggested that this part of Hinton two directors In the absence of an ongoing relationship J’s judgment could not be reconciled with of a property with the company, a contracting party’s the leading case on the application of the holding ability to rely on the apparent authority of proviso, Equiticorp Industries Group Ltd v The company... a corporate agent will only be defeated by Crown (No 47) [1998] 2 NZLR 481 (at 722-723). could be actual knowledge of a defect in authority. said to have However, the Court did note (at [72]) that Equiticorp approach apparent “wilful blindness” would amount to a form still correct authority to of actual knowledge. The Court of Appeal has now confirmed enter into a This approach to the proviso undoubt- that the approach taken by Smellie J in contract to sell edly provides more protection for parties Equiticorp remains the correct approach the company’s contracting with a company and would (see [33] and [72]-[74]). property. likely, for example, have led to a different

39 DEFAMATION · UPDATE September 2018 · LAWTALK 921

UPDATE result on the facts of Bank of New Zealand DEFAMATION v Fiberi Pty Ltd. Final observations Two final observations can be made about The new matters mentioned only briefly by the Court of Appeal but which are of some importance. defence of First, the Court did not appear to see s 17 of the Companies Act as a complete answer on the question of whether a responsible major transaction entered into in breach of s 129 is invalid (see [31]). That must with respect be correct (as s 17 deals only with communication questions of the capacity of a company itself not with the authority of corporate agents). However, it is not consistent with on a matter of the earlier (and much criticised) decision of the Court of Appeal in Hansard v Hansard [2014] NZCA 433 at [31]. public interest Secondly, the court in a mere footnote reference (footnote 3 at [18]) suggests that if there had been a breach by Tina of her Durie v Gardiner fiduciary duty to act in the best interests of the company, that would make the contract [2018] NZCA 278 voidable by the company in equity. That also seems correct (at least unless the other contracting party is innocent) – see BY GARRY for example, Greater Pacific Investments Pty WILLIAMS Ltd (in liq) v Australian National Industries Ltd (1996) 39 NSWLR 143. However, the potential invalidity of transactions at The background equity for breach of directors’ fiduciary Last month, the Court of Appeal delivered its judgment in Durie duty is something often overlooked. v Gardiner. The judgment has caused quite a stir in media circles, Overall, the Court of Appeal’s judgment in as, in it, the court (comprised of French, Winkelmann and Brown Autumn Tree is of considerable importance JJ) recognised a new defence to the tort of defamation. to the topic of company contracting. It reaf- The factual background of the case can be quickly stated. firms the danger of relying on the ability Sir Edward Durie and Donna Hall had issued defamation of one director (on a board of more than proceedings in the High Court against Māori TV and one of its one) to contract on behalf of a company. reporters, Heta Gardiner. It also clarifies the correct interpretation In their statement of defence, Māori TV and Mr Gardiner con- of the proviso to s 18(1) and in so doing tended that the words alleged to be defamatory did not bear the provides more protection to innocent meanings pleaded, but also that if they did they had a defence third parties contracting with a company. which they described as a “qualified privilege/public interest Finally, the judgment signals a change in defence”. This was pleaded in this way: approach on the question of validity of “To the extent that the words complained of … were published, major transactions, and provides a reminder those publications were protected by qualified privilege in that a director’s breach of fiduciary duty that they were neutral reportage, and/or subject to the Lange may also impact on the validity at equity of v Atkinson privilege; or an extension thereto; and/or were transactions entered into by a company. ▪ responsible journalism/communications on matters of public interest; or protected by a sui generis public interest defence.” John Land is a senior Competition Law Sir Edward and Ms Hall applied to strike out this defence and, in specialist and Commercial Litigator at the High Court, Mallon J refused to do so on the basis that it could Bankside Chambers in Auckland and also not be said that it would inevitably fail on the facts. Teaching Fellow at Auckland Law School, Sir Edward and Ms Hall then appealed to the Court of Appeal. lecturing in company law. He can be contacted on 09 379 1513 or at  john. The elements of the new defence [email protected] The appeal afforded the Court of Appeal its first opportunity to

40 UPDATE · DEFAMATION

difficult but the court has suggested that: “… to be of public interest the subject matter should be one inviting public attention, or about which the public or a segment of the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached.” It is clear that a story will not relate to a matter of public interest simply because it will be of interest to the public. A story that merely feeds curiosity or prurient interest in the private lives of public figures or celebrities will not be sufficient. Further, when considering this issue, the court indicated that the trial judge “should step back and look at the thrust of the publication as a whole” and that it will not be “necessary to find a separate public interest justification for each item of information” contained in a story. How will the element of “responsible communication” be determined? Determining whether the communication consider significant landmark defamation relation to the new defence. In a case tried was responsible is to be assessed by the decisions of the UK and Canadian courts by jury in New Zealand, it will be for the trial judge having regard to all the relevant which had recognised that the responsible trial judge to determine whether the two circumstances of the publication. These publication of matters of public interest elements of the defence are established may include: to the world at large could give rise to a based on the primary facts as found by • The seriousness of the allegation – the defence. the jury. more serious the allegation, the greater The court concluded that it was: degree of diligence needed to verify it; “… time to strike a new balance by What will be a “matter • The degree of public importance; recognising the existence of a new of public interest”? • The urgency of the matter – did the pub- defence of public interest commu- So how will a judge determine whether lic’s need to know require the defendant nication that is not confined to par- the subject matter of a publication was of to publish when it did; liamentarians or political issues, but public interest? Defining what is a matter of • The reliability of any source; extends to all matters of significant public interest in the abstract is notoriously • Whether comment was sought from public concern and which is subject to a responsibility requirement.” It is immediately apparent that the new defence is not limited to responsible journalism but is available to anyone who publishes material of public interest in or Legal Accounting Bureau · Save time and money Kathy Kell on any medium. provides comprehensive, · Always know your trust account [email protected] accurate, efficient and timely is balanced and your month end The court said that the elements of the certificates are filed on time Ph 09 444 1044 management of solicitors’ trust Fax 09 929 3203 accounts. · Our service is completely secure new defence are: a) the subject matter of and confidential www.accountingbureau.co.nz the publication was of public interest; and Outsource the management of · Trusted professionals with over your firm’s trust account. Either 20 years’ experience b) the communication was responsible. come to us or we can come to · 72 law firms currently use our Powered by juniorPartner. Guidance has also been provided as to you remotely. services Practice Management software you can trust. the respective roles of judge and jury in

41 DEFAMATION · UPDATE September 2018 · LAWTALK 921

the plaintiff and accurately reported – in most cases it will plaintiff ’s investigation for corruption, be inherently unfair to publish defamatory allegations of fact but the nature of the alleged corrup- without giving the target an opportunity to respond; tion. There the House of Lords said the • The tone of the publication; and press could not disclaim all responsi- • The inclusion of defamatory statements which were not neces- bilities for checking their sources as far sary to communicate on the matter of public interest. as practical, but provided the article The court also indicated that this is not an exhaustive list and was of real and unmistakable public that these and other such factors: interest and was fairly presented, the “… must be applied in a practical and flexible manner with press were not required to produce regard to the practical realities and with some deference to primary evidence of the information the editorial judgement of the publisher, particularly in cases given by sources. Further still along involving professional editors and journalists.” the spectrum that may however be necessary.” What about neutral reportage? Interestingly, the court was not able to agree whether “neutral The distinction between the reportage” (ie, the neutral reporting of attributed allegations) new defence and qualified should be regarded as a separate defence, distinct from the new privilege, and what about public interest defence. Lange v Atkinson? Brown J considered it to be conceptually different and that it Finally, the court clarified two points. should not be recognised as a defence in New Zealand. First, the new defence is a standalone However, French and Winkelmann JJ agreed with the UK and one and not part of the rubric of qualified Canadian authorities that have held that neutral reportage should privilege. This is due to the fact that it arises not be regarded as a separate defence and, primarily because of the subject matter of the in doing so, said that it rests on both public publication – a matter of public interest – and interest and responsible communication. not the occasion on which it is published. In other words, they found that the “fact Second, that the form of qualified privi- that it has its own label does not make it lege recognised in Lange v Atkinson (mass in substance a separate defence”. publications concerning MPs, or those While, the judgment is therefore wanting to be elected to Parliament) should authority for the proposition that neutral no longer be available as a defence, being reportage can amount to the defence of effectively subsumed in the new defence responsible communication of a matter of public interest. of public interest, the Court of Appeal did sound a warning for those who may Conclusion engage in it: The new defence is to be welcomed. While “The stakes for publishers – main- it will not give journalists or others carte stream or otherwise – who do not blanche to tarnish someone’s reputation, it attempt to verify the truth of the will lessen the chilling effect that defama- defamatory allegation are high. They tion law has had on the media. In essence, are likely to do so at their peril and The new it will reward responsible and ethical accordingly the incentive to make the defence is to reporting so that if, despite a journalist’s attempt remains high.” be welcomed. best efforts, the media gets it wrong, they While it will not will be able to rely on the defence to defeat There is a spectrum give journalists a defamation claim. But the media and The majority (French and Winkelmann JJ) or others others will need to be mindful that there summarised their view by saying the new carte blanche is a quid pro quo – they are now on notice defence “thus involves a spectrum” and: to tarnish of the high standards of conduct that will “At one end is reportage where the someone’s be required to establish the defence. ▪ mere fact of the statement being reputation, it made is itself of public interest and will lessen the Garry Williams  williams@ is reported as being of public interest. chilling effect richmondchambers.co.nz is a barrister Further along the spectrum is a situ- that defamation practising from Richmond Chambers ation as in Flood which involved the law has had on and a member of the NZBA Training publication not only of the fact of the the media Committee.

42 LAWTALK 921 · September 2018 UPDATE · ENVIRONMENTAL LAW

UPDATE ENVIRONMENTAL LAW Update on two environment projects RMA review to float three options for change

BY LYNDA HAGEN

law obligations. Vanishing Nature, which highlighted the plight of New Three new options for organis- The third paper explores institu- Zealand’s threatened species. ing the resource management tional arrangements and the kinds system will be proposed by a major of agencies and actors we may need. Gene drive study raises questions Law Foundation-funded review due It considers the merits of economic Another Foundation-funded environment project has to report by the end of the year. instruments to shift behaviour, such recommended that new pest-eliminating biotechnology The Environmental Defence as quotas, royalties and charges, and should only be introduced after “collective consent” is Society’s first principles review it looks at compliance, enforcement obtained from neighbouring countries. The Sustainability of resource law recognises that and monitoring. Council study says this is important as New Zealand the Resource Management Act, Raewyn Peart says the working has a strong interest in biosecurity and releasing a gene world-leading when introduced 27 papers have been well-received. drive could wipe out a species that is of value to our years ago, is no longer fit for pur- “People have appreciated that we farming or ecology. pose. The Government has said that are stepping back from the RMA and We need to be aware of how gene drive releases (the the EDS project will be an important having a first principles look at the introduction of a negative gene to a species) in other input to its wider review of the RMA whole system – until you do that, countries could present significant biosecurity threats to starting next year. you won’t know what’s needed in us. Conversely, if New Zealand aims to wipe out pests like The EDS review began a year ago, future. Previous work has been too possums, rats and stoats with this technology, it creates a and the review team has published confined to the current system – it risk of our gene drive crossing borders to other countries, three working papers that set the hasn’t led people to think more for example, from New Zealand possums to Australia, scene for its final report. EDS Policy broadly.” where possums are protected. The study recommends Director Raewyn Peart says each of She says the three broad options that neighbouring countries should the three options in its final report in the final report will take account agree to any release and states that will set out different legal and of Māori perspectives. It will also if New Zealand is serious about institutional frameworks that can consider the implications for spe- exploring the use of gene drive be “mixed and matched”, adding: cific sectors and locations – for to help protect native species, it “Our proposals will be different to example, what would it actually should be leading development of the current system, though I suspect mean for agriculture, forestry and the international rules. “We need they won’t be totally unfamiliar to fishing? to fundamentally reappraise gene people.” The Government has welcomed drive’s risks and benefits and adopt The review arose from a wide the EDS review. Environment policy to match this,” says lead variety of problems and complaints Minister David Parker has said he’s researcher Simon Terry. over the past quarter-century not yet persuaded that the RMA The full report on this research indicating that the RMA required a should be thrown out entirely, but and the RMA working papers fundamental rethink. agrees that improved national direc- released to date, are available The EDS team started by looking tion and substantially improved under the publications link at www. at the context and framework for the processes are needed. lawfoundation.org.nz ▪ system, taking account of findings The review has been made possi- from overseas. Then it considered ble by $325,000 of Law Foundation Lynda Hagen  lynda@ structural features like legislative funding. The Foundation has also lawfoundation.org.nz is Executive design and public participation, as supported earlier significant EDS Director of the New Zealand Law well as New Zealand’s international work, including its 2015 book Foundation.

43 ENVIRONMENTAL LAW · UPDATE

UPDATE ENVIRONMENTAL LAW Ministry for the Environment RMA guidelines for front-line staff

BY VANESSA HAMM

Best Practice Guidelines for Compliance, Monitoring and Enforcement under the Resource Management Act 1991 were launched by the Ministry for the Environment (MfE) in July 2018. In his introductory message, the Minister for the Environment, David Parker, says the purpose of the Guidelines is to clarify what best practice looks like by providing guidance and support for front-line staff through standard tools and templates. The Guidelines have been developed with support from The Guidelines acknowledge that deci- a panel which includes council staff from throughout New sion-making processes on enforcement Zealand. The Guidelines are comprehensive and range from actions vary between councils and go on chapters outlining compliance, monitoring and enforcement to set out process and policies that are (CME) under the Resource Management Act, along with the recognised as good practice. Key aspects various enforcement tools, through to practical advice for of this include: council staff on approaches to site inspections and incident • Where the breach is significant, and investigations, including the power of entry, the use of field an infringement notice, enforcement kits and notebooks, evidence collection, interviewing and order or prosecution is contemplated, statements. the decision should be referred to an The Guidelines will undoubtedly be a valuable tool for those staff ‘enforcement decision group’, if the dealing with enforcement matters on a daily basis, particularly council has one, or a group of experi- for those councils that have not developed detailed enforcement enced staff to determine the appropriate manuals. However, the Guidelines are equally interesting for law- response. yers undertaking criminal defence work in the RMA context, as • Some councils operate an open the chapter on enforcement decisions steps through the ‘robust enforcement decision group, which can processes’ which councils should have in place to guide the be attended by staff members, but if decision-making process when exercising discretion about what this is the case, then the final decision enforcement response to adopt. should sit with the core members of Some councils, such as the Waikato Regional Council, the Taranaki the group. Regional Council, the Tasman District Council and Environment • Some councils have an additional (or Canterbury, have enforcement policies which are publicly available alternative) step where, if prosecution on their websites. Making the enforcement policies publicly available is contemplated, it is referred to a pros- allows the public to better understand how their council is likely ecution group after being considered by to respond to non-compliances and know what to expect. (The the enforcement decision group. This will Guidelines note that examples of ‘good enforcement policies’ include have similar membership but may also those from Tasman District Council and the Waikato Regional include a lawyer. Council). However, not all councils publish their enforcement • Prosecutions involve particular consid- policies. erations against the Solicitor-General’s

44 Prosecutions Guidelines as to whether then this is acceptable provided appro- prosecution is in the public interest, priate measures are in place to ensure a and legal considerations about the robust and transparent decision making sufficiency of evidence and availability process. of defences. A decision to prosecute The Guidelines will assist councils through- should therefore be contingent upon out New Zealand to consider whether independent legal review, to ensure the processes that they have in place for the public interest and evidential suffi- deciding on enforcement action represent ciency tests are met. If the legal opinion good practice. suggests both of these tests are met, The enforcement policies vary considerably then the council has the final decision in terms of how much detail they articulate as to what charges are filed, and against about the process used to determine whether which defendant. and, if so, what kind of enforcement action • Decisions about whether to take enforce- a council will take, so there may also be an ment action in any particular case should increase in the level of detail with which this not be made by councillors, due to the is communicated. In the absence of that, risk or perception of decisions favouring the Guidelines allow potential recipients of certain groups/individuals. The Guidelines will enforcement action to understand what sort • It is good practice for final enforcement undoubtedly be a of process should have been undertaken in decisions to be delegated from the chief valuable tool for determining whether and what enforcement executive to the regulatory manager or those staff dealing action was appropriate. ▪ other suitable decision-maker in the with enforcement council. This is because chief executives matters on a daily Vanessa Hamm  Vanessa.hamm@ may be perceived as being subject to basis, particularly hobec.co.nz is a partner with Holland administrative or political pressures to for those councils Beckett. She specialises in resource make a particular decision since they that have not management, local government and are appointed by elected representa- developed detailed public works matters and is a member tives. If councils have a policy of the enforcement of the New Zealand Law Society’s chief executive approving prosecutions, manuals. Environmental Law Committee.

45 FRANCHISING · UPDATE September 2018 · LAWTALK 921

UPDATE FRANCHISING Territory - Do you really know what you are getting?

BY STEWART GERMANN

because the existing franchisee is service and exploit to its maximum A key part of franchising is for under-utilising the territory or potential. a franchisor to be able to offer underperforming. Some franchisors may wish to some sort of territory to their fran- cover their position by reserving in chisees. Most franchise systems Concise territory the franchise agreement the right in New Zealand and Australia rely In the majority of cases, a franchisor to take back part of the territory on specific territories. A potential will have divided up New Zealand in the future (perhaps when the franchisee who has selected a into concise and separate territories system has become established) franchise system and obtained a which will be allocated to each new by re-demarcation of the bounda- copy of the disclosure document franchisee. In the case of Australia ries during the term. This may be and franchise agreement from the there will be often a master fran- framed as an absolute right or in the franchisor must look carefully at chisee or franchisees for New South franchisor’s discretion (reasonable the territories available and what Wales or Queensland or Victoria or otherwise) that the territory is not is being offered by the franchisor. and then the master franchisees being (or has become) and/or may By territory I mean a specific area will appoint unit franchisees in not be capable of being serviced to within which the franchisee will each particular location. Territories its maximum potential. A franchisee be able to conduct the franchised should be carefully defined on maps should be aware of a blanket sole business. If the business will be and a typical clause in the franchise discretionary right which may be conducted in a shop in a shopping agreement may be as follows: drafted as follows: mall then will the territory just “The franchisor grants to the “The franchisor shall have the be the surrounds of the shopping franchisee a franchise to estab- right at any time during the mall? Will it be a territory covering lish and carry on a business term to reduce the territory if a reasonable area which will be within the territory as set out in the franchisor’s opinion the defined on a map to be attached to in the Schedule and delineated franchisee is not maximising or the franchise agreement? Will there in red on the map attached and is unlikely to be able to max- be a non-exclusive territory or no to carry on the business within imise business exploitation of territory at all, and, in consequence, the territory using the methods the territory.” “a free for all” within which numer- and techniques developed by A possible way out of the above is ous franchisees will be conducting the franchisor …” for the franchisee’s lawyer to sug- their own separate businesses with This type of clause gives certainty to gest inclusion of an amendment no demarcation line? a franchisee by way of a map being along the following lines: The issue of territory is a very attached to the franchise agreement “… provided that the franchisor important one for consideration. with the boundaries of the territory shall not be entitled to reduce As a franchising lawyer, territorial clearly defined. There can be no the territory to an area within disputes and issues have increased doubt as to the boundaries of the a [insert number] kilometres in recent years and the main territory which a franchisee is con- radius from the premises.” problem comes from franchisors tracting by way of execution of the allowing new franchisees to operate franchise agreement and payment Exclusivity of franchise franchises either within what an of the initial franchise fee. In my What a franchisee requires in enter- existing franchisee thought was its opinion, some franchisors make the ing into a franchise arrangement is own particular territory, or offering mistake in the early days of giving certainty. There must be certainty as the right to open a second outlet to a franchisees too big a territory which to the upfront franchise fee payable, franchisee within the same territory a particular franchisee does not certainty as to the ongoing service

46 LAWTALK 921 · September 2018 UPDATE · FRANCHISING

fees or royalties payable together more than one outlet in the territory. independent legal advice from a with advertising levies and, most Because of this important fact, the lawyer experienced in franchising. importantly, certainty in relation clause quoted above usually contin- to the territory. A possible clause to ues and says the following: Alternative clause consider is along the following lines: “If the franchisor considers the Another way is to confirm that the “If the franchisor or the fran- franchisee is capable of oper- franchisee has not been granted an chisee identify the opportunity ating the proposed franchise exclusive territory but to combine to establish a further franchise in addition to the franchisee’s that provision with a right of first in the territory ('the proposed commitment(s) under its then refusal by a franchisee should a franchise') then the franchisee existing franchise agreement(s), franchisor wish to establish another shall be considered prior to any it shall notify the franchisee in franchise outlet within the territory, third party as the proposed writing and the franchisee shall and such a clause would read as operator of the proposed fran- indicate its willingness to accept follows: chise. The existing franchisee, the proposed franchise. The final “The franchisee acknowledges subject to meeting all new fran- decision as to the suitability or that it has not been granted an chisee criteria, shall be offered otherwise of the franchisee to exclusive franchise territory but a 14 day first right of refusal.” operate the proposed franchise that it has been granted the What can be seen from this type shall rest solely with the fran- right to carry on a business at of clause is a clear indication that chisor. If the franchisee declines the premises. The franchisor the franchisee has not been given within 14 days to accept the agrees that it shall give the an exclusive territory, but will be proposed franchise, then the franchisee a first right of refusal considered first and foremost should franchisor shall be free to either (provided the franchisee is in the franchisor wish to open another itself open a new store within full compliance with all of outlet in the territory. However, an the territory or allow a new its obligations pursuant to important caveat for the franchisor franchisee to open a new store this agreement) to purchase is whether the existing franchisee within the territory.” another franchise it may has been operating the business in As can be seen above, the clause propose to offer in respect of such a way that gives confidence is explicit, clear and unambiguous the establishment of another to the franchisor that the existing but it is essential in all cases for [insert brand name] outlet at a franchisee will be able to manage the proposed franchisee to have site which is within the area as

47 TAXATION · UPDATE September 2018 · LAWTALK 921

UPDATE specified in the Schedule ('the Territory') on no less TAXATION advantageous terms than the proposed franchise offer to any third party. The franchisee shall then have fourteen (14) days from the receipt of notice of such offer to notify the franchisor by notice in Inland writing whether or not it wishes to accept the offer. If it wishes to accept the offer then it must agree to open the new [insert brand name] outlet within Revenue ninety (90) days of acceptance.” No territory franchises targets Some franchise systems prescribe no territories what- soever. There is a difficulty here for the initial franchisee who should be concerned about saturation of the area of “dividend the franchisee’s proposed operation – ie, how far is the franchisee going to travel to get business? This is especially relevant when in the case of a new system there are no stripping” actual (as opposed to hypothetical or anticipated) figures to justify a viable business. The logical reaction would be to request a limit on the number of franchisees to operate BY TORI in the area although this can also be counterproductive SULLIVAN because it may stultify the establishment of and/or the growing of brand awareness to the public. Is it fair to appoint franchisees within a city area which may be divided into (say) five separate areas, and to say The IRD’s crackdown on what it regards as tax to 20 franchisees – “Go and conduct your business all avoidance is encroaching further into areas which have, over the city as you have no specific boundary except in the past, been considered normal business practice. to ensure that any business conducted is within that Its latest target is “dividend stripping”, creating a city”? I consider the answer must be no. However, this scenario where all forms of corporate restructuring, would not preclude a franchisee who lives in one part of even those with a clear commercial purpose, could be the city from servicing a customer who lives in another struck down as tax avoidance. part of that city. Also, relatives and friends of a particular On 13 March 2018, Inland Revenue issued a Revenue franchisee may want to be looked after by that particular Alert (RA 18/01) Dividend Stripping – some share sales where person, regardless of where he might live. proceeds are at a high risk of being treated as a dividend for income tax purposes and is investigating several taxpayers Summary who may fall within its ambit. Territories or the lack of specific territories is a fasci- Taxpayers who have had, or will be involved in, a cor- nating topic in franchising. A franchisor must be fair to porate restructure where the sale proceeds are credited each particular franchisee but must also abide by the to a shareholder current account (even if that can be provisions of the franchise agreement and also what is drawn down only as funds become available) should stated in the disclosure document. Too often a franchisor be concerned. The Revenue Alert warns taxpayers that in the early years has granted a franchise to a franchisee certain types of corporate restructuring may be subject and has given too large a territory. It is true that it is to the general anti-avoidance provision (s BG 1, Income easier to give a person a limited area and later to agree Tax Act 2007) or constitute a specific dividend stripping to enlarge it if the business is succeeding than to give a arrangement (s GB1, Income Tax Act 2007). person a large area and later take it away or subdivide This is the first Revenue Alert issued by Inland Revenue it if the territory is not being utilised to its maximum in more than two years (that being RA 15/01 Employee potential. The key aspect for potential franchisees is Share Schemes, which related to allegations of tax always – know what you are getting into in relation to avoidance in the structure and operation of employer all aspects of the franchise agreement but, in particular, subsidised share schemes for employees) and highlights in relation to the territory. ▪ what it considers to be “a significant and/or emerging tax planning issue that is of concern”. Stewart Germann  [email protected] is a Like a warning shot, the Alert was a first step in partner at Stewart Germann Law Office. Listed in flushing out as many potentially affected taxpayers as the International Who’s Who of Franchise Lawyers, possible with the promise of more lenient treatment (ie, he has over 35 years’ experience in franchising law any reassessment will apply only to the core tax and and acts for many franchisors and franchisees in New not include what can be significant penalties of up to Zealand and overseas. 100% of the underpaid tax).

48 LAWTALK 921 · September 2018 UPDATE · TAXATION

The second step is for Inland Revenue to issue “Risk Review” letters to potentially affected taxpayers who have not voluntarily come forward. These taxpayers have a final opportunity to “own up” in return for more lenient treatment. These Risk Review letters are causing considerable distress for clients caught unaware that their business restructure may now be considered tax avoidance. Once Inland Revenue has dis- posed of the taxpayers who come forward under steps one and two (either voluntarily or when prodded), the third step is to start aggressively auditing any other taxpayers it suspects have participated in this kind of alleged tax avoidance arrangement. Step three may involve reassessment of core tax and the full imposition of any penalties. Many taxpayers being caught within Inland Revenue’s new net may have done nothing wrong – and many tax practitioners consider this to be an example of over-reach by by the new company, was used to settle his outstanding but for the sale of the shares.” Inland Revenue. current account in full with the old company, with a The focus of the Revenue Alert is $700,000 surplus remaining available to fund future transactions whereby the corporate Revenue Alert 18/01 capital withdrawals. restructuring does not result in a The Revenue Alert applies the rea- Following an investigation of the arrangement meaningful change in the former soning of the High Court decision by Inland Revenue, the taxpayer acknowledged the direct or indirect ownership of the in Beacham v CIR (2014) 26 NZTC restructuring had no commercial purpose and was tax group: 21-111, [2014] NZHC 2839. That case avoidance. The only question for the court was whether “…. if the sale is to a related involved an aggressive and entirely the commissioner could assess the taxpayer for a deemed entity, such as a company uncommercial scheme that even dividend of only his former current account of $1.1 mil- in which the seller or sellers the taxpayer conceded was tax lion or, alternatively, the full sale price of $1.8 million. have a significant sharehold- avoidance. The High Court ruled the full sale price was a deemed ing, the economic effect of the Under that arrangement: dividend liable for tax. The court’s reasoning was that the transaction may be that the • The shareholder had an over- transaction effectively converted the retained earnings seller indirectly continues to drawn current account of $1.1 of the company into a debt owed to the taxpayer so he substantially own the target million (upon which it would should pay tax on that full amount. company. The greater the sim- normally have to pay tax); while This case is extreme but Inland Revenue has relied ilarity between the seller’s pre • The company itself had retained upon it in the Revenue Alert to support its warning and post-sale ownership of the earnings of $1.8 million (yet with that all forms of corporate restructuring, including those target company, the greater the no available imputation credits as with a clear commercial basis, may potentially amount risk that the transaction should it had utilised loss-offset elections to tax avoidance. be treated as a tax avoidance each year to pay no tax while The Revenue Alert explains: transaction. This risk exists those earnings accumulated). “In essence, a dividend is a transfer of value by a regardless of whether or not To solve its dilemma and get access company to a shareholder or related person and the the target company has liquid to the retained funds tax free, the transfer is caused by that shareholding. Dividend assets or retained earnings at taxpayer sold the company to a stripping refers to the sale of shares where some the time of sale.” newly-incorporated company for or all of the amount received is in substitution for Controversially, the Revenue Alert $1.8 million. That sale price, payable a dividend likely to have been derived by the seller claims the result would be the

49 TAXATION · UPDATE September 2018 · LAWTALK 921

same even if the company has no 28% corporate tax rate and the Tax Act 2007. This expressly permits retained earnings that it could pay shareholders’ marginal rate of such arrangements. That law change out as deemed dividends. Crediting 33%, even if the company itself would not have been required had sale proceeds to the shareholder’s had sufficient imputation credits Inland Revenue not taken such an current accounts could be sufficient to pay a dividend on any retained unreasonable approach in the first as these credits can later be drawn earnings. The full amount of the place. down as funds become available. credit to the shareholders’ current The hard-line approach in this Even more controversially, the account may be still be taxable. latest Revenue Alert accords with Revenue Alert concludes tax avoid- • Inland Revenue may assess the our experience as well. Restructures ance may arise regardless of any company for resident or non-res- which are vastly different to the commercial or business rationale for ident withholding tax. examples in the Revenue Alert are the restructuring, such as the exit of • Shortfall penalties (in addition to being scrutinised through the prism minority shareholders or the amal- interest and late payment penal- of tax avoidance. gamation of unrelated companies. ties) may apply. Although not all restructures (past Using these two examples it explains: and future) will be caught, getting “Again applying the EY Law’s view Inland Revenue investigators over Parliamentary contemplation We question whether the extreme the line can be a long and arduous test, the Commissioner’s view facts in the Beacham case can be task. Rather than waiting for the tax is that these transactions are interpreted and applied as widely man to come knocking on the door, likely to be a tax avoidance as the commissioner alleges. Most taxpayers who have been involved arrangement. Although there worrying, the Revenue Alert repeat- in a restructure that is credited to a is a commercial purpose [the edly asserts that restructuring for shareholder account should review exit of shareholders or merger genuine commercial purposes is not that restructure to ascertain where of two different businesses], protected from allegations of tax it sits on the risk continuum and given the facts and circum- avoidance. It refuses to recognise respond accordingly. stances, that purpose has been that taxpayers enter restructur- Taxpayers who are, or will be, achieved in a way that means ing transactions for economic or restructuring in the future for non- the transaction has a more than business reasons unrelated to the tax related reasons should ensure merely incidental purpose of alleged future tax benefits. contemporaneous supporting tax avoidance.” Taxpayers experienced a similar documentation can be produced. The Revenue Alert is accompanied unrealistic approach from Inland As part of this strategy, taxpayers by a brief Q&A responding to Revenue when it alleged that debt with no appetite for future tax risk potential uncertainty that may be capitalisation may also constitute may consider seeking a binding created by such a wide and novel tax avoidance under QWBA 15/01: ruling from Inland Revenue before approach to the dividend stripping Income tax: tax avoidance and debt the restructure is concluded. ▪ rules. Worrying for many taxpayers, capitalisation. the Revenue Alert and the Q&A In that instance Inland Revenue’s Tori Sullivan  tori.sullivan@ explain that: overly-bullish interpretation of how nz.ey.com is New Zealand Tax • The four-year time bar may not the general anti-avoidance provision Controversy Leader at EY Law in apply to previous restructures. could apply to entirely commercial Auckland. She has practised tax • Any reconstruction is not limited debt capitalisations was eventually for over 12 years and has extensive to taxing the shareholder on over-turned by Parliament when it experience helping clients in tax only the difference between the passed amendments to the Income advisory and compliance.

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50 Decision highlights problems with court reporting

BY NICK BUTCHER

In July, the New Zealand Media Council strongly criticised a leading news organisation’s coverage of a major court case.

This followed a complaint by a Crown Solicitor about inaccuracy. The complaint was upheld.

The story in question was published by news website Stuff with the headline ‘Children admit making up sex claims against Auckland teacher to get him fired.’ It was also published in The Press, Manawatu Standard, Waikato Times, Timaru Herald, Taranaki Daily News, Southland Times, Nelson Mail and the Marlborough Express. The case involved the prosecution of an Auckland intermediate school teacher in relation to three separate allegations of indecent assault from different complainants. The first sentence of the article read: “Intermediate school students admitted they lied that their teacher indecently assaulted girls so he would be fired after yelling at them in class, a court heard.” The concern was that the story didn’t match the evidence presented in court. Auckland Crown Solicitor Brian Dickey, a partner at law firm Meredith Connell, made the complaint to the Media Council. One of the firm’s senior prosecutors had been representing the Crown during the case.

51 THE JUSTICE SYSTEM September 2018 · LAWTALK 921

No problem with acquittal, it was about the evidence Mr Dickey says he doesn’t have any problem with the acquittal of the man accused – his complaint was purely about the facts and whether what was reported in the media had been presented as evidence. “If they’d reported that an intermediate school teacher was acquitted having gone to trial and having denied the charges and having maintained his innocence, I’d have been fine with that. “But this article’s headline and first sentence in particular wasn’t an accurate report of any evidence given, whereas it was presented as being the evidence given by the witnesses,” he says. Mr Dickey accused Stuff of breaching two Media Council principles – one on accuracy, fairness and balance; the other on children and young people. He immediately emailed Stuff after reading the story, asking the news organisation to correct what he considered falsehoods – the headline and first sentence. Mr Dickey says the article created the impression that the alleged senior member of the editorial staff. admission essentially amounted “I don’t know the hierarchy but I’m surprised that to acknowledgement by the three someone in the newsroom didn’t question – ‘are we complainants of a conspiracy to really saying that the children admitted lying in evi- pervert the court of justice. dence, yet the case went on to verdict without the judge “It also created the impression dismissing the charges.’ Someone in the editorial process that the New Zealand Police and should have raised a red flag on this.” the Auckland Crown Solicitor’s He also spoke on the phone with the journalist, who office would actually conduct a told Mr Dickey that she had not attended much of trial to verdict with the complain- the trial and had relied on comments made to her by ants having retracted and admitted counsel for the defendant who had supplied her with that they’d made it all up to get the his closing notes. teacher sacked, which casts both the Police and the Crown as reckless, Time enough to check irresponsible and unprofessional,” transcript, says Council he says. The Media Council decision says that, given the jury’s The Media Council decision says: verdict was delivered on 12 March, there was ample “It is obvious that if the girls had time for the journalist to be able to check the transcript in fact made the concession as of evidence to ensure certainty of the facts. The story reported, the Judge inevitably would was published on 5 April. not have left the matter before the The Council says the lack of resource can never, in jury but would have dismissed it at its view, be reason for not meeting the appropriate the close of the prosecution case.” standards. Brian Dickey thought such a “While accepting that it is impossible for reporters severe mistake in reporting the case to attend all trials, or even all significant trials, we find should have been picked up by a the approach taken here surprising, even alarming.

52 LAWTALK 921 · September 2018 THE JUSTICE SYSTEM

Someone in the editorial process should have raised a red flag on this

on digital technology and the ability unwisely depending on defence to grab something sensational from counsel’s closing notes, and by the trial and leave. failing to check the transcript. “These days I see a lot less of those Such falls well short of what is familiar and reliable journalists for expected of the media in reporting the duration of a case. I might see court cases,” the Council says in its them for the opening statements. report. Then they’ll be back if there’s a particularly gruesome or juicy bit Court reporting of evidence. Otherwise, we’ll see veteran says standards them at the closing statements. The have dropped journalists are quite open about it. Jock Anderson is a semi-retired A senior reporter I was speaking to journalist based in Timaru. He told me that he’d like to stay longer has covered courts and other legal but he was being called back to the matters for over 50 years. He is newsroom because he couldn’t jus- perhaps one of the last of a breed tify being there during what would that came from the classic period be considered the more dull parts of of typewriters, shorthand and ear- that particular trial,” he says. to-the-ground journalism. Even a very junior reporter would He doesn’t see any need for jour- “The public have a great thirst for understand that counsel’s closing nalists to be in a courtroom all day court news, adequately covered and addresses are not evidence. They and every day but says to achieve skilfully written, but the media fails are designed to persuade the jury accuracy and balance, they need them badly in all respects,” he says. one way or another, and by their to be there for enough of a trial to Mr Anderson agrees with much very nature interpret or comment report that way. of the criticism directed at the Stuff on evidence in the manner most “If you can’t be there to report coverage of the court case involving favourable to the prosecution of on a significant amount of the trial, the Auckland intermediate school the accused. They can never be a then at least say ‘the defence said in teacher, but is also unsurprised. substitute for the evidence itself. closing or the Crown said in closing’ “The standard of court report- In every summing up to a jury a or ‘the judge summed up the case ing these days, from what I see, judge will make that very point. It and said such and such’,” Mr Dickey is poor, sketchy and haphazard. is also unwise of a reporter to accept says. There is a lack of understanding of notes used in a closing by one side The Media Council report says the court process and an off-hand or the other. Those notes suffer from it was not satisfied there was any disrespect for the process by some the same flaws of objectivity that imbalance in the reported case reporters. apply to the actual closing addresses involving the school children “There are few designated court themselves,” the Council says. because any court case that leads reporters and as a result some to an acquittal is likely to focus reporters are sent to court with little, The disappearing more on the defence position, in the if any, knowledge or training in how court reporter same way that where a conviction the courts work. You can tell by the Mr Dickey remembers a time when is entered, it is more likely to focus way their stories are worded they he knew many of the seasoned court on the prosecution case. often have not grasped or under- reporters on a first name basis. “The problem here is that the stood what’s been going on in court. Those were the days before news reporter reported inaccurately, by They don’t stay there long enough organisations became more focused depending on a closing address, by to find out,” he says.

53 THE JUSTICE SYSTEM

Sensationalism over fact? Digital media and Mr Anderson says too often report- interviewing lawyers ers are being sent to grab the “head- Jock Anderson says digital media line story of the day”. and instant reporting has affected “Too often sensationalism is fea- how court reporting is done. tured over reality. A run of the mill “Mainly because it does not cater drink driving charge would rarely be for any long-term reporting. It is reported but if it involves a sports only there for the clickbait headline.” star it becomes major ‘news’ around He also warns that interviewing that person’s identity,” he says. lawyers can be hazardous. He agrees that it is difficult for “To begin with lawyers have to be journalists to attend all trials. very careful what they say about a However, that’s because reporting case, before, during and even after staff have been deliberately pruned it is concluded. I have sometimes back over the past decade. As a asked lawyers to clarify something result court reporting has become for me, particularly in complex more selective, with essentially commercial cases. But I don’t think only major criminal cases getting lawyers should be given the chance mentioned. These cases are often to re-litigate through the media the ones with some sensationalism arguments that may have failed in attached, he says. court. But the veteran journalist doesn’t “If a lawyer is being interviewed think, as the Media Council said in the reporter should be very careful its report, that “even a very junior in how this is reported to ensure it reporter would understand that does not usurp or impinge on the counsel’s closing addresses are not role of the court,” he says. evidence”. Mr Anderson filled in as Acting “How would they know that if no Editor of the Timaru Herald earlier one tells them? This is part of a lack this year and issues with court of understanding of the court process reporting were raised with him and the language and foibles of the then. courts. There is a lot to learn about “I was approached by a senior reporting court which can only come court official who asked if some- from a more experienced reporter thing could be done to get better being able to tutor a new recruit in coverage by the Timaru Herald and Establishing good how the system works,” he says. to ensure that reporters turned up relations with journalists Brian Dickey says if a journalist at court tidily dressed and know- Brian Dickey knows most of the sat through just one case, they ing what they were there to do. I seasoned court reporters and has would hear a judge explain to the have also had a discussion with a established a good rapport, includ- jury that closing counsel addresses High Court judge about why there ing being phoned for updates or are not evidence. is not, generally, better High Court other related information on a case. “You’d only have to attend one coverage in Christchurch. Judges But with fewer of the well-known case to hear it said several times. are concerned by the lack of journalists covering court, has that I suppose it’s conceivable that if meaningful court coverage. Judges professional integrity between law- a journalist had only sat through understand why court coverage is yers and media been undermined? extracts of a case, then it’s possible. important, so why don’t those who “It means that the next time But it’s troubling that some people own and run the news media?” he you’re phoned by a journalist that are covering sensitive jury trials that says. you don’t know or whose work involve children, without having an Other well-known court reporters you are unfamiliar with, you’ll be understanding of the procedures were approached for comment by guarded with your dealings with and protocols because they’ve never LawTalk about the Media Council the journalist which I think is a real sat through an entire case before. decision. However, they did not shame. I really want journalists to “I’d be staggered if responsible want to speak out because they felt be there and report, but accurately,” media let people cover extracts of it would be unfair on the journal- he says. sensitive jury trials without having ist whose court coverage was the The Media Council does have the the experience of observing a whole subject of the Media Council inves- power to censure a publication but trial and the directions that go with tigation. Some were also reluctant has never done so. it, from a judge,” he says. to criticise their employer. “The Council considered imposing

54 a censure in this case but felt the report rarely, if ever, seeing a court case falls just short of such a dras- reporter in their courtrooms, though tic step,” it said in concluding its it is noticeable that many parts of decision. regional New Zealand remain well served by dedicated court report- Chief District Court ers. Some bigger centres stand out Judges Judge’s concerns for the high quality of their court Decisions such as that made by the reporters, but even these are thinly understand Media Council and the implications spread,” she says. of it are far reaching. Yesterday news why court is not tomorrow’s fish ‘n’ chips Media vitally important wrappers anymore. Judge Doogue says the media coverage is The Chief District Court Judge, has an important part to play in Jan-Marie Doogue, says she has ensuring an open justice system in important, concerns about court coverage, terms of keeping it transparent and but acknowledges that many media accountable. so why don’t organisations are resource poor. “There are several ways the “The sheer volume of cases in District Court can encourage or those who the District Court poses a signifi- assist transparent justice, such cant challenge to judges and court as the current publication online own and run administration so it is not surprising of judicial decisions through the that news media struggle to assign District Court website, and also the news enough reporters to cover court. through observing clear and timely “Many District Court judges processes for requests for access media?

55 THE JUSTICE SYSTEM September 2018 · LAWTALK 921

to court documents. This year I established a District Court Media Committee for court reporters to raise practical problems they The reporter numbers encounter. “However, none of these are a have definitely reduced substitute for a skilled independent journalist actually attending court to over the years. bear witness on behalf of the public to the delivery of justice.” Covering court remotely risky business Judge Doogue says it is worrying that journalists are more often been doing this work for 37 years and has extensive attempting to cover court remotely experience in dealing with the media. or retrospectively, by relying In the past, journalists would take notes down by increasingly on court documents shorthand, then put the story together on typewriter. or the recall of interested parties. Nowadays, journalists go live from outside court, or send “The practice is fraught with risk, stories via laptops being used inside the courtroom. particularly for the public’s right to There’s an instant urgency that wasn’t achievable in the a full, fair and balanced picture of past, which might help explain why fewer reporters are proceedings,” she says. spending long periods of time covering cases. She says it is understandable that “I’ve seen a lot of change – most courts would have editors and news directors focus on dedicated reporters representing various media organi- the most high-profile or sensational sations and they were generally well known to staff and cases when assigning staff. judges and lawyers. These journalists would be really “They are in the news business aware of how the courtroom operates, the dos and the after all. But in doing so, the public don’ts,” Mr Williams says. often misses out on learning about “The reporter numbers have definitely reduced over many more relevant examples to the years. In some of our regional courts, the long-serving their communities of the admin- reporters are still there, but not so much in the bigger istration of justice which happen areas,” he says. in courtrooms up and down the Mr Williams wouldn’t be drawn on the Media Council country every day. decision on Stuff ’s reporting but he has some sage “These cases may point to under- advice. lying community, support agency He describes the media as the eyes and ears of the or societal problems, or successful public and they’re people they get to know and trust restorative and rehabilitative efforts. because court staff are seeing them on an almost daily Airing these sorts of issues is in the basis. public interest. “They play a critical role and the best way to report “If we view the courts as a com- on court proceedings is to be in court. We’ve had an ponent of a much wider justice increase in requests for information on cases, such as system where a well-informed court records. The best we can do in these situations is and engaged community is part of notify next appearance dates regarding a person. finding solutions, then competent “If they’re after more information, then a formal independent court reporters have request is needed and that would have to be considered. a particularly important role. Any Sometimes this has to be referred to a judge and that erosion of their number and skills takes time. If you’re looking for a scoop, the time delay is counterproductive to open justice may negate what you’re trying to achieve,” he says. in a decent and democratic country,” Mr Williams says when news organisations send an Judge Doogue says. inexperienced journalist into a courtroom to grab part of a story, it creates challenges for both parties. The times they “The experienced journalists know where they can are a-changing set up, including where they can connect up technology Richard Williams is the regional and cameras. Not being familiar with the surroundings manager for Courts and Tribunals can really slow things down as opposed to the flow of for the lower North Island. He has the seasoned reporters.” ▪

56 LAWTALK 921 · September 2018 THE JUSTICE SYSTEM

THE JUSTICE SYSTEM Just under one-third of judge-alone District Court trials adjourned

BY GEOFF ADLAM

to identify and achieve improvements that Nearly one-third – 31% – of scheduled judge-alone trials we need to strive for. Considering the justice in the District Court were adjourned on the day they were set system as a whole, and the wellbeing of the down for hearing in the year to 30 June 2018, Ministry of Justice people in the system, this type of data gives information shows. us a platform to identify areas we can focus While there were a relatively high number of adjournments, on to make the improvements together.” just 10% of the scheduled trials actually happened as intended. The ministry’s intention is to use the In 54% of the scheduled trials there was no need for one, as a detailed analysis to assess opportunities guilty plea was entered, the matter was withdrawn or dismissed for improvements to the court system without evidence, or there were guilty pleas on amended charges. which are based on evidence, rather than anecdote. One of its key findings from the Outcomes of first-occurring judge-alone trial judge-alone trial analysis is that 54% of the event in District Court, year to 30 June 2018 cases resulted in an outcome on the day of Outcome Number Percent trial which it suggests should have been dealt with at case review. Heard 845 10% Experienced criminal defence lawyer Adjourned 2517 31% Steve Bonnar QC, the convenor of the Guilty plea to all scheduled charges 2077 26% New Zealand Law Society’s Criminal Law Withdrawn or dismissed without 1349 17% Committee, thinks it is difficult to say evidence whether anyone is necessarily to blame where things do not resolve at the Case Guilty* (+ withdrawn by leave/ 869 11% Review Hearing (CRH) but later resolve. amended) “I am sure there will be cases where one Warrant to arrest 411 5% side or the other should have identified Other outcome 18 0% issues or the prospect for resolution sooner, Total 8086 100% before the CRH, but the simple fact is that often issues do not become apparent, or *Not just a guilty plea to all charges. evidence is not available, until after the CRH when cases are being prepared for The data has been generated by the ministry as part of a pro- trial. I think that part of that also relates gramme of detailed analysis of components of the justice system. to the ‘front loading’ of timelines under As Secretary for Justice Andrew Bridgman has said: “Data doesn’t the CPA. Pleas are expected within three create options. Analysis of data can help us to better understand weeks of charges being laid and then a what our options are.” (“The role of data and analytics to assess CRH may take place within a further three the court system”, LawTalk 919, July 2018). or four weeks of plea.” Ministry of Justice Chief Operating Officer Carl Crafar says the New Zealand Bar Association Criminal data reinforces the view that court performance is driven by a Committee Chair Jonathan Eaton QC range of factors. believes the reasons for lack of resolution “It also highlights that there is no one person or entity respon- at case review are fairly settled and long- sible for court performance,” he says. standing, with one being human nature: “If we are collectively going to get improvements in such a complex “put it off as long as you can”. system – for example in timeliness – we need to be working together “Officers in charge, prosecutors and

57 THE JUSTICE SYSTEM September 2018 · LAWTALK 921

defence lawyers focus on the case shortly no-tears’ cases are being bumped regularly, they are being told before the judge-alone trial. Resourcing ordinary people’s problems don’t really count because we are doesn’t encourage or permit early resolu- busy with really important things. tion. Police push the boundaries with the “The adjournment mentality feeds on itself and bloats out. Time charges and only relent at the last minute.” and fixture becomes a ‘maybe’ and delay becomes an available Mr Eaton also says the case review is tool. Preparing a case twice, three times, is a massive waste of treated by everyone as an administrative resources for all participants. rather than a judicial process. “The key is that judge-alone trials get set down at a time agreed, NZBA Criminal Committee member not imposed, and then they actually happen. Once all parties come Robert Lithgow QC believes the 17% of to believe cases will actually be heard, evidence called and a cases which are withdrawn or dismissed decision reached – on the date allocated – that would lead to without evidence on the first scheduled sharper pre-trial resolution.” day are largely a prosecution failure. The reasons for an adjournment are usually recorded by the “In some areas it will reflect brinkman- judge involved, the ministry says. The court registrar may fill in a ship – hoping for a plea – or a culture of reason when this is not done by the judge. Mr Lithgow is suspicious overcharging on the evidence. In other dis- of how reasons are selected, saying these are one individual’s tricts it will be a massive under resourcing assessment of the cause of the adjournment with no discussion of the Police Prosecution Service so that or consensus sought. the cases are not ready or the witnesses not advised or the file ‘lost’.” Top ten reasons for adjournment, year to 30 June 2018 The reasons for adjournment Reason Number Percent Over one-fifth of adjournments occur Unlikely to be reached – time 528 21% because there is no more time available in the day to commence a scheduled hearing. Witness/officer in charge not available 438 17% The Ministry of Justice says this is often Defence case not ready* 201 8% caused by intentional over-scheduling. Further discussion/resolution 188 7% Knowing that a relatively high proportion Further reports/information required 171 7% of trials will not proceed, the people who have the task of scheduling operate an Counsel not available* 87 3% airlines-like approach by “overbooking”. Prosecution case not ready 73 3% If you know there is a strong likelihood Judge not available 58 2% that one out of three trials will not happen Exceeded estimated time 47 2% and you don’t want to be left with an embarrassing gap from an adjournment, Submissions/Application to be filed 46 2% you will overschedule. Other reasons 694 27% “Overbooking is complex, but it insti- *Defence counsel specific reasons tutionalises adjournments as inevitable,” says Mr Lithgow. “The overwhelming Defence reasons for reason for adjournment is ‘Unlikely to be adjournment reached – time (21%)’. This means twice The most commonly recorded reason for as many cases could have been heard as an adjournment granted to the defence are heard. Therefore the correct heading is is that the defence case is not ready. This ‘Overbooking and lack of judicial resources’ is the third-most common of all reasons – but MoJ don’t want to call it that. ‘Time’ Over one-fifth for adjournments, well ahead of adjourn- is as it has always been – it is judges and of adjournments ments because the prosecution case is not court takers that are in short supply.” occur because ready. The opinions of prosecutors could Mr Lithgow says priority cases are easy there is no more not be obtained for this article, but Robert to announce but they create a distortion time available Lithgow suspects the prosecution figure is in the system “that means the properly in the day to “artificially low”. justifiable matter of the ordinary com- commence “This is because they say they are ready plainant and defendant may be adjourned a scheduled but have provided extremely late disclo- two or three times before being heard or hearing. The sure and acquiesced to defence application abandoned or a defendant gives up and Ministry of for time to consider it all. The Crown and pleads guilty because they cannot afford Justice says this the Police don’t like being blamed for the lawyer and the time off work”. is often caused adjournments as statistics come back to “This is a serious equality and access by intentional them – but the defence don’t really care to justice issue,” he says. “If ‘ordinary, over-scheduling who gets the blame as long as the problem

58 can be solved,” he says. Chief District Court Judge Jan-Marie Steve Bonnar says his experience is that the time between the Doogue says ensuring all the complex com- case review and judge-alone trial is not usually a problem in simple ponents required for a matter to proceed cases, as the court workloads mean the trial date is usually a fair to trial in a timely fashion is one of the way out from the case review. biggest challenges facing the administra- “However, in complex cases or where expert evidence or reports tion of justice. are required, that can sometimes be an issue for the defence,” he says. “The rate of pre-trial adjournments “It needs to be remembered that in such cases, the Police or has been stubbornly high for a long time prosecuting authority may have been investigating and obtaining and the adjournment rate in judge-alone evidence for months – or even more than a year – before charges trials is disappointing, despite judges’ best are laid, but the defence may be expected to be ready for a trial endeavours,” she says. within a much shorter time frame.” “Judges are often guided by counsel, and can only progress matters based on Top ten defence counsel specific reasons the information provided and degree of for adjournment, year to 30 June 2018 preparation. The timeframes for preparing Reason Number Percent case review memoranda are statutory and all parties have an obligation to meet Defence case not ready 201 22% them.” Further discussion/resolution 108 12% Judge Doogue says there are still too Further reports/information required 102 11% many cases where counsel – and it could Counsel not available 87 9% be defence or prosecution or both – are not prepared, or file documents out of Witness/officer in charge not available 46 5% time. Defendant excused from appearing 44 5% “This creates pinch-points in the process, Disclosure outstanding/incomplete 30 3% of which adjournments are a consequence. Defendant late 26 3% I hope to work collaboratively, in coming months with all those who play a part Legal aid not assigned 24 3% in case management, to explore ways of Submissions/Application to be filed 23 2% advancing pre-trial matters more produc- Other reasons 236 25% tively, as intended by legislation.” ▪

59 THE JUSTICE SYSTEM September 2018 · LAWTALK 921

THE JUSTICE SYSTEM Administrative impositions on the judicial process

BY JOHN BURN

stance ignores many other reasons of every citizen to bring an action for As a retired barrister I see an which may have caused the plea to be private prosecution. For an effective increasing risk to our courts system late – changing legal advice, change step is now inserted to limit the time in the way the Ministry of Justice of lawyer, slow realisation of guilt – and cost of a court hearing. is imposing its own changes and none of these should affect the fair It is well known also these days standards on the delivery of justice. and proper sentence. But the truth how the probation services have The historic approach in this and is that the ministry has taken over. now been instructed not to seek other Westminster-based countries I have also come across section 26 imprisonment if possible – this left judicial decisions squarely in of the Criminal Procedure Act 2011, simply on grounds of economy, the hands of our judges. But now which now obliges any person who and not in any way on the basis one can observe certain examples wishes to bring a private prosecu- of the degree of seriousness of the of what could be called legislative tion to lodge a charging document. offence. Inevitably, this flows on over-reach with the consequence Under this recent provision the to the court and again restricts the of these decisions being no longer registrar may accept the document, range of penalty which the judges untrammelled and not necessarily or refer it to a District Court judge previously had at their disposal. the outcome which the sitting judge for a direction that the person file There is also the rather odd fitting would have desired. all statements, exhibits and other of a continuous recording system In another legal journal I have crit- evidence on which he intends to rely. in every court – separate from the icised section 9(2) of the Sentencing The judge will then decide recording of evidence – for the infor- Act 2002, which entitles the court whether the documents lodged mation of the administrators in the to take into account a plea of guilty are sufficient to justify a trial, or ministry. No clear justification for and when it was made. The effect if the proposed prosecution is an this has been advanced, but I see is that a plea made at the onset abuse of process. In the case of it as another imposition on what of proceedings may be treated as Spratt v Savea Judge SJ O’Driscoll, was the age-old independence of an ameliorating factor and thus CRI-2014-009-0014923, 29 April 2014 the judiciary. to reduce the sentence. But if it is an ex-policeman was arrested in a I wonder if we really appreciate not made until the case is ready to hotel for disorderly behavior. He what limits on the legal right of the start, then it may be treated as a was held overnight but the charge citizen are being slowly advanced, reason to increase the sentence – by subsequently withdrawn; a charge and I cannot see that the ministry limiting the concession otherwise of failing to supply details under is aware of any shortcomings in this to be allowed. the Sale of Liquor Act substituted respect at all. ▪ But the only effect of a late plea but then withdrawn. He denied the which the authors of the Sentencing charge and complained of excessive John Burn  johnfburn35@gmail. Act dislike is the need to cancel a trial force and wished to sue for dam- com is a former barrister living so that jurors and witnesses may have ages, but the court – in a decision in Christchurch. He worked as a to be sent away. Of course, this may on which I prefer not to comment lawyer and then barrister sole in annoy the careful administrator in the – decided that there was not enough Christchurch from 1964 to 1980, ministry, but it should surely have no evidence and dismissed his claim. then as a litigation partner with a effect on the fixing of the sentence. This, of course, occurred without Sydney firm for two years before A crime has been admitted, and the the applicant being heard, or calling returning to practise as a barris- judge should have the right to fix the witnesses, or the defendant giving ter in Christchurch from 1984 to appropriate penalty. I know that the any evidence at all. My point is 1990. From 1991 to 2013 he was a courts have sought to say that a late obviously that the administrators member of the New South Wales plea shows less remorse, but this have intervened in the age-old right bar in Sydney.

60 LAWTALK 921 · September 2018 TIKANGA AND TURE

TIKANGA AND TURE Te reo Māori, kei a ia anō tōna ake whakahua

BY ALANA THOMAS

have attempted to provide the following always have that sound. They do not take Correct pronunciation of kupu Māori tips for the correct pronunciation of Māori on another sound, so if you master the is essential when learning te reo Māori or vowels: pronunciation of these vowels, you are developing your understanding of the a = this is pronounced like the “ar” in far doing a great job. The only time these language. You cannot simply pronounce te without the stress on the letter “r”; vowels will take on a slightly different reo Māori kupu like you would pronounce e = this is pronounced more like air or ear pronunciation is when they sit beside them in English, they have a different or the “ere” in here without the stress on each other. For example, “au” which sound and a different way they fit with the letter “r”; means “me” is pronounced, like the “oh” other vowels and consonants. Nō reira, kei i = this is pronounced exactly like you in Oh dear! While the “a” and “u” are still a ia anō tōna ake whakahua (te reo Māori would pronounce the letter “e” in the pronounced in the way I mentioned above, has its own specific pronunciation). It is English language. So, pronounce the reo the vowels are rolled together rather than for that reason, that this article focuses Māori “i” like you would the “e” in me, he, being sounded out individually and as a solely on the pronunciation of te reo Māori she, (Which often makes it confusing for result, the pronunciation comes out as “Oh”. tohu oro (vowels), kūoro (syllables) and reo Māori learners). Kia kaha rā! This type of pronunciation will come with kupu (words). o = this is pronounced like the “ore” in core practice once you become more familiar of an apple, or you tore your jacket. But with the pronunciation of te reo Māori Te Pū Taka Reo Māori again, no stress on the “r”. This is helpful vowels and kupu. (the Māori alphabet) to remember when introducing yourself, It may be difficult at first to change your Some of you may have seen, or heard, Ko Alana tōku ingoa. Many reo Māori way of thinking when seeing these vowels, the differences in the reo Māori alphabet learners mispronounce the “tōku” and but as I have said in all of my past articles, to that of the English alphabet and the end up saying the “tō” like a toe on your with practice, this will all come with ease. difference in the general structure of the foot. The word then sounds like, “toeku” And there’s only one way to achieve that, words. For example, te reo Māori has a which when heard by a reo Māori speaker kōrerotia te reo Māori. total of only 10 consonants (h, k, m, n, ng, is a totally different word from what you Te reo Māori, kei a ia anō tōna ake p, r, t w, wh) and five vowels (a, e, i, o, u). were intending to say. Just remember, you whakahua! ▪ The consonants “wh” and “ng” are consid- tore your jacket. ered one letter in the reo Māori alphabet. u = the easiest way to remember the pro- Alana Thomas  alana.thomas@ Unlike English words, you will never see a nunciation of this vowel is like how you kaupare.co.nz is a director of Kaupare consonant beside another consonant in te would say, “eeeww yuck”. That “eeeww” Consultancy. Before practising law she reo Māori, they will always be separated by is how you pronounce the reo Māori “u”. worked as a Deputy Registrar at the a vowel. However, a vowel can sit beside Just remember that these vowels will Māori Land Court in Whangarei. a vowel and, at times, can form a word compromising only vowels eg, “io/god”. Therefore, the correct pronunciation of DOING DISCOVERY? www.lawflow.co.nz each vowel is specifically important when learning te reo Māori. LawFlow is a web-based discovery system designed, developed and What learners of te reo Māori often hosted in New Zealand, used by New Zealand law ﬁ rms since 2012. get stuck on is pronouncing te reo Māori vowels like they would pronounce English. ∂ Generate discovery lists and electronic bundles One of the most commonly mispronounced Full-text search your discovery documents ∂ Remote access via any web-browser vowel is “O” as many pronounce it like ∂ And much more! the “oh” in Oh dear! What follows, is the ∂ mispronunciation of almost every kupu Take a free, fully-functional trial today! Visit our website for details www.lawﬂ ow.co.nz that has an “O” in it. So as a quick guide, I

61 MEDIATION

MEDIATION Consensus Building Introduction to a different way of facilitating outcomes

BY PAUL SILLS

One of the issues I often raise when presenting on mediation and dispute resolution is that we don’t think outside the square enough about the ways to use mediation or facilitation skills. In New Zealand, the square is the traditional one-day mediation held in the days or weeks leading up to trial. That accounts for about 94% of what we do. Mediation/facilitation practices could be of far greater benefit to society. They are essential skills to assist people to have better, more open conversations – which is what dispute resolution is all about. These skills should be employed more, and even where there is no legal dispute. Let’s examine how to use these skills by working with a Consensus Building Approach, as developed by Lawrence E Susskind and Jeffrey L Cruickshank in their book Breaking Robert’s Rules (OUP, 2006). To set the scene: you have been called in as a facilitator to run a series of meetings to help a group of people make a decision that deals with a tricky and potentially inflam- matory issue. There are a number of sub-groups that have is a willingness to work through a very different ideas around what should happen moving process that is more involved than forward. Passions are likely to run high and, without simple majority rules. good control, meetings run the risk of simply being a CBA provides a different approach talkfest with no real progress being made over weeks or for any group that wants to reach months. The default meeting/debating process that the either a unanimous or nearly unan- group has previously employed is the traditional simple It is also imous decision and provide for an majority rules, with a strict set of meeting procedures/ important to enduring plan for implementation protocols for the movement, debating and passing of ensure that of the decision. I will introduce the motions. This process is commonly used in meetings the right basic components of the approach held in every sphere of society. ideas are on here and then in subsequent articles The Consensus Building Approach (CBA) can be the table we will look at each of the steps in employed whenever groups of people need to meet to so that the a little more detail. make decisions, the group is committed to making a problem is Convening: Getting agreement decision that is as inclusive as possible, and one that correctly to use CBA, defining the issues that has a high likelihood of acceptance by all sub-groups identified need to be worked on, and agreeing involved. The scenario could be in the context of a civic – that way who needs to be at the meetings. meeting trying to implement policy for a local com- all possible Assigning roles and responsi- munity, a business trying to make a cultural change, solutions can bilities: Who will lead the meet- sports clubs, religious groups – there are no limits to be properly ings, what are the ground rules, where such a process might be applied. What is required examined use of a facilitator, how to record

62 MEDIATION

rules process. The group needs to invest enough time in the process to ensure that the right people are at the meetings and engaged in the process. It is also important to ensure that the right ideas are on the table so that the problem is correctly identified – that way all possible solutions can be properly examined. It also requires a process that the members of the group accept as transparent and fair for all, despite the fact they may have significantly varying interests or opinions. That is significantly different from a simple majority meeting where minority group members may simply opt out of the process knowing that their voices and interests are not going to be taken into account or reflected in the outcome because nobody in the majority will represent them. Any consensus building engagement that is working on a reasonably complex problem with a large group would benefit from the appointment of a facilitator. That person needs to be seen as neutral by all interested parties within the group to ensure members buy in to the process. the meetings and any potential Holding people to their com- While more time needs to be agreement. mitments: This is more than simply invested at the outset to set the Facilitating group problem expecting everyone to do what they approach up correctly, once the solving: How to generate proposals promised. It’s about recognising meetings and the discussion are that are advantageous to all different that unexpected problems are underway CBA may take no longer factions within the group, how to likely to arise after agreement is to reach a consensus agreement confront disagreements respectfully, reached and those problems need than it does to reach a simple and how to explore the widest range to be addressed in the same way majority. The clear advantage of of possible solutions. as the prior meetings – by way of CBA is that because ideas have been Reaching agreement: While a CBA. That involves keeping people debated on the merits, and decisions unanimous outcome is the goal, in touch with each other after an implemented in a way that has nearly unanimous is often the agreement is reached. been accepted by an overwhelming practical fall-back position adopted Sounds like a lot of work doesn’t majority, the outcomes are better as part of the meeting rules (for it? Well yes, it can be. And it cer- and more likely to stick. ▪ example, 80% commitment). This tainly is at the outset. Depending means the group has to meet the on the size of the group and the Paul Sills  paul.sills@paulsills. most important interests of every- complexity of the problem that co.nz is an Auckland barrister one concerned – which is a long brings you together, there might and mediator. He specialises in way from a simple 50% vote and is initially be significantly more work commercial and civil litigation a key differentiating feature when and time commitment in using this and is a Mediation Panel member using CBA. process than the simple majority of AMINZ.

63 PRACTICE September 2018 · LAWTALK 921

PRACTICE Does the legal profession have cultural capability?

BY GEOFF ADLAM

in Auckland will be Asian. This is not just an Auckland phenom- New Zealand’s legal profession has a different ethnic enon. The Canterbury region had the second largest net gain of composition to the wider population. At present 85% of lawyers migrants over the last decade. As at 2015 we know there was a are of European ethnicity, compared with 74% of our working age huge increase in Filipino immigrants in particular assisting with population. Change is coming, with Europeans comprising just 71% the Canterbury rebuild. Two out of every three farm workers come of those completing legal professionals in 2017 (“Lawyer ethnicity from the Philippines or South America.” differs from New Zealand population”,LawTalk 920, August 2018, pages 70-75). Is the whole legal profession prepared for the practice Major changes by 2038 of law in an increasingly diverse population? What about who Ms Chen says that Statistics New Zealand projected in May 2017 will be entering the law? that, by 2038, 51% of New Zealanders will identify as Asian, Māori In 20 years the ethnic makeup of the people living in New and then Pasifika, alongside the 66% identifying as European. These Zealand will have changed dramatically. Around 66% of people figures don’t add to 100% due to the increased rate of intermarriage will have “European or Other” ethnicity, down from 75% in 2013. and people of mixed ethnicities. The Māori ethnic population is projected to increase from 16% in “In superdiverse Auckland and New Zealand, people don’t need 2013 to 18% in 2038. The broad Pacific ethnic group is projected to go on their OE to meet someone of a different ethnicity; they to increase from 8% to 10%, and the broad Asian ethnic group can stay at home and do that. Most hands in the room go up when from 12% to 22%. I am speaking on superdiversity, if I ask who has family members These projections are based on the 2013 census and we may find of different ethnicities. that the 2018 census shows we are even “The result is that lawyers need to have more diverse. We’re now “superdiverse”, not just IQ and EQ; they have got to build says lawyer, academic and founder and their cultural capability of CQ, which is the chair of the Superdiversity Institute for ability to deal with people who are not like Law, Policy and Business, Mai Chen. She Ms Chen says them,” Mai Chen says. This will become says the academic literature defines the she has spoken increasingly relevant to deal with clients word to mean a country where 25% or to second and and also superdiverse staff. more of the population was not born there third generation She points to the 2013 census figure of and with 100 or more different ethnicities. lawyers of 90,000 New Zealanders who said they did In the 2013 census New Zealand had non-European not speak English well enough to have a 213 separate ethnicities and 25.2% of us ethnicity who basic conversation. were not born here. Auckland – with are discriminated “That’s pretty serious because if you’ve 44% of our lawyers and about 33% of our against. "They tell got clients who can’t speak English, you people – is even more diverse. Over 44% me that because can’t advise them unless you can speak of Aucklanders were born outside New they have an their home language. Getting an interpreter Zealand. unpronounceable raises a whole pile of issues. You have to “Auckland is now the fourth most super- foreign-sounding find one proficient enough to interpret your diverse city in the world, alongside New name and look legal advice accurately and if you don’t York, Singapore and Johannesburg,” Ms visually diverse, speak that foreign language, how do you Chen says. law firms presume know if they have got it right? Even in “In 2013 almost one in four Aucklanders they can’t speak court, I have had an interpreter who did identified with an Asian ethnic group. English and they not interpret what my client said on the By 2023, 29.1% of Aucklanders will be don’t even get an witness stand. I had to intervene as it was Asian. And by 2038 one in three people interview." in Mandarin and I could understand the

64 LAWTALK 921 · September 2018 PRACTICE

translation – or lack of it.” affects their language abilities, their culture and most importantly their understanding Discrimination (or not) of the Rule of Law.” Ms Chen says she has spoken to second Cultural capability means dealing with and third generation lawyers of non-Eu- people who are not like you, and recog- ropean ethnicity who are discriminated nising and understanding differences that against when it comes to recruitment by arise from national culture. law firms. “Finding a junior Chinese lawyer who “They tell me that because they have can just be the interpreter is not going to be an unpronounceable foreign-sounding enough to properly advise Chinese clients name and look visually diverse, law from Mainland China, for example. You will firms presume they can’t speak English need senior Chinese practitioners if you and they don’t even get an interview. I want the Chinese clients to respect the hired an excellent senior associate who legal advice. It is important to reflect your had this very experience. But of course customer base and to ensure that you’ve this behaviour shows a lack of cultural got the whole talent pool at your firm. I’m capability. They were born in this country. not talking about quotas. They are kiwis. And yes, they were raised “It’s profoundly important for all mem- in households with parents who were not bers of the profession to be building their born here, but they do understand New cultural capability, to be able to advise ▴ Mai Chen; lawyer, academic Zealand culture and speak and write the people not like them and to deal with and founder and chair of the English language as well as any Kiwi. I superdiverse staff. Being a good lawyer Superdiversity Institute for Law, have seen the research evidencing that requires you to be a good psychologist. Policy and Business job applications by candidates with a It’s pretty hard to get into the skin or the foreign-sounding name are 88% less likely shoes of the person you are advising if you to get an interview.” can’t understand their culture or where Mai Chen is, of course, a powerful exam- they come from.” ple of success. She arrived in New Zealand Mai Chen has this parting advice for all from Taiwan not speaking any English. She lawyers: “If you don’t get cultural capabil- was first equal in her law school class, ity, then all that will happen is that ethnic won a scholarship to Harvard, and won a lawyers will service and advise their own prize at Harvard for the best human rights people. It is already starting to happen thesis. She has become one of the most now, and it matters as the number of successful and influential members of the ethnically diverse clients in New Zealand New Zealand legal profession. grows.” Building cultural capabilities Educational preparation In our demographically transformed What about the people who are getting society, lawyers must build their cultural ready to enter the legal profession and to capabilities to succeed. Ms Chen gives an spend the next 40 years or more practising example: “I get calls from other lawyers law in an increasingly diverse world? Are ▴ Ursula Cheer, Law Dean at the saying: ‘An Asian client called me, Mai.’ Asia they getting a good grounding in what will University of Canterbury has about 4.5 billion people in 48 countries, so usually I say: ‘Which country in Asia do they come from?’ They reply: ‘Gee, I don’t know’. I then ask, ‘Were they born in New Zealand or have they migrated here?’ They reply ‘I don’t know’. I ask ‘Are they Providing Professional Indemnity and specialist insurance second or third generation?’ They reply ‘Don’t know’.” products to the Legal Profession “If I’m told the client is Chinese, I then Visit www.justitia.co.nz for further information and application forms ask ‘Where were they from?’ You can be Or Contact: Mr Ross Meijer, Aon New Zealand a Chinese person from China or Taiwan, 04-819-4000 Singapore, Malaysia, the United States. [email protected] It matters where people come from as it

65 PRACTICE September 2018 · LAWTALK 921

It was interesting that while there is an She says the faculty also has a large awareness of the rapidly growing number number of students who volunteer at the of law students of Asian ethnicity (now Dunedin Community Law Centre, where 24% of law students), there appear to be they receive practical training on working few measures in place specifically to assist with clients. them or to prepare students for working with Asian clients. University of Canterbury Canterbury Law Dean Ursula Cheer says Canterbury has a specific bi-cultural the Canterbury law school does not have a strategy, says Law Dean Ursula Cheer. It specific strategy to attract or retain Asian requires the graduation of students who students. are bi-culturally confident and competent. “However, we are following their pro- That means that every degree has six gress through our longitudinal study of law kaupapa embedded in it. Professor Cheer students which began in 2014 and involves says the Law School is in the process of Canterbury, Auckland, Waikato and now embedding these kaupapa at all levels of Victoria law schools. This group appears to the LLB, BCJ and at post-graduate level. be equal in numbers to Māori and Pacific “Māori students know that this learn- student numbers combined. It is a silent ing environment reflects the partnership ▴ Jessica Palmer, Law Dean at the group which rarely seeks help and does between Māori and Pākehā established University of Otago not appear to organise through student under the Treaty of Waitangi. The learning associations, but this may not be surprising environment at Canterbury is bi-cultural, as it is in itself a diverse group. The main with dual signage throughout the campus,” difficulty for such students is coping with she says. “Staff are able to take Te Reo the requirement for excellent written and courses and other courses dealing with oral English skills.” Māori culture.” Māori and Pacific students are recognised University of Otago at Canterbury as members of a vulnerable In its recruitment focus, the Faculty group of learners who have more difficulty of Law says it works hard to ensure it in tertiary education, for diverse reasons, covers smaller centres with larger Māori Professor Cheer says. populations, including Rotorua, Gisborne, “Students in these groups are often first Tauranga, Whangarei and the Far North. in their families to enter tertiary education Law Dean Jessica Palmer says the and many have strong family obligations Faculty of Law provides additional tutoring which can make study difficult. For both for Māori and Pacific students and works groups we have a specific member of staff closely with both the Māori and Pacific who follows the progress of students in student support centres on campus who, their first and second year law and in the she says, themselves provide an excellent BCJ and encourages them to persist in support structure. their studies, and refers them to targeted ▴ Mark Hickford, Dean of Law at Two student associations – the Pacific support from our Māori and Pacific support Victoria University of Wellington Island Students' Association and Te Roopū teams.” Whai Pūtake – run events and programmes The law school has a Māori quota be needed in our superdiverse country? to support students, with support from which provides 10 places by which Māori Each of New Zealand’s law schools the faculty. Events include guest lectures, students can be admitted to second year was asked what programmes they have mentoring breakfasts, peer study sessions law without meeting the usual require- to attract, encourage or assist students of and noho marae. ments. Special Pacific tutorials are run different ethnicities. They were also asked if “We also send students to national to assist students in this group to cohort they provided any training or information Pacific and Māori law conferences where strongly. to their students on diversity and working they can network with practising lawyers The law school also supports the Māori with lawyers and/or clients of different and develop a wider support structure,” Law Students' Society (Te Pūtairiki) and the ethnicities. Professor Palmer says. Pasifika Law Students' Society financially Four of the six responded within the “While there is not currently specific and in other ways. time requested. Their answers showed training on working with people of different As well as the initiatives in place, that all are aware of the needs and cultural ethnicities, many of the clinical legal skills Professor Cheer says the law school is differences of their students. In some, par- our programmes develop – such as client developing a final year course which will ticularly the University of Waikato, there interviewing, negotiations – and many include skills such as business mihi and is a very strong commitment to providing of our papers are teaching students to be other cultural skills required for legal bicultural support and teaching. mindful of their clients’ needs and contexts.” practice and other work places.

66 LAWTALK 921 · September 2018 PRACTICE

Victoria University University of Waikato of Wellington Te Piringa – Faculty of Law says its student cohort is made up Pro Vice-Chancellor and Dean of Law of approximately 30% Māori students and 17% Pacific students Mark Hickford says the Faculty of Law and it works hard to meet their needs both in providing relevant is committed to supporting participa- academic context and support services. tion and achievement of students of all Te Piringa (“the coming together of people”) is built on the ethnicities. three core principles of professionalism, bi-culturalism and the “The legal profession in New Zealand study of law in context. From its beginnings in 1990 the faculty should have the opportunity to employ has had a very close connection with the manawhenua of the talented and qualified staff representing Waikato-Tainui and the Kāhui Ariki. the diversity in our society,” he says. There is no admissions quota system and Te Piringa says Māori “The university has a particular focus law students have obtained a place through their academic prepar- on increasing Māori and Pacific student edness for the LLB programme. “Nevertheless, that programme is achievement, such as the programmes and a demanding one for Māori and Pākehā students alike. A number initiatives in place to find our ‘missing one of formal and informal support systems are in place to assist thousand’ – the thousand additional Māori Māori students.” students that the university is seeking to Māori perspectives, concepts and traditions form an integral enrol.” part of several of the compulsory papers, particularly Legal The Faculty of Law holds information Systems, Law and Societies and Jurisprudence, and are acknowl- evenings for the families of Māori and edged in several others. Te Piringa also offers papers which Pacific school-leavers, and visits schools focus on Māori law and issues or on comparative indigenous with high Māori and Pacific demographics experiences with the law. These are offered at undergraduate to discuss enrolment in law and what the and postgraduate levels. law degree entails. A first year course offers a stream or tutorial intended for Māori Up to 10% of available places at 200- students who feel more comfortable in a predominately Māori level law are reserved for Māori students learning environment. The faculty has full-time Māori academic applying under the Māori Admissions and administrative staff and support of Rahui Papa, the faculty’s Process. Applicants under this are Pou Tikanga. Each Māori student is assigned to a Māori member required to have passed all prerequisite of the academic staff to act as adviser of studies. courses and are interviewed by a panel Te Piringa has a dedicated Pacific Island student mentor, to made up of members of the Māori com- provide support to this student cohort. It also offered a special munity, the Law Faculty, and Māori legal paper, Pacific Peoples and the Law, in its summer semester and practitioners. says this was extremely popular. As with the other universities, the The Waikato Māori Law Students’ Victoria Law Faculty says it supports stu- Association – Te Whakahiapo and the dent organisations, including the VUW Law Pacific Law Students’ Association are also Students’ Society which represents all law active on campus. Both provide strong students, and related groups such as Ngā support networks for students and are Rangahautira (the Māori Law Students’ supported by the faculty, local lawyers Association) and the VUW Pacific Island and the judiciary. Law Students’ Society. “The student organisations are self-man- The Faculty employs a Māori Law If you don’t aged, dedicated and driven. As faculty it Students’ Coordinator and a Pasifika Law get cultural is fair to say we see our future leaders Students’ Coordinator, who monitor their capability, then in these organisations. It provides them respective student cohorts, organise the all that will with a forum or vehicle by which to hone Māori/Pacific Tutorial Programme and happen is that their leadership skills and abilities. As a revision sessions before tests and exams, ethnic lawyers faculty we both encourage and foster this,” and contribute to pastoral care. will service and Te Piringa says. The Faculty says training on diversity advise their This year Te Whakahiapo introduced a and working with different ethnicities is own people. It is Māori negotiation competition and the covered in its LAWS 334 Ethics and the Law already starting finals were held on 10 August. The first of course, which is compulsory for students to happen now, its kind in New Zealand, the competition wishing to qualify for admission to the bar. and it matters was student-led and student-driven. Other The course includes the development of as the number universities will be encouraged to adopt transcultural ethics, especially in relation of ethnically the competition model for a national to Māori, and the Faculty says it has also diverse clients Māori mooting competition in 2019, been trialling unconscious bias sessions in New Zealand with national finals at the Te Hunga Roia as part of the course. grows conference. ▪

67 PRACTICE September 2018 · LAWTALK 921

PRACTICE The Pacific Lawyers Association’s viewpoint

The Pacific Lawyers Association was estab- non-European lawyers is entry into the self-promotion when the situation calls for it. lished in 2001. It has a focus on promoting legal profession. For many, they are the To reconcile this disconnect between cultural fellowship and mutual support among Pacific first in their families to attend university, let values and the demands of succeeding in People, identifying and responding to the legal alone become lawyers. The knowledge that a legal career, a Pacific Island lawyer must needs of Pacific communities, and promot- is passed down from one generation to the redefine their cultural values as they have ing and conducting research on any issues next about how the profession operates is always known them. of relevance to Pacific lawyers and Pacific lacking. The relationships that one might be Another key barrier is time. From a people. LawTalk put three questions to the able to call upon to move into that space is Pacific Island perspective, family, com- Executive Committee of the Pacific Lawyers non-existent. It is often these “connections” munity and church commitments must Association which relate to the experience that allow some to move ahead faster and be managed in addition to the usual of Pacific lawyers in New Zealand. They more freely than others. The saying “it’s not workload as a lawyer. Families are often responded as follows: what you know, it’s who you know” holds much larger than the two-point-something true in the legal profession. national average, family events involve the From your observations Breaking into these spaces is often a daunt- extended family, and often the family home and experience, are there ing and sometimes demoralising experience is also called home by more than just the any barriers to success or which can put people off pursuing opportu- immediate family (noting crowded housing personal fulfilment standing nities and this line of work altogether. For is the worst among Pacific Island peoples). in the way of someone who instance, there is often a perception among Especially if you are the first in the family is a lawyer from a different law graduates of minority ethnicities that to attend university, there is no benchmark ethnicity to “NZ European” large law firms are intimidating and hard upon which the demands of law school or “Other European”? places to work in. Others believe that the and a legal career can be compared to. The legal system in New Zealand is based values of large law firms do not align with Younger generations in particular are on a European system, and while it has their own. Once in these roles, non-European looked upon to support older generations, grown over time to increasingly reflect the lawyers face further challenges. Perhaps an both in the home and financially. In these uniqueness of New Zealand and its people, obvious one is cultural difference. circumstances, being unable to commit to it inevitably continues to have its roots Culture is the foundation upon which a putting in additional time is a barrier to firmly grounded in a European dominated person bases their identity. It guides how career progression that other lawyers may culture. This is reflected in recent statistics they conduct themselves and how they make not face. Despite the inherent issues with of the diversity of New Zealand based law- decisions as they move through their lives this, and the fact that many law firms claim yers which show that “European and other” and careers. As an example, Pacific Island to have a culture of “work life balance”, it is make up almost 90%, whereas other ethnic cultures are based on family, community and well known that putting in the long hours groups make up no more than 6.5%, with church. Pacific Islanders pride themselves is one of the ways to get ahead and prove one group as low as 0.8%. These results do on working collaboratively for the collective your worth to your employer. not reflect New Zealand’s working popu- and looking after one another rather than A lack of visibility and diversity in the lation. The cultural make-up of partners in being individualistic and openly competitive. legal profession allows unconscious bias to law firms, Queen’s Counsel and the judici- One of the defining values of Pacific Island prevail in these spaces, which is another, ary have similar disproportions. Cultural cultures is humility. This cultural difference more inauspicious, barrier. Unconscious diversity is a well-used phrase, particularly may manifest in the workplace, for instance, bias is something that firms are actively in the legal profession. However, whether in someone not taking ownership for value trying to tackle of late. While it is perhaps it is reflected in practice is questionable. added to a specific project, or perhaps some- almost impossible to quantify, it is incredibly As minorities in the legal profession, one not putting their hand up for a new and pervasive. Importantly, it is acknowledged lawyers who are not “NZ European” or challenging project for fear or avoidance of that unconscious bias is not simply limited to “Other European” will almost always face appearing grandiose. Experience in the legal skin tone, ethnicity and cultural background. challenges associated with being part of a profession shows that part of what it takes Without significant change, unconscious bias minority group within a European domi- to succeed in a legal career is acknowledg- is something that will exist for a long time nated profession. ing and taking greater ownership of one’s as a challenge for non-European lawyers as One of the first challenges faced by successes, as well as being comfortable in they progress in their careers.

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If there are, what can so, than the first step. An inclusive workplace is one that values be done to address and and embraces individual and group differences. Inclusion is what demolish these? integrates diversity within a firm’s cultural fabric and on a larger Increased cultural diversity will promote scale, the legal culture in New Zealand. cultural awareness and a greater appreci- Firms are often criticised for taking measures in order to simply ation and respect for cultural differences. “tick the diversity box” without any real follow-through. Being In turn, this will facilitate equality and able to take the next step by incorporating cultural differences fairness which are key in overcoming into a firm culture that embraces these differences is the telling barriers to the success and personal ful- part and perhaps too, the most challenging. Measures of inclusion filment of non-European lawyers in New may involve the firm webpage, the physical set-up and décor of the Zealand. The New Zealand population is office, through to firm policies and strategic plans. Inclusion will becoming increasingly culturally diverse facilitate retention of diversity, which in turn allows for quality. which calls for a similar trend in the legal Having diversity at the partnership table or the directors’ table is profession in order to best serve the com- where the true influence of diversity becomes evident and where munity. A profession made up of lawyers the real benefits flow. However, this quality is not achieved without that understand respective cultures, values retention. Retention is largely influenced by firm culture and on and context can only be beneficial. a wider level, the culture of the legal profession. Improving cultural diversity and vis- All members of the legal profession have a responsibility in ibility in the workplace is the starting facilitating diversity and inclusion in the workplace, particularly point. As a first step, this requires having those who are in decision-making roles. It is crucial that diversity robust recruitment procedures in place and inclusion is initiated at the top. Those in management and that ensure diversity and a conscious leadership positions have the ability to drive the direction of effort to attract non-European lawyers to the firm’s culture, to hinder or support certain strategies. This these positions. Some strategies adopted influence is captured in the phrase “trickle-down management”. by firms and organisations include making Those in management and leadership positions therefore play the it clear that they intend to encourage and most important role when it comes to a firm’s success in diversity attract diversity and practicing blind and inclusion. Diversity and inclusion need to be backed by firm recruitment procedures. Others partner policy, which then allows for strategies and plans that must be with organisations that focus solely on actively followed, monitored and reassessed as needed. Diversity supporting non-European lawyers entering and inclusion measures should develop together with, as part of, the workforce by providing training and the firm’s culture and strategic direction, rather than alongside it. mentoring, followed by the establishment Greater diversity and inclusion in legal workplaces would facil- of a platform by which they can connect itate greater role modelling for upcoming and less experienced with potential employers. non-European lawyers. It would also provide greater opportuni- Diversity in the workplace is, however, ties for mentoring, which would be particularly helpful for law only the first part of the equation. Lawyers graduates facing the hurdle of entry into the workforce. One way can be educated on cultural differences but this may be facilitated is by a listing of those who are willing and the true benefits are derived when that is able to be mentors for non-European students and young lawyers. consciously put into practice. The second Shared experiences from those who have gone before and found part is thus creating an inclusive workplace. success or fulfilment will benefit those coming through and yet This step is just as important, if not more to come through. Improving connections between European and non-European New Zealand lawyers, organisations and associations would also have significant ongoing benefits. Correction The first Pasifika member of the judiciary was Judge Epati in In the list of Legal Trailblazers in 2002, followed closely by Judge Malosi in 2002. It was not until 14 LawTalk 920, August 2018, we years later that Judge Moala and Judge Wharepouri moved to the inadvertently stated that A’e’au bench. As yet, there are no Pacific Island judges in the High Court Semikueiva Epati was sworn in as a or above and no Pacific Island lawyer has been awarded Queen’s District Court Judge on 22 February Counsel in New Zealand. Improved diversity in these spaces will 1982. Judge Epati, the first Judge to flow when greater diversity is achieved first, by recruitment, and be appointed of Samoan and Pacific secondly, by retention. Island ethnicity, was actually sworn A greater awareness and appreciation for cultural differ- in on 22 February 2002. The error is ences, a greater presence and visibility of diverse cultures in regretted. the workplace, and improved connectivity among cultures will have significant benefits in career advancement and personal

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fulfilment of non-European lawyers in push to move away from a “one size fits all” approach provides for better-informed and New Zealand. approach in the legal profession towards a more effective advocacy. New Zealand law- system that is tailored to meet the needs yers must make a conscious and concerted There is also an increasingly of an increasingly diverse population is effort to improve their cultural awareness diverse population of people necessary. and understanding, and make a commitment who are or who become A simple starting point is correct pronun- to work on any prejudices or biases they may clients of lawyers. Do you ciation. It is important to make the effort have. It is always important to respect a cli- think New Zealand lawyers (of to say a person’s name correctly and if you ent’s cultural, religious and spiritual beliefs any ethnicity) are adequately are unsure, to make an effort to find out. and values, whether we agree with them prepared to meet the needs A person’s name is the first part of their or not. We will all be better advocates for it. of different ethnic groups? identity. Correct pronunciation is a simple As members of the legal profession, we Significant progress has been made on this gesture but can convey a great amount each have an important role to play in front in recent years. Ongoing professional of respect and make for more effective the movement towards greater diversity, development with a focus on improving communication. Similarly, it is important inclusion and appreciation of cultural diversity and inclusion in the workplace to speak to clients in a language they differences.▪ is certainly encouraging. However, a lot understand – not necessarily their cultural more can be done to adequately prepare language, but in a dialogue in which they Executive Committee members New Zealand lawyers to meet the needs of can fully comprehend. Tania Sharkey (President), Carolina different ethnic groups. More professional A lawyer’s background, values and expe- Tiumalu (Secretary), John Gandy legal education is required around how riences will impact the quality of the legal (Treasurer). Akatu John, Harry Toleafoa, New Zealand lawyers of all backgrounds services they provide, including how well Jessica Pridgeon, Lena Wong, Maggie can better serve and meet the needs of a they can advocate for clients from differ- Winterstein, Panama Le’au’anae, culturally diverse range of clients. A greater ent cultural backgrounds. A well-rounded Stephanie Philcox.

PRO BONO

Chapman Tripp pro bono assistance helps Dignity social enterprise

BY JACINTA GULASEKHARAM AND MIRANDA HITCHINGS

support 8% of New Zealand high schools to gaining Dignity’s initial corporate part- We at Dignity, a New Zealand social to tackle period poverty. Since launching, ners. In particular, Chapman Tripp solicitor enterprise, are grateful to receive pro bono we have donated over 6,000 boxes of tam- Tony Davis committed to understanding assistance from Chapman Tripp. pons and pads to students in Wellington, the buy-one give-one business model and Our organisation provides female sanitary Auckland, and Christchurch to help girls stay provided tailored, practical legal advice to items in the workplace, using a ‘buy-one in school and focus on education. help write our terms and conditions. give-one’ model. Under our model, employers Chapman Tripp’s Wellington Managing Tony’s work on our term and conditions pay a monthly subscription with orders sent Partner Andy Nicholls says the firm wel- of trade were crucial for us understanding varying in size and cost depending on the comed the opportunity to support Dignity the legal framework of our business model number of female employees. For each prod- as part of its corporate social responsibility and how to deliver a better product for our uct ordered, an equivalent product is donated programme. customers and the community. to an “at need” high school to support female “We have been really impressed with We would encourage more law firms to students who may not have access. Dignity’s strategy and commitment to consider pro bono work for social enter- Our current customers include ANZ, supporting both women in the workplace prises as the work can be both challenging Flick Electric, Xero and Cigna. By supplying and young women in New Zealand’s schools. and also critical to help these businesses free sanitary items to their staff through We’re really pleased to have been able to get to market. ▪ Dignity, it has been found that their female help Dignity establish their business model employees feel 85% more personally sup- and start to make a significant impact in the Jacinta Gulasekharam and Miranda ported in the workplace. wider community.” Hitchings are co-founders of Dignity These organisations are also helping Chapman Tripp’s work was instrumental  [email protected]

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PRACTICE Adding significant value to client relationships

BY ELEANOR CATER

long- term, focused giving.” be used wisely. Professional advisers are often Mr Paine says that while many “Once they have structured their surprised to discover how many people align philanthropy with the giving, what they are going to do people get great fulfillment from rich and famous, we are seeing in with their wealth, it can be a real personal giving. There is no doubt New Zealand more people realising weight off their mind. Often clients that presenting knowledgeable that they can give back to society in gain real fulfillment from it.” options on how to give well a myriad of ways. “Once you know Kirsten Harper, partner in CR can be of significant benefit to your options, philanthropy really Law in Feilding, agrees. “Being in lawyer-client relationships. becomes within the reach of almost the position to have conversations The days of giving to charity by everyone,” he says. with clients about social matters dropping money in a bucket or Conversations on giving are and causes, and how they may sponsoring a child are less common. particularly important today as we assist during their lifetimes and There are many options now that are poised to see an unprecedented after their deaths, is a real privilege. allow people to consider structur- inter-generational wealth transfer Such conversations go straight to ing their giving to causes that they from the baby boomer generation the heart of what clients value as care about in a more strategic and about to take place. According to being important to them.” fulfilling way. Knowing what these Philanthropy New Zealand the Bill Holland believes that most options are can lead to very mean- inter-generational wealth transfer people have an innate desire, when ingful lawyer-client conversations. in Australia and New Zealand will their own needs and those of their “Those who work in the law pro- likely exceed $600 billion over the family are looked after, that they fession are keen to establish long- next 20 years. would like to help others. He says term relationships with their clients “If we can direct even a portion of this is frequently illustrated when and I have found that a significant this towards philanthropy it could people are asked, what would they way to do this is to have a mean- change the charity landscape of do if they won Lotto? “Few people ingful conversation about giving or New Zealand forever,” says Mr Paine. are ever going to win the jackpot, philanthropy,” says Bill Holland, a “What a wonderful opportunity this so for most they feel they do not partner at Holland Beckett Law in presents to lawyers and financial have the opportunity to fulfill their Tauranga. advisors.” philanthropic desires. Many are “While most people don’t think of delighted to discover that they can.” themselves as philanthropists I find Why do people give? He says it can be easy, in the that most people do want to make For professional advisors it’s helpful course of a conversation, to see a difference. No client of mine has to know why people give. Financial when a client cares deeply about ever been upset at me suggesting advisor Liz Koh says that, to New the community in which they live giving as an option, and some are Zealanders, giving is about much or currently gives to one or more really very thankful for suggestions more than technical aspects and tax charitable causes. on how they can structure their reduction, it brings a very real level “They may be interested in cre- giving for the long-term.” of personal satisfaction. ating a personal or family legacy Tony Paine, CEO of Philanthropy “I really enjoy talking to my or want to make a difference but New Zealand, says that there are clients about giving. I find most aren’t sure where or how to start. many more options for giving often it’s a warm conversation moti- They may even be considering a that most people do not consider: vated by their desire to impact the private trust or foundation, but are “From the obvious small, one-off community and their passion for a concerned about cost and complex- donations through to purpose-based cause. Many people are also seeking ity … all of these are conversation endowment funds structured for reassurance that their wealth will starters about structuring giving in

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GROWING GIVING THROUGH AN ENDOWMENT FUND traditional charitable giving,” says Mr Holland. What is an 2003 (year 1) 2018 (after 15 years) 2033 (after 30 years)* “For example, establishing an Endowment Fund? endowment fund is like having It’s a fund where the original gift… your own charitable trust without all the hassle. It enables clients to is invested and focus on their giving and the causes will grow over time… that they care about, which is what ultimately want they want to do, with only the and it enables them to give for the income (interest) from the fund long-term.” spent on chosen EDNA BROWN FUND $57,000 in cumulative grants $138,500 in cumulative grants established with a $67,200 gift causes… $84,700 endowment balance $112,500 endowment balance to the ACORN FOUNDATION What is an endowment fund? that will support Initial gift grows & Original balance & grants Original balance & grants the local pays out the income distributed is growing. The gift distributed will continue to grow. Endowment funds can be estab- community earned each year has more than doubled. The gift is nearly 4 times the forever. size of the original gift. lished when a client decides to * Estimated growth rate of 7.5 % for future years & annual distribution of 4%. give to a cause for the long-term. Their original gift is not spent, it is ▴ Example of an Endowment Fund, supplied by Community Foundations of New Zealand invested and the income from the investment goes to the person’s chosen cause forever. a more meaningful way.” conversation to have and opens up Endowment funds can be estab- opportunities. lished through local Community The research – why Yet a 2015 QUT Survey, which Foundations (currently 16 in New should you even have highlighted the importance of the Zealand). They are low cost and the philanthropic professional advisor’s role as a low hassle, managing all legal, tax, conversation? conduit for clients to realise their audit, investment management and Studies from Canada indicate that philanthropic pursuits, found that governance requirements. 76% of clients agree that discussing only one-third of advisors discuss “Once the fund is set up it’s so philanthropy with their advisor philanthropic issues with their easy for the client,” says Bill Holland. strengthens the relationship. clients, with fewer than three out “They simply get to decide where American research from 2013 of five advisors saying they have the proceeds go. They can choose to has also revealed that such phil- the skills and knowledge to advise give now, and experience the joy of anthropic conversations would clients about philanthropic issues. giving while they are alive, or give likely improve the client-advisor later through a gift in their will. Both relationship and strengthen future What are the options ways I see clients get enormous business opportunities. Further, that for giving? satisfaction and a real comfort that high net worth individuals: These are many and varied and can they are giving well to causes that • Appreciate and value the advice include the following: they care about.” of their professional advisors in • Give now, or give later (through Liz Koh agrees: “Many people helping them reach their philan- a bequest in a will); like the way that endowment fund thropic aspirations; • Give small amounts regularly or giving is a more strategic way to • Prefer to discuss their values and a lump sum; give, and will benefit their beloved passions regarding giving, rather • Give directly to a charity or cause; chosen causes forever. In terms of than the technical aspects and tax • Give in perpetuity (forever) to a the philanthropic conversation it advantages; cause through establishing an can be an easier conversation to • Would like to have a philanthropic endowment fund with the local have too as you are advising on a conversation in the beginning community foundation; way to give, not a specific cause; in stages of their relationship with • Create own trust or foundation, terms of ethics that is a fine thing their professional advisor. which the donor can manage to do.” ▪ A 2016 UK study (Legacy Giving and (with the option to transfer the Behavioural Insights Report) found fund to the local community Eleanor Cater  eleanor.cater@ that the estate-making process foundation to manage on the xtra.co.nz is a freelance writer and can reliably shape whether people donor’s death). works in the philanthropic sector. leave assets to charity in their will. “Knowing the difference in types of She is an elected trustee at the Further, if the conversation of giving can be a real eye-opener for Porirua Community Trust and giving is normalised as something clients. Most are delighted to dis- works for Community Foundations other people do, it is an easier cover more strategic ways beyond of New Zealand.

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PRACTICE Focus on ... Napier The sunshine city that keeps on growing

BY CRAIG STEPHEN

moving them from A to B. Sailing Art Deco buildings and festi- played a big part in our lives and we ▴ Kevin Callinicos, a partner at vals, tip-top beaches, endless sun, travelled a lot, to regattas around the Willis Legal a sporting culture, nearby vineyards, country,” says Kevin who has four and a varied community are among children, all now grown up. many of Napier’s attributes. Mr Callinicos first worked in Which provides plenty of temp- Wellington and overseas, and was tation for lawyers to take up jobs asked to help in his brother Peter in the city or stay where they are. Callinicos’ Hawke’s Bay firm. Peter is There’s all sorts for people of all now a Family Court judge in Napier. types, and for property lawyer Kevin “The breadth of work when I first Callinicos the work he deals with came up was very diverse and you fits his character. had to learn fast, and I daresay it’s “It suits my personality, the type still the case today.” of work I do. I’ve got a very personal-based practice, I’ve grown Housing and up with my clients, I got a kick out industry boom of helping young people into their Steve Lunn is the senior partner homes or their first business, and of Lunn & Associates based on ▴ Steve Lunn with his son Dan, then as they grow older the busi- Shakespeare Street, adjacent to the Lunn & Associates’ practice ness has developed and I’ve helped famous Cabana Hotel, where many a manager them through asset protection and legendary artist has performed over the likes. the decades. Mr Lunn has been in farming base. And it’s an area that “There’s a loyalty that you develop Hawke’s Bay since 1975 after a spell is growing. from your clients as a result of that in Gisborne. “There’s a real emphasis on the and now I’m heading towards Tourism, culture, horticulture, housing market here in Hawke’s Bay. retirement my clients have got big and the port all bring in considera- Because it’s regarded as a desirable decisions to make about downsiz- ble work and dollars into the region. place to live and because it has a ing, preserving their wealth, and “Napier is a very pleasant town pretty benign climate compared to personal care and welfare matters, with a lot of Art Deco buildings, and other places, there always seems as well as dealing with elderly par- over the last 30 years the promotion to be a high in-built demand for ents, so it’s a very private-based of Art Deco – the Art Deco itself has residential properties,” says Steve, relationship with my clients.” been here since the 1930s, of course, who was a top middle distance Mr Callinicos is a partner at Willis but was ignored for decades – and runner – and ran the first leg for Legal one of a handful of law firms the fruit and the vines right through the Otago team alongside “more on Vautier Street. the province has changed Napier to illustrious athletes” Dick Tayler, “Life is so much easier here, I a remarkable degree,” he says. Stuart Melville and Bruce Hunter toyed at one stage with moving to Lunn & Associates specialises that set the 4x800m national record Auckland but my kids would have in residential and commercial in 1971, which still stands today. He done half of what they would have property as well as business law was also a representative for Otago here, because of the logistics of and asset planning and has a large in rugby and is on the Hawke’s Bay

73 Rugby Union board. ▴ The historic Art Deco Smith & The firm has a sporty background Chambers buildings in Napier with Steve’s partner, Chris Morgan,  tjabeljan b a former national age group rower and practice manager Dan, a PGA the President of the New Zealand golf professional. Law Society’s Hawke’s Bay branch. “We are regularly involved in She says while changing lifestyles high-level residential transactions; and working methods impact on we had one the other day where a working life, the local Bar remains client of ours purchased a property collegial. for $2.8 million, which is the sort of “In a small place like Napier money that even a year ago wouldn’t everybody used to know everybody. have been on the horizon. It’s the That was partly because the Bar used hot housing market that stands out to be smaller but also practitioners ▴ Julia Trautvetter, a property most in terms of the focus but we’ve dealt with each other directly and solicitor at Sainsbury Logan & got orcharding which is going very face-to-face on so many matters but Williams well just now, and there’s pastoral now it’s all done electronically.” farmers. Hawke’s Bay is very much She notes that the local Bar a mixed economy. showed it can come together fol- “We’ve had a run in recent years lowing the recent death of young – even before the current housing lawyer Jessica Greig. boom started – a number of people “The profession really rallied from the UK were buying up houses. round when Jess passed away. They can come over here and buy Everyone’s initial reaction was to a high-value house because of the look after each other, personally exchange rate. And a lot of people and professionally; people were are relocating from Auckland. We very keen to pick up files or do act for a lot of Indian and Chinese whatever was required to help her people, though they tend to focus law firm (Bay Legal). Her funeral ▴ Maria Hamilton is a barrister on businesses.” was standing room only, the judici- and the President of the New ary and the local Bar were all there. Zealand Law Society’s Hawke’s Looking after each other “Every year we have a Bar Dinner Bay branch. Maria Hamilton is a barrister and and that is always really well

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▸ The Art Deco State theatre building in Napier  Tony Hisgett b

attended and that’s a sign that people still enjoy getting together for social functions and see value in putting names to faces and knowing, at a personal level, the people they are dealing with in transactions. That’s really valuable because when you are picking up the phone or sending an email you know the person on the other end.” Attracting new lawyers Ms Hamilton says Napier has the same issues in attracting talent to law firms as most provincial towns, but the city offers a lot for newly and recently admitted practitioners. “We still attract really good people, and they get really good experience, and quite quickly at a reasonable level – you’re not is originally from Hawke’s Bay and returned from waiting six months to get into Auckland, where she was studying and working as a court. And there’s some good big law clerk, two years ago. commercial clients based here, the “It was a no-brainer for me to come back and enjoy vineyards, the farming industry, what the Bay has to offer. It’s nice being able to go down and the port. to the beach for lunch and everything is accessible and “A lot of young lawyers are from you don’t have to worry about the drive to work taking here so are coming back home, but half the morning." anecdotally we hear that it is hard Ms Trautvetter (the middle T is dropped) says there is to bring in new graduates; however, no thought of moving to a big city as many ambitious there will always be someone who lawyers often do. takes a good job.” We still attract “No, no, it wouldn’t cross my mind. I really enjoy it Kevin Callinicos admits succes- really good here because of the lifestyle factor. You can still work sion is an issue but it is something people, and they and have a really good job but be able to do things Willis Legal works hard to tackle. get really good afterwards. I really enjoy my sport, so there’s lots of “It’s like any business you’ve experience, and hills around and I do quite a bit of running and I’m also got to be working at it all the time, quite quickly involved with the Hawke’s Bay Rowing Club.” you’ve gotta have an eye to the at a reasonable Ms Trautvetter says Sainsburys, in particular, is man- future; succession is a big issue for level – you’re aging to attract younger lawyers. us and getting good gender balance not waiting “A lot of younger people want to stay in the cities and and diversity within the firm is a six months to not want to branch out into the regions, but from my priority and we’re actively working get into court. perspective you can get the same good quality jobs as on strategies there. It’s like any And there’s well as the lifestyle in the regions which is a definite business, it just doesn’t happen, some good big draw factor. you have to work at it." commercial “There’s a few younger lawyers who have recently clients based been employed by Hawke’s Bay firms. Another person No-brainer here, the in our firm Jonathan (Norman) was working in big firms, Julia Trautvetter, a property solici- vineyards, the in places like London, but he has come to the Bay for the tor at one of the area’s biggest law farming industry, lifestyle and for his family and another young solicitor firms, Sainsbury Logan & Williams, and the port. we have just taken on has done the same.” ▪

75 PRACTICE September 2018 · LAWTALK 921

PRACTICE Carl Rowling – the Napier lawyer with the big-time boxing connections

BY CRAIG STEPHEN

Given the way business can be done in 2018, with everything a mere send button away, the opportunities for using a provincial town as a base have become increasingly within reach. Which is certainly the case for Carl Rowling, the Napier-based Director of Rowling Law & Strategy – a name that reflects the work over and above just the legal involvement that many jobs entail. Mr Rowling moved to Hawke’s Bay from Auckland three years ago where he had become “stuck” after coming back from ▴ Carl Rowling (right) with Joe Parker the United States in the late 1980s. While working in New Zealand’s biggest city, for three large involved with the Rugby Tens in Brisbane firms, and as General Counsel for Auckland City Council helping it and Australian fighter Jeff Horn’s big- ease into the super city local authority, Carl and his wife Meghann money square off with boxing legend regularly explored Hawke’s Bay. “Every time we were driving or Manny Pacquiao in July 2017. “Because we flying back to Auckland we would say to each other ‘why don’t were the lead promoter on that there was a we live here?’.” huge amount of legal work to get through.” Distance no problem Heavyweight boxing The distance from the main centres hasn’t proved an issue as he and big money deals deals with boxing promoters and multinationals around the world. He has done the legal work for Auckland “The way that legal practices work now, particularly the way heavyweight Joseph Parker’s last few that I operate as a sole practitioner, it didn’t really matter where I fights, including the multi-million bash lived. I spoke with a number of my key clients and they endorsed for three world title belts against British that view and said it didn’t matter to them where I lived. In fact, superstar Anthony Joshua in London some were quite jealous.” earlier this year. Mr Rowling’s bread and butter is the oil and gas industry, local It is in a way romantic work if you are government, corporate commercial and major events. a sports fan, but nevertheless, the basics Through his work with Auckland Council, he picked up some remain the same and there’s plenty of legal work with the sports promotion and events management negotiations and to-ing and fro-ing that company Duco Events, beginning with the rugby league tourna- will test the patience of any lawyer. ment, the Auckland Nines. “The provision of services agreements, as “There is no tyranny of distance, almost all my work can be we call them, between the promoters, are done by email and telephone. I’ve been surprised how little I’ve pretty complex beasts, particularly when had to travel for meetings; in saying that, I have been caught up you consider that they are for an event that in quite a large M&A deal that is unfortunately likely to see me is only going to last, perhaps, a few hours. up in Auckland quite a bit in the next few months. But that’s the There’s massive amounts of money moving, exception rather than the rule.” you’re looking at host and international Following the work with the Auckland Nines, Carl has been broadcaster agreements, sponsorship and

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PRACTICE host city agreements, venue deals and there will often be side agreements in relation to the boxer and his camp, so there’s a whole suite of contracts that have to be put in place What to do and they all have to link together.” He says the guts of the deal are hammered out by promoters before when you anything comes to him. “It’s easy enough to document all those things that have been agreed, it’s another discover you’ve thing getting all the details sorted out and making sure that there’s still an agreement once you have dealt been hacked with all those other issues.” “I really enjoy this work, I am lucky in that the Duco guys are or defrauded fantastic to deal with, Joe [Parker] is just a lovely guy and very smart, so he knows what matters, and that BY GEOFF makes it a lot easier. Sometimes, ADLAM the people on the other side can be really difficult, with one European promoter being a complete night- in a property transaction were mys- mare. I sent at least three default There are some nasty criminals teriously altered so that the money letters to that promoter under our out there, just waiting to infiltrate went to an unknown bank account contract just trying to get them to your IT system and steal all your and by the time you discovered it, play with a straight bat. But that’s money or that of your client. They’re had gone offshore. Or you may even not unusual in this game.” well hidden under rocks somewhere fall for one of the old Nigerian scams Mr Rowling also worked with on this globe and are rarely brought in which you help a friendly person Duco on Parker’s controversial to justice. Which means if you’re from outside New Zealand recover defeat to Britain’s Dillian Whyte involved in a New Zealand law firm a debt due from an equally obliging in July, which was also negotiated of any size, you’re going to have to debtor. Let’s not worry about the with Joshua’s promoter Eddie try to protect your IT assets and, if last one: email crime these days Hearn, who Carl describes as “a you don’t, to take action as soon as is far more sinister and difficult to delight to do business with”. Parker you notice a problem. combat than something which most lost on points after 12 rounds but We’re bombarded with messages lawyers are now able to spot quickly. a knockdown that gave Whyte one about cybersecurity. The Law Society round by two points was seen by regularly issues warnings. CERT So, what should you do many as due to a headclash, and NZ and Netsafe run cybersecurity when you’re the victim could have swayed the decision. events and weeks, and the media of a cybercrime where Given the millions that are gen- is full of stories of the havoc caused money is involved? erated from the broadcasting rights by hacking or email fraudsters. The with pay-per-view television the key commonly-used description “scam” Ring the bank immediately breadwinner for the promoters and also sounds friendlier and less threat- “If someone realises they have fighters, it’s not surprising that the ening than “crime”. This all tends to been conned, the first calls I’d main emphasis in the deal-making dampen the message of maintaining recommend they make are to the process is on this aspect. IT security, which becomes just one of banks,” IT advisor Damian Funnell In his first year and a half in the Bay many dangers in running a business advises. “The quicker they ring the Carl Rowling only did one local job in 2018 rather than a very real risk. banks, the more chance they have due to his main focus in areas such as Until you find you’ve been hacked. of minimising the damage. Then oil and gas, and corporate commercial Suddenly, you find that law firms I’d ring the Police, then CERT NZ. law, and of course sports. Recently, and clients all over New Zealand I think CERT are great for advice, however, he has conducted work for have received an email from you but I don’t think they’d be much two of the Hawke’s Bay councils and (personally) inviting them to click use after the fact.” the Big Save group, which has its HQ on a suspicious link or attachment. Hackers are pretty keen to get in Napier. He has also been appointed Or you discover that the payment “their” money offshore as quickly to the board of Sport Hawke’s Bay. ▪ instructions you sent the other party as possible. The bank has to be the

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Talk to your IT people If your firm has been hacked, someone needs to thor- oughly investigate your IT system to see what has been compromised. This could include installing a backup from before the time the hacking occurred.

Advise organisations such as CERT and the Law Society The more that is known and shared, the more aware people will be of the threats. CERT NZ has built up a big repository of resources and guidance. Contact them via their website (www.cert.govt.nz). Netsafe has an online form (www.netsafe.org.nz/report/) which can be used to report a problem. The New Zealand Law Society’s inspectorate team can also provide advice and assistance (04 472 7837) and if you email [email protected] with details of what has happened we can include them on the Law Society website section on email scams or in articles such as this. What about the situation where lots of people suddenly receive emails purporting to come from you – your name, your firm, your signature?

Get hold of your IT people urgently You’ve been hacked. Someone has got into your system and stolen information. You need urgent assistance from an IT expert to assess the magnitude of the problem and to fix it.

Put a message on your phone system first call you make if you discover local police station. Don’t ring 111 People will probably start ringing you to let you know someone has got you to misdirect therefore unless someone is deliv- they have received a weird email from you. Some may money to the wrong account. ering an immediate and believeable ask if it’s OK to click on the link. You need to be fixing threat. And if you ring your local things rather than answering the phone. Tell people Ring your insurer police station you’ll be invited to it’s a malicious email, it was not sent by you and they The criminals don’t do all their trot down there some time and should delete it immediately. hard work for peanuts. Big sums fill in a form. This is therefore not of money are usually involved. something you need to bother about Put a message on the home Whether you have special cyber immediately – more for insurance page of your website cover or not, this is a very tangible paper trails if you have lost money. People will also come to your website to see if they can threat to your business. You need “If you are reporting an e-crime, it work out what’s going on. Place an advisory message to advise your PI insurer of what is important to keep any electronic on your home page. has happened, how, and what you’re evidence,” the Police advice on doing about it. reporting electronic crime says. Let your clients know “For information on preserving Because your IT system has been penetrated, information Ring the other side electronic evidence consult your on your clients may have been compromised. You need to If another party is involved, let IT system’s administrator or secu- advise them of this and (after your IT people have checked their lawyers know. You may need rity specialist or visit the Netsafe out your system) reassure them that their information to work together quickly to protect – Gathering Electronic ‘Evidence’ is secure. An appropriately worded email may suffice if all parties. web page.” you can’t ring every client personally.

Ring the Police Keep a copy of emails Advise the Law Society This is a crime and it is the job of Netsafe has information on how We cannot send a message out to all lawyers in New the Police to try to solve crime. The to copy headers and other details Zealand advising of what has happened. Unfortunately, Police advice on electronic crime is from emails (www.netsafe.org.nz/ this is not uncommon. However, we often get inquiries to report criminal matters to your digital-content-records). and notifications from other lawyers and firms when

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someone is publicly hacked, so it is a good idea to advise Diary of an the manager of your Law Society branch. actual fraud Some safety measures The following outline of events occurred in a Check, check, and … check New Zealand law firm recently during a prop- Damian Funnell says technology solutions to safeguard erty settlement. Unfortunately, it’s not unusual. IT systems are often not available, as the attacks usually The criminals involved had hacked the client, rely on social engineering – getting into a victim’s system not the firm, but lawyers and law firms are also with their (unwitting) assistance. vulnerable. “My experience is that the strongest defence lies in education and process. All of the good law firms who I’m ❶ The lawyer emails the client requesting deposit dealing with will insist on a deposit slip or screenshot of several hundred thousand dollars into the showing account details, even if they’re being provided firm’s trust account. The client was expecting with the account details in person by the client. I think the email. this is a really essential practice,” he says. “Others even go so far as to ring the bank they are about ❷ The client’s IT system has been hacked. The to transfer money to, to double check that the funds are hackers intercept the email and they draw up going to the desired entity.” a new trust account deposit slip and create Where a deposit to a bank is involved, double check an email address very similar to the lawyer the number of the destination account – a phone call (replacing one letter with a numeral). They to your client is a good idea. forward the email to the client.

Don’t do it alone ❸ The client is confused by the numbers on the In all the movies, two people are usually needed to arm deposit slip. She decides to test it by sending the nuclear warhead. Everyone seems to accept that a small amount, and then emails the hackers’ this is necessary to remove the risk of a mad person fabricated email address requesting confir- destroying us all. So why don’t we do it for our own mation that the funds have been received. businesses? “Everyone should use a process by which at least two ❹ The hackers respond in the name of the lawyer, parties have to approve any transaction over a certain saying he has received the test amount. size,” says Mr Funnell. “This significantly reduces the risk of mistakes or fraud, as the second party should ❺ The client transfers the remainder of the money check all the details before approving the transaction.” into the fraudulent account.

Extreme care when transferring funds overseas ❻ Two days later, on the day before settlement, Never transfer funds to an overseas account without the lawyer notices that the funds have not doing significant due diligence. arrived. He rings the client, who tells him of the “I for one would refuse to work with clients or firms confirmation email – which the lawyer knows who can’t supply local account numbers – there’s just he has not sent. too much risk when wiring money overseas,” Damian Funnell says. ❼ Realising that hackers are at work, the lawyer asks the client to send him all the emails (to a Make sure every person in your trusted email address). The lawyer detects the workplace follows secure procedures fake email address and deposit slip and imme- A law firm got into hacker trouble recently because a diately advises the client to contact her bank. temporary employee – there for just a week – didn’t know that the firm prohibited everyone from click- ❽ Shortly afterwards the lawyer receives an email ing on attachments sent without any explanations. from the “client”, saying she had tried transfer- Cybersecurity is more than just a notion to pay lip- ring funds but there has been a problem and service to. It could stop your business losing a lot could the firm cover for her over the weekend. of money. It is clear this is not the client – in the language Rule 11.4 of the Rules of Conduct and Client Care spe- used and, of course, in the knowledge that she cifically provides that a lawyer must take all reasonable has been hacked – but it shows the hackers steps to prevent any person perpetrating a crime or are still tracking the client. fraud through the lawyer’s practice. This includes taking reasonable steps to ensure the security of and access to ❾ The bank confirms that the money is still in electronic systems and passwords. ▪ the country. The funds are later recovered.

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PRACTISING WELL

for this, but one big culprit is a Let’s have some business model built on six-minute units and furrowed brows. Law is serious business, and in business fun out there billing and efficiency matter. Human things like how brains and bodies and social systems work matter BY KATIE much less. Why would you spend COWAN time playing when you could earn a few hundred more dollars for the firm in the same amount of time? It ones just block the bad feelings and would make no sense. I will be joining you in the audi- give you a temporary high, usually ence today, readers. I will be sitting followed by a crash. I’m not sham- Humans need joy beside you and stealing your choco- ing you for numbing; numbing is a and connection late biscuits and saying to no one in sticky, terrible, ubiquitous part of I am being facetious, because of particular that I could really go a cup our culture and I do it too. I’m just course it makes all the sense in of tea if anyone was making one, distinguishing the numbing stuff the world. It makes sense from the and then jiggling my leg annoyingly from the joy stuff as I make the plea human perspective, where humans while we read together. Because that you do joy stuff. need joy and connection and a sense today’s message is as much for me Right then. of being true and alive, and it even as it is for you, and no matter how makes sense from a work perspec- many times I learn it I seem to need Starting with the micro tive. At the big picture level, happy to keep learning it again. My argument here has two prongs: employees work faster and are more Today’s message, a controversial the macro and the micro, but today’s engaged. At the small picture level, one with a thousand caveats, is: do prong is just the micro. The micro is especially if you are doing intense things that make you feel joyful. a good place to start because if you work, time fully away doing idle Before we get into it, let me really embrace it the macro can take or joyful things allows for better address your concerns. No, I don’t care of itself, possibly even before I background processing of infor- mean only do things that make you get to write a column about it. mation, leading to greater clarity feel joyful. Yes, I do mean do things So let’s talk micro. Regularly and more frequent breakthroughs that make you feel joyful even if you doing things that are fun and in your work. I know of more than feel you haven’t earned them. No, I joyful make life better. For me, one senior litigator who schedules don’t mean that if you cannot feel joy activities include reading very “staring out the window” time the joyful right now that that is your funny and very human non-fiction day before big hearings. fault. Yes, I do mean do things that books, listening to big music very Remember, readers, I’m not make you feel joyful even while your loud, gazing at my dachshund in advising doing your joyful pursuits to do list extends to the horizon. her sunbeam, and watching mas- during work time; you do need to Before we get into this too far, terclasses on career pursuits I do get your work done. I am saying do let me make a distinction. In this not intend to follow but that I like these things in a lunch break, at the article I will advise you (and myself) to put on like a cloak. For you, they weekend, after work, or before bed, to do more joyful things. I want us, may include running about on top and you may find you can suddenly though, to hold on to the difference of a hill, making macarons, fiddling do your work that much more between joy activities and avoid- with a car engine, or playing obscure easily. (The utopia version of this ant numbing activities. The line German board games with friends. is employers who do understand between them is not always clear, The activities I’m talking about are the role play plays in excellence and the same activity can fall into ones that engage you and take you and productivity at work and who different categories for different over, make you feel curious and allow you to do fun things at work, people. Numbing activities feel joyful and vital. Most of them don’t but we are some way off from that.) good because they offer a temporary take very long (the length of a song Remember, also, that I am not reprieve from bad feelings, whereas to the length of an afternoon) and saying only do joyful things. It joy activities are inherently energis- you don’t have to wait until you’re feels necessary to repeat that ing and/or restorative. They stoke on holiday to enjoy them. point because, as all or nothing feelings like flow and curiosity and We lawyers are very good at types, most people reading this will connection, whereas the numbing suffering. There are many reasons read the message as “drop all your

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rewards must follow work, and to deviate from that framework would make you a bad person indeed. The problem is that that basic premise, basically a good one, has distorted, so that the work required to earn rest, joy, time off, idleness, is never done – can never be done. It is the problem of positioning your goalposts on the horizon. That is a terrible place for them, not least because it is very hard to get them to balance on the water. To you people – my people – let me tell a crazy story about what happens when you ignore the “keep working at all costs” voice. In my case, in order to do a fun thing before I have “earned” it, I have to have an argument with a very powerful and persistent voice in my head that is resistant to logic and fairness. The times that I have just bypassed the voice and done the fun thing, a funny thing has happened: the sense that I had to earn the fun thing just … disappeared. I realise again that as humans we have a capacity for joy and play that is innate, and that we should let ourselves access that capacity. It makes us more alive. As I say, this has happened many obligations and go to the beach all day”. That might be slogging through the ones that I know times and the lesson has yet to take good advice, but it is not what I am saying, and I have are good for me that are pretty hard permanent hold. But I’m hopeful. not met many lawyers who were at risk of it. going (you know, vegetables in book So please, dear readers, take a The alternative to working all the time is not falling form). One time recently, though, I moment to enjoy something, to into a life of sloth where you meet none of your obli- decided to read a fun book (Animal by do that thing you love but never gations. It is just planning a dinner party for friends. Sara Pascoe, thanks for asking) before seem to have time for. Do it today, Or doing a day trip to the country on a sunny day with I finished my book on creativity in or this weekend, or plan it into next your favourite music playing. Or writing dumb short schools. I mean, can you imagine. But month. And then do more of it. Let’s stories about a character named “Bip” in the notes app then I noticed, reading the fun book embrace the micro version of doing on your phone. that made me laugh energised me. joyful things so much I never have Living without regular joyful pursuits is very hard. It is It sent me eagerly into my unrelated to come back and write about the draining. It makes you feel sluggish and low and makes work, humming a happy tune. I was macro version. It’s important. ▪ you snap at people and feel slightly out of control at all more productive the week I was times. If we bring it back to the work context, simple reading that book than I had been Katie Cowan  katie@ overwork reduces productivity significantly over time, to in some time. symphonylaw.co.nz is a former the point where it might feel like you are working harder Some of you reading this, if you lawyer. She is now director of than ever, yet you are able to get less done. are anything like me, will still be Symphony Law, a consulting prac- fixed on whether or not you have tice for lawyers. Katie is advice Joyful is productive earned your fun activity. The logic columnist for LexisNexis NZ’s By contrast, feeling joyful is a very productive emotion. of the practical benefits of doing Learn Law life platform and hosts Personal anecdote time. fun things just because they are fun The New Lawyer podcast which I read a lot, and always put off the books I know will does not persuade you, because you can be found at  thenewlawyer. make me laugh out loud and feel utterly delighted while learned when you were little that co.nz

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LEGAL INFORMATION How Judges Decide Cases – Reading, Writing and Analysing Judgments, 2nd edition By Andrew Goodman, Wildy, Simmonds & Hill Publishing, 2018

REVIEWED BY GARRY WILLIAMS

Years later when I was deciding written about the nuts and bolts of writing judgments or, When I was eight years old I had what to do when I went to uni- for that matter, how one should go about analysing them. to stay home from school for a week versity, I am quite sure that my This is why Mr Goodman’s work How Judges Decide because of an ear infection. memories of the show influenced Cases is so valuable. As I had an irresponsible parent my choice to study law. It looks at how cases are decided and judgments are (and only one at that), I was allowed Now you may be wondering, written (or should be written) and as Lord Faulks QC to watch daytime television, which what all this has to do with a book says in the foreword to the work, it: in those days consisted largely of called How Judges Decide Cases. “… admirably takes apart the engine of a judgment. soap operas like The Days of Our Lives Well, another aspect of Crown It gives advice on how to write one. It analyses what and The Young and the Restless. But Court that caught my notice was processes are used consciously or unconsciously there was another show I watched that when the case portrayed did in arriving at a decision, and explains the various that week. It was called Crown Court. not involve a criminal charge, the levels at which a judgment can be read. There is Crown Court was produced by judge would give a short judgment a particularly valuable insight in how to decide Granada TV for the ITV Network in immediately at the conclusion of whether a judgment should be the subject of an the UK and ran from 1972 to 1984. the barristers’ closing addresses and appeal.” The concept of the show was usually without the aid of any notes How Judges Decide Cases is not an expensive work; it that it depicted an entire court case (or, at least, he or she would appear only costs £45. It is only 234 pages long and is divided taking place in the Crown Court of to do so). Back then I thought that into eight sections. the fictional town of Fulchester. this would be much too hard to do Section 1 is entitled How Judges Decide Cases and deals Each case progressed over three in real life and that this must just with such topics as the mechanics of fact finding, how episodes with the prosecution or have been a bit of dramatic licence judges really approach questions of weight and how plaintiff ’s case presented in the first enabling the scriptwriters to move impression actually influences a judge when deciding two episodes and the defence and the action on for the purposes of factual conflicts. result in the third. the show. Surely, in reality, a judge What comes out clearly in this section is that while An interesting aspect of the show would take time to reflect and care- most judges adopt the approach of first seeking out was that if there was a jury for the fully consider a case before deciding agreed facts as an anchor or base from which to build up case it was made up of members the litigants’ fates? a picture of what they can safely find is the more likely of the public who were eligible for It wasn’t until I was older that I thing to have happened when forced to choose between actual jury service. The “verdict” realised that sometimes judges give conflicting events, many judges do admit (at least pri- would then be delivered as if in a judgment immediately and some- vately) to a fairly strong intuitive approach – they will fit real court case without the actors times they reserve their decisions. the facts to a gut feeling of whether someone is lying, or portraying the accused, barristers And it wasn’t until I was older still of where the justice of the case rests. The reluctance of or judge knowing the outcome in that I realised that the writing of judges to admit to the use of such an intuitive approach advance. This often required the judgments is really a highly individ- is possibly best captured in the following passage from writers to produce two endings for ual exercise governed by very few Sir John Donaldson’s paper entitled Judicial Techniques the show, each reflecting the poten- absolute rules. in Arbitration and Litigation (1988) which is referenced tial outcome reached by the jury. In fact, remarkably little has been in the work:

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of the opposing arguments. a judgment. The material relating to unconscious bias in this part of These topics stress that in order the work is also fascinating. It is now well-known that to persuade an appellate tribunal our thought processes involve the use of cognitive “short that the judge below was wrong, cuts” to decision-making, known as intuitive heuristics. it is necessary for the advocate to Daniel Kahnman received a Nobel Prize for his work clearly understand why the judge in this area and his internationally best-selling work was wrong, be able to demonstrate Thinking Fast and Slow which relates to the use of that fact with clarity, and withstand intuitive heuristics in the context of human judgment a rigorous testing of that contention. and decision-making under uncertainty is discussed in It is the material in section 7 some detail. This is because the use of such cognitive that I found the most useful. This “shortcuts” often leads to very wrong conclusions being was because it explained very drawn. Put simply, the brain uses such shortcuts to clearly the mechanics of fairly speed up decision-making and unconscious biases are criticising a judgment. In essence, a by-product. There are, of course, times when this sort of Mr Goodman’s thesis is that there quick decision-making is useful (eg, when we are faced are principally four ways in which a with danger); however, it is not a good way to make judgment can be adversely but fairly decisions when dealing with difficult questions where criticised, namely that the: “It was always said of Lord the outcome may have a serious impact on people’s lives. (i) Judge was uninformed Denning that he claimed to Mr Goodman points out that judges would do well to Here the judge lacked some decide intuitively what should familiarise themselves with Kahnman’s work in order piece of knowledge that was be the outcome of a case and to be able to recognise and mitigate the effects of such relevant to the problem he or then to go on to analyse the law unconscious biases. she was trying to solve. To fairly in such a way as to justify his Section 2 relates to Appellate Judgments and strongly criticise the judgment on this intuitive decision. Of course he suggests that, in the UK at least, in the vast majority of basis you must be able to state was wrong to say that. Quite cases an appellate court will have formed a preliminary the missing piece of knowledge wrong. Most of us do exactly view prior to the hearing. In other words, it appears that or information (whether factual that, but we would not dream the occasions when appellate judges in that jurisdiction or legal), show its relevance of saying so.” have an open mind on an issue to the extent that prior and show how the conclusion This section of the work also sets to the hearing they genuinely don’t know their answer reached would have been out a checklist that Lord Bingham to a particular problem are rare. different. is said to have used for judicial fact Mr Goodman suggests that this usually renders an (ii) Judge was misinformed finding. It is enlightening and is to appeal hearing “an exercise in the reality testing of a Here the judge has asserted be recommended. It can be sum- pre-existing view”. that which is not the case, that marised as follows: Section 3 – Writing Judgments, Decisions and Awards is, the judge made findings or a Identify any common ground – is the part of the work which offers practical guid- assertions contrary to fact. The between the parties; ance as to how to produce a judgment that is cogent, judgment proposes as true or b Resolve the issues of primary fact: well-reasoned and, most importantly, will satisfy even more probable that which is (i) Consider the unchallenged the loser that he or she has been given a fair, albeit in fact false or less probable; material; disappointing, decision. it is based on a claim to have (ii) Weigh the force of con- The most important part of this section is the abridge- knowledge the judge does not temporary documents, ment of Lord Neuberger’s paper entitled First Instance possess. particularly those coming Judgments: Some Suggestions set out by Mr Goodman. (iii) Judge’s approach was illogical in into existence prior to the It contains indispensable guidance on this aspect of the sense that the reasoning was dispute emerging, or any judge-craft. not cogent matters independent of Sections 4 and 5 are entitled Reading Judgments and Here the judge has commit- human recollection. The Use of Language in Judgments respectively. They are ted a fallacy in reasoning. Mr c Consider what happened against focused on techniques for identifying the words, sen- Goodman says: “This problem the background of independent tences or propositions in a judgment that really matter generally stems from two material; against the same back- for the purposes of analysing it with a view to an appeal. sources. Either the judge has ground consider what could not Sections 6 and 7 are the most interesting parts of fallen into the trap of non have happened. the work for an advocate as they relate to the topic of sequitur, where what is drawn d Consider what must have hap- Analysing Judgments. as a conclusion simply does not pened irrespective of whether Section 6 focuses on deconstructing a judgment by follow from the reasons offered, one or both parties say it did not. having regard to the judge’s reasoning and legal logic. or that of inconsistency, where e Weigh dispassionately the merits Section 7 outlines suggested techniques for criticising two things he has tried to say

83 LEGAL INFORMATION September 2018 · LAWTALK 921

LEGAL INFORMATION are incompatible.” (iv) Judge’s analysis of either the facts or the law was not complete The basis of this critique is to say the judge has not solved all the problems International he or she started with; or has not made use of all the available material; or did not see all the ramifications and Indigenous implications; or has failed to make all the distinctions relevant to his task. It struck me that structuring a critique of a Rights in judgment using this method is a relatively simply but ingenious way to identify those findings in a judgment that can be the Aotearoa New subject of complaint on appeal. Section 8 is about Using Law Reports. It is a very short section and is, to be honest, the Zealand part I found least useful. In essence, it contains the prudent warning that headnotes are editorialised material and therefore Edited by Andrew cannot always be relied upon as accurate or as capturing all the truly important points Erueti in a judgment. The solution proffered to these potential pitfalls is the obvious one: read a judgment carefully before consulting REVIEWED BY DR MARIA A POZZA or relying on its headnote. AND MIAANA WALDEN How Judges Decide Cases has been meticulously researched – Mr Goodman interviewed judges at every level, from deputy district judges to justices of the This is a unique contribution of informative and critical United Kingdom Supreme Court. The list essays on the effects of the United Nations Declaration on the of judges thanked in the preface amounts Rights of Indigenous Peoples in this country. Comprising 232 pages, to a veritable Who’s Who of the UK judiciary including the table of contents, index and a copy of the Declaration and includes Lords Neuberger, Bingham (as an appendix), the book provides an overview of the chal- and Sumption. lenges of enforcing indigenous rights by relying on international Newly appointed judges and arbitrators mechanisms within domestic frameworks. The authors place the will find How Judges Decide Cases to be Declaration at the heart of various issues affecting Aotearoa, such invaluable, while experienced practition- as the Treaty of Waitangi and its policies as well as settlements, ers will find it indispensable as a guide to regulation of mining activities and the status of Māori children. the deconstruction of judgments for the Essays are presented in a concise manner and cover a wide range purpose of appeal. of topics, which are essentially divided into three sections. The Incidentally, I tried to find an episode of first section lays down the framework of the issues raised by the Crown Court recently to see whether it was Declaration concentrating on the matrix between international as good as I remember. It was quite hard indigenous rights and human rights laws. The second section to track down but eventually I found some considers the consequences of the Declaration for specific areas old episodes on YouTube. It has dated quite of indigenous rights in Aotearoa paying particular attention to the a bit and the production values aren’t a Treaty of Waitangi and interpretative issues within our domestic patch on those of Downton Abbey, but it’s framework. And the final section outlines the activities by var- still reasonably enthralling. But courtroom ious international institutions and provides an overview of the dramas always are, aren’t they? developments at the international legal-level. Wildy, Simmonds and Hill Publishing, The book concludes that while measures have been slowly 978-0-854902-45-3, June 2018, paperback, adopted in Aotearoa, more needs to be done in order to better align £45. ▪ with the Declaration towards greater recognition and protection of indigenous rights here. Garry Williams  williams@ Andrew Erueti provides a unique mixed-model interpretative richmondchambers.co.nz is a barrister approach when dealing with issues concerning the Declaration, in in Richmond Chambers and a member chapter one. Mr Erueti’s model deviates from the orthodox view of the NZBA Training Committee. that the rights contained in the Declaration are considered to be

84 LAWTALK 921 · September 2018 LEGAL INFORMATION

author provides a useful analysis over the the procedures available (in this case the international legal framework in respect special procedures) to give better effect to of indigenous children’s rights and the the indigenous rights as affirmed in the advancing indigenous children’s rights in Declaration. Aotearoa. The World Conference on Indigenous Linda Te Aho’s chapter five offers an Peoples convened in 2014 is discussed by overview on the progression of claimant Tracey Whare who served as the secretar- groups settling grievances through Treaty iat that served on the Indigenous Global settlements with the Crown. Ms Te Aho, Coordinating Group between 2012 and presents analysis of the rigid nature of the 2014. Her chapter provides an excellent New Zealand framework in which claims overview on the indigenous response to are brought and offers considered solu- the World Conference, outcomes of pre- tions in order to better utilise the existing paratory meetings leading up to the event, framework (with a few suggested modifi- obstacles relating to implementation of the elaborations of classic human rights by cations) to assist with future settlements appointment of the Conference facilitators, postulating instead that such rights are that may enable Māori to garner greater and the challenges with drafting the World underpinned by normative considerations self-determination. Conference Outcome document. While the between a decolonisation model and a Sarah Down and Andrew Erueti address author highlights some positive results and self-determination framework already in the implications of the Declaration for an expectation of progress following the operation at the international legal-level. Mr Māori interests in minerals as well as the Conference, she concludes that there is still Erueti calls for greater opportunities to be regulation of mining activities in Aotearoa much work to be done in this area. made available to Māori especially through in their chapter. A concise outline of some Natalie Baird provides the final chapter political authority (ie, iwi political authority). protections for Māori contained in the concerning the use of the Declaration to Chapter two by Kirsty Gover explores the regulatory framework for mining is high- the United Nation Human Rights Council’s interplay between existing presumptions lighted and the authors present the case Universal Periodic Review. This chapter governing Māori interests in New Zealand for the ongoing struggle for recognition of describes the Review’s mechanism and law (such as the principle of legality) with Māori interests in natural resources. The process which is pivotal to the function the Treaty of Waitangi presumption, authors present a reform model that lends of the Declaration and offers comparisons the presumption of consistency with greater weight on international indigenous between it and Australia, Canada, and the international law, and the New Zealand rights afforded to Māori, coupled with United States. Bill of Rights Act 1990 (BORA). Analysis innovative co-management agreements The book provides an overview of the is presented from the New Zealand (between the Crown and Māori). status and effects of the Declaration. It judiciary perspective, which tends to Claire Charters offers a unique per- offers a prism of perspectives in the matrix reflect a consideration of the common spective on the Declaration which is of indigenous rights in Aotearoa New law presumptions and BORA. Ms Gover’s drawn from her experience in providing Zealand at the international and domes- commentary of the judicial approach taken expert testimony on the Declaration to tic level. Presented by foremost experts in the Takamore case (Takamore v Clarke the Waitangi Tribunal in its inquiry into in this field, the book is an excellent read [2013] 2 NZLR 733) is excellent and reviews “Whaia te Mana Motuhake.” Ms Charters and provides a good source of information the Declaration’s relevance to Māori claims examines the case and concludes that the in this area. in the New Zealand courts. case findings will be such as to “compel Contributors: Andrew Erueti, Kirsty Gover, Chapter three considers the effect of the the New Zealand Government … to engage Matthew S R Palmer, Matthew S Smith, Declaration in domestic law and in particu- with the Declaration”. This case will be of Claire Breen, Linda Te Aho, Sarah Down, lar focuses on the Treaty of Waitangi 1840. particular relevance and use to practition- Claire Charters, Fleur Te Aho, Tracey Whare, Matthew Palmer and Matthew Smith assess ers undertaking work in this field. Natalie Baird. the extent of the Declaration’s reach. The Chapter eight offers a perspective on the International Indigenous Rights in Aotearoa tone of the chapter is realistic and leaves complexities of the United Nations Human New Zealand, Victoria University Press, 978- the reader under no illusion that there needs Rights Council’s special procedures as a 1-776560-48-6, September 2017, paperback, to be improvements in this area. mechanism for monitoring and promot- $40 (GST included, p&h excluded). ▪ In chapter four, Claire Breen provides ing implementation of the rights of the commentary on the rights of Māori chil- Declaration. Fleur Te Aho in this chapter Dr Maria Pozza  maria.pozza@gqlaw. dren in Aotearoa and focuses on the effect restates the challenges posed by Claire nz and Miaana Walden  miaana. of the Declaration and the Convention Charter’s chapter seven in that indigenous [email protected] are associates with on the Rights of the Child. Overall, the advocates and Māori need to engage in New Plymouth firm Govett Quilliam.

85 LEGAL INFORMATION

LEGAL INFORMATION New Zealand Law Society Library services: The hidden gold

BY GEOFF ADLAM

interloans. Joining forces in a new the subscription databases mean New Zealand’s lawyers have national service and the combined access must be on a Law Society had access to a national law library resources which became available Library computer or wi-fi network service for nearly a decade, but it is meant the Law Society was able to in one of the research libraries or possible that many do not realise establish a network of dedicated a courthouse kiosk. The licensing exactly what is available. computers in courthouses around agreements mean the databases The libraries and the library the country. This has given lawyers cannot be accessed by lawyers service are well known to regular free access to a very comprehensive directly from their desktops. users. However, hidden within range of legal information. There is one exception. While the single Law Society computer The Law Society Library is oper- negotiating kiosk access to the terminal which can be found in ated as a private library, meaning databases, the Law Society was dozens of courthouses around the it is not open for public access. able to secure direct desktop access country are hundreds of up-to-date The Library is available to all cur- for New Zealand lawyers to the legal information databases which rently practising lawyers, associate AGIS Plus Text database. This has provide the most comprehensive members of the New Zealand Law been developed by the Australian collection available in New Zealand. Society, members of the judiciary, Attorney-General’s Information The New Zealand Law Society and Ministry of Justice court staff. Service to support the study of has operated a national law library Commonwealth-based law. It service since 31 January 2009, when Over 400 legal databases includes abstracts and articles in the former Auckland District Law Ten years on, the computers – or many areas of law from law journals Society library was transferred to kiosks – are still available, with published from 1975 onwards. A link the Law Society. This joined the 46 in 32 different locations. They to AGIS is available on the “Journals” library assets of the other district still allow members of the legal section of the Law Library Databases law societies and meant the profes- profession to search over 400 reg- pages on the Law Society website. sion was served for the first time by ularly updated legal databases. The Access requires entry of the lawyer a single integrated collection. research libraries located at the High login issued by the Law Society plus With the print collection housed Courts in Auckland, Christchurch password. in the three research libraries and Wellington each have a number The databases contain all the at Auckland, Christchurch and of kiosks among the books and familiar New Zealand legal infor- Wellington, the Law Society Library periodicals. The smaller courthouse mation sets, from LexisNexis, is co-managed by the head librari- libraries have a single kiosk. Printers Westlaw and Wolters Kluwer. ans of each, Janice Woolford, Julia are available at each kiosk and Important databases of Australian, Wartmann and Robin Anderson. research results can also be emailed Canadian and United Kingdom The three libraries had worked or saved to a USB memory device. material are also available, includ- collaboratively since 1989 to produce The terms of the agreements the ing the Incorporated Council of Law the electronic LINX database and New Zealand Law Society has with Reporting which publishes a wide also co-operated, as libraries do, on the multinationals who provide range of UK law reports.

86 At the heart of the collection is Use of the kiosk terminals is not area was much reduced, but careful the Law Society Library’s LINX necessary in libraries where the shelving and management meant service. LINX is a comprehensive Law Society is able to provide free nearly all the collection from the database of New Zealand case wi-fi access from personal mobile old Durham St library could be law and legal writing which now devices. At present this is available accommodated. has nearly 30 years of records. It in Auckland, Christchurch, Hamilton What the earthquakes did demon- summarises cases and indexes and Wellington. strate was the value of digital legal articles and currently consists of information. If you have a computer over 242,000 records. Available as A decade of ups or a phone and access rights, you part of LexisNexis New Zealand’s and downs can quickly find yourself searching Linxplus service, LINX can also be The passage from 2009 to the or reading the equivalent of several accessed from the library kiosks as latter half of 2018 has not been the million books on LexisNexis or Linxplus. smoothest for each of the three Westlaw. This was reinforced in Technology has developed rap- research libraries. November 2016 when another major idly since the network of kiosks There have literally been some earthquake wreaked havoc in the was established in 2009. This has ups and downs. The September 2010 Wellington library. The late night resulted in regular upgrades. At Canterbury earthquake knocked quake also activated the library’s present the Law Society is upgrad- some books to the floor but did no sprinkler system, meaning many ing the computer hardware with damage, although the other major books suffered water damage. By larger solid state hard drives to law library in Christchurch, at the December all books were removed improve the speed of processing University of Canterbury, suffered and taken to a document warehouse online queries. These are faster major damage. The February 2011 in Porirua where they were assessed and have four times the capacity. earthquake was a different story, for damage and dried out. The new drives are expected to be bending and breaking shelves, Staff were back in the library by in place around the country by the dumping and damaging the books April and by mid-2017 the traditional end of September. and – because the library was in the library quiet was absent as electri- Another challenge in maintaining red zone – keeping staff away from cians installed new lighting, carpet the kiosk service comes when the the library. Library staff cautiously and ceiling tiles. The computers were publishers who provide the infor- ventured back several months later running, but it was a library without mation make new releases which and started repairing and re-shelv- books. As part of the remediation require more memory or other ing, only to begin all over again of the whole courthouse complex, system resources. The kiosks have when a 6.3 magnitude aftershock the library lost the second floor. A been built so that they flush out tossed the books back to the floor. new shelving system – bolted to any user data when a new session The Law Society Library moved the floor and braced against further commences. A re-start of a kiosk into the new Justice Precinct in earthquakes – had been installed which seems sluggish will often December 2017. As is common for by November and the books were restore it to a healthy state. libraries in the digital age, the floor returned by Christmas.

87 LEGAL INFORMATION September 2018 · LAWTALK 921

Holt, Gregory John Will Would any lawyer holding a will for the above-named, late of 1/2 Abercrombie Street, Howick, Auckland, formerly of Queensland, born 5 February 1960 who died Notices 25 May 2018 please contact Claire Soper, Clendons Barristers and Solicitors: The Auckland library has also  [email protected] undergone disruption. When the  09 306 8005 Astrop, Basil Ministry of Justice decided to  PO Box 1305 Auckland 1140 build a new jury-capable courtroom Cairncross, Noeline Elizabeth Mary and a conference room in part of Li, Miaomiao Cross, Audrey Muriel the High Court Library space, the Would any lawyer holding a will for the above- Harmer, Ngarama named, late of 14 Lakeridge Close, Northcross, library staff and some of the book (Claire) Kereama collection had to relocate to the Auckland , who died on 21 August 2016, please Holt, Gregory John contact Haiyan Yang, Yang Lawyers. Auckland District Court Library Li, Miaomiao  09 638 5601 or fax 09 638 5603 for nearly half a year. Moss, Stuart Edwin  PO Box 99865 Newmarket, Auckland 1149 2018 library services Pope, Robert Darryl Shaw, Anthony Edward Moss, Stuart Edwin Trained librarians are based in the Theunissen, Paul Would any lawyer holding a will for the three research libraries. The library Wu, Tai-Peng above-named, late of Feilding, Retired, who is accessible during usual business died on 23 July 2018, please contact Mark Richardson, Lawyer, Marton.: hours, but 24/7 card access can be  [email protected] arranged. The Auckland Library is  06 327 8606 also staffed until 8pm from Monday  PO Box 216, Marton to Thursday. The Law Society has a Astrop, Basil total staff of 17 FTE employees and Would any lawyer holding a will for the Pope, Robert Darryl headnoters are also contracted to above-named, late of 72A, Stanniland Would any lawyer holding a will for the above- Street, Sunnyhills, Auckland who died on assist with the LINX database. named, late of 7 Wallingford Street, Grey Lynn, 20 February 2018 please contact Manel Auckland, Call Centre Administrator, born While the library can be used Samarakoon, Kidd Legal: on 4 October 1990, who died between 26th for do-it-yourself research, a range  [email protected] May 2018 and 28th May 2018, please contact of legal information services are  02 206 31136 Abigail Ruth Cea Tecson, Park Legal:  provided. These include “document 7A, Ryan Place, Manuaku  [email protected] delivery”, which is provision of  09 475 5027 or fax 09 475 5504  requested judgments, legislation, Cairncross, Noeline Elizabeth 12-14 Como Street, Takapuna, Auckland Mary 0622 articles or other commentary at a charge of $17 per item, or $22 per Would any lawyer holding a will for the above-named, late of Taumarunui who Shaw, Anthony Edward item (GST not included) for urgent died on 12 July 2018, please contact Mark Would any lawyer holding a will for the requests (fulfilment within two Richardson, Lawyer: above-named, late of Auckland, Retired, hours).  [email protected] born 20 April 1928 who died on 2 January A team of experienced legal  06 327 8606 2017, please contact Alan Lambert Wilson,  researchers is available for on-de- PO Box 216, Marton Fry Wilson Todd & Co.:  mand research on any legal subject. [email protected] Cross, Audrey Muriel  07 828 7548 Research services are charged on a  Would any lawyer holding a will for the PO Box 4, Huntly time basis at $40 per 15 minutes above-named, late of 9 Tenterten Avenue, or $60 per 15 minutes for urgent Mt Eden, Auckland, Secretary born on 19 Theunissen, Paul requests (fulfilment normally December 1936 who died on 5 June 2017, Would any lawyer holding a will for the within four hours). Again GST is please contact David Liu, Yu Lawyers Limited: above-named, late of Tokoroa, Stacker Driver, not included.  [email protected] born 24 July 1963 who died on 6 July 2018,  09 620 8228 please contact LMC Law: The services may be requested by  PO Box 96135, Balmoral, Auckland 1342  [email protected] filling in an online form on the Law  07 886 0553 Society Library website, by email Harmer, Ngarama (Claire)  PO Box 250, Tokoroa 3444 or by phone. Kereama The Law Society Library receives Would any lawyer holding a will for the Wu, Tai-Peng an average of 780 document deliv- above-named, late of 801 Collinge Road, Would any lawyer holding a will for the ery requests and 540 research Mayfair, Hastings, age 72 who died on 11 above-named, late of 14B Rossmore Tce, Murrays Bay, Auckland , who died on 26 requests each month. The most July 2018, please contact Cheryl Whitworth, Gifford Devine: February 2017, please contact Haiyan Yang, commonly requested research  [email protected] Yang Lawyers. topics are in criminal, family and  06 873 0420  06 876 0018  09 638 5601 or fax 09 638 5603 insurance law. ▪  PO Box 148, Hastings 4156  PO Box 99865 Newmarket, Auckland 1149

88 LAWTALK 921 · September 2018 CLASSIFIEDS · LEGAL JOBS

LAWYER NEEDED

The Law Connection in Raumati and Waikanae has a position available for an experienced Lawyer who practises in conveyancing, trusts and estates, elder law and all aspects of general Expression of Interest practice except litigation. Physiotherapy Board Professional Conduct Please forward your cover letter & CV to: Committee Lay Members Paula Wingar (Practice Manager) The Physiotherapy Board is seeking expressions of interest from the PO Box 2079, RAUMATI BEACH 5255 legal profession for Lay Members to sit on its Professional Conduct or via email to: [email protected] Committees (PCC). A PCC is a statutory committee appointed by the Physiotherapy Board to investigate complaints, notifications and matters referred by the Board under the Health Practitioners Competence Assurance VACANCY — INTERMEDIATE CROWN PROSECUTOR Act 2003 (HPCAA). Role description Almao Douch has a vacancy for an Intermediate Crown Prosecutor. As a member of a PCC you would be required, along with the other The firm is the office of the Crown Solicitor at Hamilton and members, to undertake investigations and make recommendations a solicitor with experience in criminal jury trials is required to or determinations to the Board. The time commitment varies conduct the prosecution of trials in both the High and District depending on the matter before the PCC. Courts together with attendances in relation to other aspects of Successful members may be expected to attend a half day training the Crown Solicitor’s practice. in Wellington prior to being appointed to a PCC. Remuneration will Applications from interested practitioners with appropriate be at approved Board rates. experience are sought. Knowledge of the HPCAA and health sector experience would be In each case the terms of employment will be negotiated to reflect an advantage. the experience and ability of the successful applicant. Applications accompanied by a CV should be addressed to: If this opportunity is of interest to you, please provide Almao Douch, PO Box 19173, HAMILTON 3240 - Attention: R G your CV to [email protected] by 31 Douch or emailed to [email protected] October 2018.

COMMERCIAL, CORPORATE AND PRIVATE CLIENT LAWYERS

Do you want the independence to practice the law and look after your clients’ needs but not be tied down by endless administration and compliance issues? Do you want the support of a firm that invests heavily in both professional and personal development but also gives you the flexibility to focus on your practice? We offer an environment where you can achieve all of the above with a ‘down to earth’ team, in a modern working environment. You may be a partner wanting a change in the way you practice; a sole practitioner looking to work with like-minded friendly colleagues; a senior associate who is treading water. We are offering an extremely generous opportunity for the right person.

All enquiries will be handled in complete confidence. If this sounds like an opportunity for you please contact our Practice Manager: Megan Wallace at [email protected]

89 LEGAL JOBS · CLASSIFIEDS September 2018 · LAWTALK 921

HUMAN RIGHTS REVIEW TRIBUNAL DEPUTY CHAIRPERSONS (AUCKLAND, WELLINGTON OR CHRISTCHURCH)

Applications are invited from persons wishing to be considered for appointment as a full-time Deputy Chairperson of the Human Rights Review Tribunal based in Auckland, Wellington or Christchurch. Lecturer/ The Human Rights Review Tribunal hears and determines proceedings lodged pursuant to the Human Rights Act 1993 (the Act), Senior Lecturer/ the Privacy Act 1993 and the Health and Disability Commissioner Act 1994 after complaints have first been dealt with by the Human Associate Professor/ Rights Commission, the Privacy Commissioner and the Health and Professor in Law Disability Commissioner pursuant to their respective Acts. The principal matters considered by the Tribunal concern privacy issues, The Faculty of Law invites applications for positions at any human rights, discrimination and health and disability issues. The level from Lecturer to Professor, depending on the Tribunal has jurisdiction to award damages of up to $350,000 and qualifications and experience of the successful applicants. to declare an enactment inconsistent with the right to freedom from Faculty of Law discrimination as affirmed by the New Zealand Bill of Rights Act 1990. The University of Auckland is New Zealand’s leading The Act provides that for any particular case the Tribunal must University, and one of the world’s major research comprise: Universities. • the Chairperson and/or a Deputy Chairperson • two other persons appointed by the Chairperson for the purposes The Auckland Law School is ranked as one of the best law of each hearing from the Panel maintained by the Minister of Justice schools in the world in the QS World University Rankings. under section 101 of the Act. It is the largest law school in New Zealand, and has an international reputation for research and teaching Further details and an application pack are available for excellence. the Ministry of Justice website www.justice.govt.nz/about/ Situated in the heart of the legal precinct, the Faculty of statutory-vacancies. Law has strong links to the legal profession and the The closing date for applications is 21 September 2018. judiciary. The Faculty aspires to provide a complete legal education, preparing students for legal practice as well as many other careers in an internationalised world.

Its thriving undergraduate and postgraduate programmes offer the largest range of courses of any law faculty in TENANCY ADJUDICATORS New Zealand, and attract high calibre students. The Auckland, Manawatu and Rotorua Faculty enjoys excellent international links. The opportunity

Adjudicators are required for the Tenancy Tribunal in the Auckland, The Faculty of Law invites applications for positions at any Palmerston North/Whanganui and Rotorua/Taupo areas. level from Lecturer to Professor, depending on the qualifications and experience of the successful applicants. These are part time positions with a standard commitment of one to two days per week, but more days may be available if desired. Successful applicants will be committed to undertaking Some flexibility may be necessary to fit the demands of the roster. high quality research and research-informed teaching. All Faculty members are expected to contribute to the These positions will cover a range of court locations. Please refer foundational courses, and to develop and teach specialist to the individual application packs at http://www.justice.govt. elective courses. The Faculty of Law is seeking applicants nz/statutory-vacancies/ for detailed information. with interests and strengths in any areas of the law, and in particular in the foundational courses. The successful applicants will have a legal qualification or relevant experience in adjudication. Applicants must demonstrate For further information see www.law.auckland.ac.nz, or a capacity for impartial adjudication, the ability to conduct contact the Dean’s Executive Assistant via a hearing professionally, and an ability to manage hearings [email protected] with self-representing parties. They must also be able to Applications must be submitted online via demonstrate efficient work habits, good time-management and https://opportunities.auckland.ac.nz/jobid/20010/1/1 an ability to make clear, logical decisions. Good oral and written communication skills are essential, as is computer literacy. Some by the closing date of Sunday, 23 September 2018. flexibility to travel would be beneficial. The University is committed to meeting its obligations under the Treaty of Waitangi and achieving equity For more information about these positions, contact Tania outcomes for staff and students in a safe, inclusive and Togiatama, PA to Principal Tenancy Adjudicator – email: tania. equitable environment. For further information on services [email protected] or phone (07) 921 7478. for Maori, Pacific, women, LGBTI, equity groups, parenting support and flexible work go to www.equity.auckland.ac.nz Applications for the position close at Direct enquiries only please - no agencies. 5.00pm, Thursday 13 September 2018.

90 CPD Calendar

PROGRAMME PRESENTERS CONTENT WHERE WHEN CIVIL LITIGATION

EVIDENCE AND TRIAL Chris Patterson This practical workshop covers the core skills of evidence, Wellington 8 Sep PREPARATION proof and factual analysis (EPF), as well as approaches to (FULL) investigations, the development of case theory and how to Christchurch 17 Nov 3 CPD hours manage the paperwork associated with any case. A must for all litigators. Dunedin 24 Nov Please note: the workshop takes place on a Saturday morning and is limited to 25 participants – register soon!

INTRODUCTION TO CIVIL Nikki Pender This workshop is an excellent opportunity for recently Wellington 15-16 Oct LITIGATION SKILLS Paul Radich QC admitted practitioners to develop practical skills in civil Christchurch 26-27 Nov Pru Steven QC litigation in an intense small-group workshop. You will learn 9 CPD hours James Wilding how to handle a single fi le from beginning to end, be able to identify and understand the various steps in the process, develop the practical skills you need to handle this and a range of other litigation fi les, competently and confi dently.

MEDIATION FOR Virginia Goldblatt This workshop builds on the NZLS CLE workshop Mediation Auckland 16-18 Nov LAWYERS PART B – David Patten for Lawyers Part A which provided opportunity to CIVIL/COMMERCIAL & Denise Evans understand the process of mediation and to learn to think FAMILY like a mediator – not a lawyer. It provides further opportunity to observe a civil mediation, to dissect it and to practise 15 CPD hours mediation skills.

COMPANY, COMMERCIAL AND TAX

INJUNCTIONS AND Sarah Armstrong The need for an injunction arises in urgent situations where Christchurch 30 Oct OTHER EMERGENCY Tim Stephens practitioners are typically under signiﬁ cant time pressure. Wellington 31 Oct RELIEF This seminar will provide an overview and explanation of aspects of injunctions and other emergency orders; as well Auckland 1 Nov Webinar 31 Oct 2.5 CPD hours as practical advice and guidance on ﬁ ling applications and responding to them. 2 CPD hours

CRIMINAL

DUTY LAWYER TRAINING Local Presenters Duty lawyers are critical to the smooth running of a District Various Sep-Nov PROGRAMME Court list. Here is a way to gain more of the knowledge and skills you need to join this important group. This workshop is 11* CPD hours made up of several parts. *CPD hours may vary, see website

SEXUAL VIOLENCE Jonathan Temm The Sexual Violence Pilot Courts commenced in the Auckland 13 Oct CASES – BEST PRACTICE Marie Dyhrberg QC Whangarei and Auckland District Courts on 1 December ADVOCACY Dr Emily Henderson 2016 and are ongoing. Many District Court Judges have now received special training in the unique dynamics of sexual 6.5 CPD hours violence cases, the use of communication assistance, and alternative ways of giving evidence under ss 102-107 Evidence Act. Supported by experienced lawyers, communication assistants and psychologists, this workshop for intermediate and senior litigators in criminal cases will provide learning and practice in the fundamental changes to cross-examination techniques that will be part of the new court approach. Note: full day workshop is on a Saturday.

CRIMINAL LAW Chair: The 10th Criminal Law Symposium again promises to be ‘the Wellington 26 Oct SYMPOSIUM The Hon Justice highlight of the professional year’, as one previous attendee Live Webstream 26 Oct Simon France put it. Chaired by The Hon Justice Simon France, this ‘must- 6.5 CPD hours attend’ day brings you a range of high calibre speakers covering the latest developments and caselaw in evidence, sentencing, criminal procedure and issues in multi-defendant trials. EMPLOYMENT

EMPLOYMENT LAW IN A Chair: Employment law in a time of change - 2018 is an exciting Auckland 18-19 Oct TIME OF CHANGE Gillian Service time to be an employment law practitioner. We are Live Webstream 18-19 Oct undergoing widespread change: global change to working 13 CPD hours arrangements and the gig economy; changes to New Zealand’s employment laws; changes to society; and changes that we are seeing within our own profession. Join us for the biennial Employment Law Conference with an exciting range of topics and a stellar line up of presenters.

For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz Online registration and payment can be made at: www.lawyerseducation.co.nz

PROGRAMME PRESENTERS CONTENT WHERE WHEN FAMILY

THE FUTURE OF FAMILY Chair: A once in a lifetime opportunity to hear Lady Hale, President Auckland 20 Sep LAW – KEYNOTE Prof Mark Henaghan of the Supreme Court (UK) on the future of family law. Lady Live Webstream 20 Sep LADY HALE Hale will be joined by an elite line-up of speakers who will give their perspective on the future direction of family law, 6.5 CPD hours highlighting the issues and challenges from a diverse range of viewpoints.

INTRODUCTION TO John Adams This workshop will show you how to run a domestic violence/ Wellington 19-20 Nov FAMILY LAW ADVOCACY Usha Patel interim parenting case from go to whoa. Through precedents, Auckland 26-27 Nov AND PRACTICE videos, a book of materials, and performance critique, this course, recommended by the Legal Services Agency, is sound, 13 CPD hours participatory and proven.

GENERAL

AML/CFT – WIRE Henry Brandts-Giesen The AML/CFT Act may require lawyers to gather fi nancial Webinar 11 Sep TRANSFERS, SARS, Neil Russ data and report certain transactions and activities to the PRIVILEGE AND Financial Intelligence Unit of the NZ Police. However, these CONFIDENTIALITY obligations are di cult to reconcile with traditional duties of confi dentiality and legal professional privilege. These are 1.5 CPD hours complex and di cult issues which are already exercising the profession. Topics to be covered: suspicious activity reports, wire transfers, duties of confi dentiality and privilege, and practical due diligence issues for the legal profession in the fi rst 3 months.

AN INSPIRATIONAL Chair: A once-in-a lifetime opportunity to hear Lady Hale, President Auckland 21 Sep CAREER – KEYNOTE Kathryn Beck of the Supreme Court (UK). Live Webstream 21 Sep LADY HALE The conference will have as its theme a focus on stories of success and inspiration. Lady Hale, a champion of gender 6 CPD hours equality and diversity, and the ﬁ rst woman Law Lord and justice of the Supreme Court will present the keynote address. An unprecedented line up of inspirational women will join Lady Hale on the programme. This is a remarkable once-in-a lifetime event and should not be missed. Please note: numbers are strictly limited.

TRUSTEES – Vicki Ammundsen Lawyers traditionally assume o ce as a trustee for private Webinar 26 Sep PROFESSIONAL Jeremy Johnson clients and for charities, however, this role has become more LIABILITY complex and trustees are increasingly exposed to a greater degree of legal risk. This webinar will discuss the role of 1.5 CPD hours the trustee with a focus on explaining how to fulﬁ l this role and meet obligations while minimising the inherent risks, particularly in respect of professional liability issues.

MEDIATION FOR Virginia Goldblatt Mediation knowledge and skills are an increasingly important Wellington 12-14 Oct LAWYERS PART A – Adam Lewis adjunct to legal practice. Many more clients are taking disputes UNDERSTANDING to mediation (because it works) and the more that legal MEDIATION advisers know about how it works the better. In addition, practice as a mediator extends the service that lawyers can 14.5 CPD hours o er the public.

PRACTICE & PROFESSIONAL SKILLS

TRUST ACCOUNT Philip Strang To qualify as a trust account supervisor, you must complete Wellington 13 Sep SUPERVISOR TRAINING 40-55 hours’ preparation, attend the assessment day and pass Auckland 13 Nov PROGRAMME all assessments. The training programme consists of self-study learning modules to help you prepare for assessment. Christchurch 22 Nov 7.5 CPD hours

TRUST ACCOUNT Philip Strang How do you keep a trust account in good order? This practical Auckland 19 Sep ADMINISTRATORS training is for new trust accounting sta , legal executives, Hamilton 20 Sep legal secretaries and o ce managers. 4 CPD hours

LAWYER AS NEGOTIATOR Jane Chart Negotiation is a vital skill for every lawyer and improved Auckland 30-31 Oct negotiation skills can help avoid unnecessary litigation and Wellington 14-15 Nov 11.5 CPD hours produce better settlements more e ciently. Attend this workshop to gain an understanding of the risks and beneﬁ ts of various negotiation strategies and techniques.

To contact us | Visit: www.lawyerseducation.co.nz Email: [email protected] | Phone: CLE information on 0800 333 111. CPD Calendar

PROGRAMME PRESENTERS CONTENT WHERE WHEN PRACTICE AND PROFESSIONAL SKILLS

LOGIC FOR LAWYERS Prof Douglas Lind Attend this workshop to learn a practical framework Wellington 15 Oct and gain speciﬁ c analytical tools for working with legal Auckland 18 Oct 5 CPD hours arguments. The workshop provides su ciently complete, but short and concise descriptions of those argument forms and logical fallacies (errors of reasoning) most relevant to legal practice.

ADVANCED LOGIC FOR Prof Douglas Lind An advanced workshop designed for lawyers who have Wellington 16 Oct LAWYERS attended the Logic for Lawyers workshop.

5 CPD hours

READING ACCOUNTS Lloyd Austin A workshop to enable you to unlock the mysteries of Auckland 5-6 Nov AND BALANCE SHEETS fi nancial documents, gain an insight into the world of Hamilton 7-8 Nov accounting and make you more e ective and confi dent Christchurch 12-13 Nov 7.5 CPD hours when advising your clients on fi nancial matters. Wellington 14-15 Nov

STEPPING UP – Director: All lawyers wishing to practise on their own account whether Auckland 8-10 Nov FOUNDATION FOR Warwick Deuchrass alone, in partnership, in an incorporated practice or as a PRACTISING ON OWN barrister, will be required to complete this course. (Note: ACCOUNT 2018 From 1 October 2012 all lawyers applying to be barristers sole are required to complete Stepping Up.) Developed with the 18.5 CPD hours support of the New Zealand Law Foundation.

PROPERTY

LAND TRANSFER ACT – Thomas Gibbons This seminar provides a comprehensive introduction to the Dunedin 16 Oct NUTS AND BOLTS Robbie Muir new Land Transfer Act which is expected to come into force Christchurch 17 Oct in November 2018. The presenters will guide you through Wellington 18 Oct 3.5 CPD hours what has and has not changed, what you need to know, what you need to do, and where to get more information. Hamilton 24 Oct 2 CPD hours Auckland 25 Oct Webinar 18 Oct

SUBDIVISIONS Chair: Property subdivisions can entail a myriad of issues that need Wellington 13 Nov Thomas Gibbons to be worked through and can prove to be a risky, exciting Auckland 14 Nov 6.5 CPD hours and potentially proﬁ table venture for your clients. This intensive will take a practical approach in examining the key Live Webstream 13 Nov issues and developments in this area. Subdivisions sit at the interface of resource management and property law and this intensive brings these strands together. IN SHORT

CRIMINAL LAW – Alice Handcock Under the Sentencing Act 2002, it is possible for the court to Wellington 12 Sep DISCHARGE WITHOUT Mark Wilton acquit an o ender upon sentencing by imposing a discharge Live Webstream 12 Sep CONVICTION without conviction. This seminar will examine the test that must be satisﬁ ed and explain the current procedural approach 2 CPD hours to applications, including practical discussion about e ective applications and common di culties, and also consider the implications of key developments in the recent case law.

CAPACITY – KEY ADVICE Prof Kate Diesfeld Many lawyers face the dilemma of representing clients Auckland 27 Sep AND TOOLS Dr Mark Fisher with compromised capacity on diverse legal matters. Live Webstream 27 Sep Susan Martell Understanding whether clients have capacity is key. This 2 CPD hours seminar will provide insights by a psychogeriatrician and legal academic on when to query capacity, how to assess, when to refer for a medical assessment, and how to sensitively manage this issue in legal practice.

BUSINESS SALE AND Mason Lockhart The process of buying and selling a business can be a stressful Auckland 11 Oct PURCHASE Aaron Wallace time for all the parties concerned and a life changing event Live Webstream 11 Oct for your clients. This practically focussed seminar will provide 2 CPD hours legal and accounting perspectives which will help you to e ectively advise your clients on getting their businesses ready for sale and then on the sale process itself whether you are acting for the vendors or the purchasers. Please note: registrations open 5 September.

For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz LIFESTYLE September 2018 · LAWTALK 921

LIFESTYLE

1 2 3 4 5 6 7 8

9 10

11 12 A New 13 14 15 16 Zealand 17 18 19 20 Legal 21 22 23 24 Crossword 25 26 27

SET BY MĀYĀ 28 29

Across Down 1 Molly taking in marginal secret 1 Army unit ordered to accomodate service 17 for flourish(7) doctor (7) U N P O P U L A R J U D G E G E E O A U R A 5 See 22 2 5ly force to eat a number of L E G A L R I P O S T I N G 9 Bury 3's predecessor, having cut singers (5) Y B L D T N L off head (5) 3 Slinky peach outfit worn by priest S O B E R S P R I N K L E F A T C O C 10 Irregular regular irregular, about (6) A E R O S P A C E E X A C T 49 (9) 4 Criminal stratagem I brought to C D T T N U 11 Stagger when on this liquid (8) justice (10) E A S E D N U I S A N C E S A I C S H K 12 Criminal group describing a 5 Uniform's almost never worn D E M I R E P S A S C O T thing (6) upside down (4) R U N N A R B U N S H E A T H E U T I L E 14 Always a woman's right (4) 6 Raised at university right to have N I R H V L T A 16 Criminal led guard astray with noise detectors (8) K I C K S E J E C T M E N T Arthur Daley's wife (4,6) 7 Daniel let slip where the Rosetta 18 Pleas to consume food in Stone was found (4,5) Solution to August minutes (10) 8 Criminal dropping male for 10 has 2018 crossword 19 Bad painting makes one in three a certain je ne sais quoi (1,6) Across leave the river (4) 13 Recharges a battery for a Crown 1. Unpopular, 6. Judge, 9. Legal, 22/5 Two short guys with a short Institute (10) 10. Riposting, 11. Sober, 12. Sprinkle, horsey steer to 23/9 (6,7) 15 Crime of widower with act 16. Aerospace, 17. Exact, 20. Eased, 23 Appointed time for love - court causing injury - on a charge (9) 22. Nuisances, 24. Demireps, naked after Hippolyta's entrance 17 Encountered a 4, say - some 26. Ascot, 29. Unsheathe, 31. Utile, (4,4) are mixed, some extended, others 32. Kicks, 33. Ejectment 26 NB, almost 8 found inside our dead (8) Down fellow man (9) 18 5 mixed up day to add the 1. Ugly, 2. Pegboards, 3. Pellets, 27 Drugs and orgy at the home of poison (7) 4. Lord, 5. Rap, 6. Justice, 7. Drink, Jamie Oliver (5) 20 Naked kiss before morning is 8. Eagle, 13. Poetic, 14. Face, 28 Chaps' bottoms almost showing needed to practise law (3,4) 15. Catnip, 18. Anchorite, 19. Tusk, - malice aforethought? (4,3) 21 Relinquish something to assist 21. Darners, 23. Assault, 24. Drunk, 29 Criminal Fox losing tail, and - Paul (6) 25. Music, 27. Neve, 28. Beat, Ooh! Take that back! (7) 24 Bird found in UK river and lake (5) 30. The 25 Leading genius of art around end of century? (4)

94 LAWTALK 921 · September 2018 LIFESTYLE

LIFESTYLE

Scuba diving in Iceland

BY KRISTY RUSHER

Prelude in the Coral Sea As I stare at my reflection on the surface of the Coral Sea pretending I’m not scared of drowning, it occurs to me that I really shouldn’t let my brother talk me into joining his adventures so easily. A healthy dose of sibling rivalry pushed me into saying yes when he called to suggest we get our scuba licenses diving the Great Barrier Reef. I count the seconds until I take a giant stride into the water – not to co-ordinate with the dive master but to prevent the recollection of several bad kayaking trips where I’d left the water feeling lucky I hadn’t drowned. A splash, a deep breath through the regulator and then a glance at the Great Barrier Reef below and all my doubts vanish. The fear of drowning becomes a little less distracting each time I find myself dropping into the water. Gradually, I feel equal to the challenges of exploring sea life – I even imagine myself exploring the remote regions of the Arctic Ocean which feature regularly in dive gear catalogues. Iceland-bound A chance to travel to Iceland earlier this year meant I didn’t have to leave a dive trip in the Arctic to my imagination any longer. Iceland offers many unique diving experiences because it is a very active volcanic region with lots of different geology to explore under Lake Kleifarvatn is above the fissure zone of the the water. It is one of very few places divers can explore mid-Atlantic ridge and has a maximum depth of 97 volcanic fissures, touch both continental plates and see metres. The area surrounding the lake is a volcanic boiling spring water venting from chimneys rising from rock field formed from tephra emitted during volcanic the floor of the Arctic Ocean. eruptions. There is no soil – which means no grass, trees I visited Iceland in June. Despite the summer climate, or other plants; it is a truly lunar landscape. The only water temperatures of 2-4 degrees means that using a greenery to be seen on the road is moss and a very slow drysuit is essential. A drysuit is exactly what it sounds growing native lichen. like. You stay insulated from the extremely cold water by filling the suit with air that is kept warm by your body. A lake without fish The drysuit certification course takes one day, and I Unusually, the lake has no inlet or outlet – instead it is decided to complete the course in the capital Reykjavik fed from an underground freshwater aquifer. At a shallow to maximise the number of dive trips during my visit. The end of the lake you can see the spring water and gas certification is straightforward, with the morning spent bubbles emerging from the volcanic sand. Entering the in a swimming pool learning the basics of operating the lake, the bed drops away quickly. Following the curve of drysuit and getting used to wearing the heavy steel tank. the lake bed means that you get to a suitable depth for The afternoon was an open water trip to Lake Kleifarvatn certification exercises with barely any effort. Due to the on the Reykjanes Peninsula. It is a 30-minute drive from volcanic terrain there is no plant or fish life to distract Iceland’s international airport terminal at Keflavik. you, but the lack of visual reference points means that

95 you need to pay strict attention to your dive computer ▴ Underwater shot of the Silfra fissure. to adhere to the dive plan.  Shriram Rajagopalan b Even with the use of drysuits it was a challenge to keep my hands warm enough to operate the BCD is within an area formerly used for camping during the (buoyancy control device) after 40 minutes in the lake, parliamentary sittings and are immediately below ‘Law but a warm hot chocolate on the lake shore soon cured Rock’ a section of the cliff top where at the conclusion any numbness. of the Parliament, the laws of Iceland were read out I went back to the Reykjanes Peninsula the next day to everyone present. A judge also passed out penalties to drop into a deep volcanic fissure. You can taste the (including death penalties) for breaches of the law. salt spray from the heavy waves crashing on the adja- However, the area is also famous as it is where tec- cent shoreline as you get your gear on, but although an tonic plates of North America and Eurasia meet. They underground channel connects it to the North Atlantic are gradually drifting apart at a rate of 2cm per year Ocean it is also fed by a freshwater spring. – allowing glacial meltwater from the Langjökull glacier The fissure is formed from basalt stacks and it is a 3m 50km away to percolate through the lava rock to form wide tube that drops to about 20m. During the summer Thingvallavatn Lake where the Silfra fissure is located months its interior is lined with an algae so fragile that on the lake shore. it breaks off the rock faces simply by bubbles from the When diving Silfra, there is a stepped entry and exit regulator passing close by. The mixing zone between platform which means getting in and out of the fissure is the fresh and saltwater create ripples, but visibility is easy and you can focus on the interesting rock features still amazing provided you minimise fin movement and immediately. At the end of the short descent, you find avoid disturbing the algae. The experience of descending yourself facing both the continental plates. Although the into the narrow fissure is like dropping into a forested fissure is 63m deep, the dive itself is relatively shallow. fairy land. If a troll had popped out of the rock face to There is an opportunity to get up close to each of the wave to me I would not have been surprised. continental walls in the deeper sections of the fissure and it is possible to reach both plates within a single arm span The parliamentary connection for some parts of the dive. There are also several sections Silfra is the most famous dive location in Iceland’s showing evidence of recent earthquakes and continental Thingvellir National Park. Thingvellir became a national drift with boulders the size of garden sheds balancing park to recognise its significance as the site of Iceland’s precariously between each of the two plates. At some first Parliament which convened annually. The Silfra dive point the plates will pull apart and drop the boulders to

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unique because chimneys in other master has filled a thermos with the parts of the world are beyond depths hot water from the vent and made that can be reached by divers. hot chocolate on the way back to We depart in an inflatable boat, shore. fully suited and steel tanks fitted. However, today we have chosen The trip to the Arnarnesstrytan dive to have more bottom time to see as site takes less than 10 minutes, and much sea life as possible. Following en route we are looking for spouts the trip back to shore it doesn’t take and sprays from whales feeding in long to warm up from the dive trip the fjord. We descend on a line and as a geothermal spring nearby has the water is cloudy. The dive master been diverted into an outdoor swim- turns on a torch as we approach the ming pool overlooking the fjord. floor of the fjord and immediately the Over an Icelandic beer in the pool beam shows minute purple and blue we continue scanning the horizon flecks the size of dust particles – this for whales spouting. is what plankton looks like. I discover To enjoy the trips and feel con- that the limited visibility is because fident about the demanding dive I am swimming in the equivalent of environment in Iceland, the dive a whale’s vegetable soup. centres provide orientation dives Throughout the water jellyfish of and dry suit refresher dives. I rec- various shapes, colours and sizes ommend completing those before are dancing through the currents. attempting the chimney dive so I never saw two jellyfish the same that you are not distracted with shape or size. At 22 metres we reach managing your equipment. the bottom of the fjord and we are To dive the Silfra fissure, and greeted by Stephano, a wolf fish and Arnarnsstrytan chimney you must his girlfriend Stephanie. The dive hold an advanced dive certificate as master feeds them some shellfish, well as a drysuit certificate. For the the floor of the fissure – in the mean- then we tour the dive site. drysuit certification and Silfra trip time we are briefed to swim above At the dive briefing the dive I chose Dive.is: www.dive.is and for them rather than under them in case master told us that the chimneys the north Iceland dive trips I chose today is the day that they drop. The are created in a similar way to sta- Strytan Divecentre: www.strytan.is ▪ scale of the basalt formations on each lagmites in a limestone cave – each of the continental plates means that millilitre of water carries a small In her legal life Kristy Rusher passing between them is like diving amount of magnesium which is left  [email protected] is inside a stone cathedral. behind and the chimney grows frac- Chief Legal Officer, Corporate tion by fraction. The Arnarnsstrytan Services for the Dunedin City Chimneys older chimney is approximately 7m tall. Council. than dinosaurs It is hard to believe that this fragile The freshwater is so cold and so chimney vent began forming at the clear, that visibility is limitless – in time that dinosaurs were roaming fact it is as if you are not really the earth and has survived multiple We’d all love to diving through water at all. The earthquakes, eruptions and changes hear your story water is cold – so instead of hover- to the sea floor as it has grown. New Zealand’s lawyers are ing inside the heated van, I decide an adventurous lot and tell a to drive 30 minutes to Fontana spa Hot chocolate good tale. Some dive under in Laugarvatn where hot springs We reach the vent which is gush- the ice of Iceland like Kristy on the lake shore are diverted into ing hot fresh water. It is rapidly Rusher. Others battle the bun- a series of hot pools and a sauna. spiralling out of the chimney and kers of Scotland like Stephen In the northern part of Iceland are the vortex of hot freshwater mixing Brent (pages 100-103). We several fjords – and the Eyjafjördur with the ocean is mesmerising like welcome articles from lawyers is located immediately above the tip watching the flames of a fire. The who have done something of a series of fault lines beneath the interior of the vent is crystal white intriguing, been somewhere Greenland Sea. Hjalteyri is a small and looks very similar to the inside (exotic or otherwise), or who town on the shoreline and the dive of an oyster shell. Putting my hand have an interesting story centre there takes trips out to a over the vent I can only count to to tell. Send your story to range of spring water vents on the five before I can’t stand the heat [email protected]. floor of the fjord. This dive site is any longer. On other trips the dive

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LIFESTYLE Tesla Model S P100D

BY WILLIAM MCCARTNEY

handy dandy new car data to see You may well know a few things how small the numbers are for other already about Tesla vehicles: bat- fast cars. I made a list (doing the tery powered; semi-autonomous; hard work so you don’t have to). I rumours of a Ludicrous mode; made think the results bear publishing. by a company founded by a guy Note how many S and Rs there are. who founded a company that can simultaneously land multiple used Car 0-100 time Price in comparison to a P100D space rockets; made by a company founded by a guy with a bit of a Aston Martin Vanquish S Coupe 3.5 A lot more Twitter problem. Audi R8 V10 Plus 3.08 A lot more Given that the rocket company gives its products names like Falcon BMW M6 Coupe 4.2 A fair bit more Heavy, Dragon, and BFR, it’s a bit disappointing that the car company Ferrari 488 spider 3.0 A lot more comes up with names that are, at Way less than almost anything else on best, prosaic. The S. The X. The 3 this list. (one day). Ford Focus RS 4.72 Bonus points for having both an S and On the other hand, there’s some- an R in its name. thing to be said for names that contain information, and the S P100D Jaguar F-Type SVR Coupe AWD 3.7 A fair bit more contains a lot of information. “P” Lamborghini Aventador LP Ouch. About four P100Ds. is for performance. More perfor- 2.9 mance than you’ve ever seen. Zero 750-4 Superveloce Coupe Tied with the Maserati for best name. to 100km/h in 2.7 seconds. That’s a Same price. But dead slow in this lot of performance. “100” means a Lexus LC500 V8 5.0 company. 100kW battery. That’s a huge battery, folks. A beautiful battery. I was told Lotus Exige S 4.0 Bargain. About two Focus RSs it’s good for 613km per charge. That’s Maserati Granturismo MC A lot more. a suspiciously accurate figure, but 4.5 real-world driving suggests that it Stradale Another excellent name. can actually go that far. “D” is for McLaren 650 S 3.0 A lot more dual – two electric motors – one powering each axle – i.e. all wheel A lot more. Mercedes AMG E 63 S 4Matic+ 3.4 drive. And “S” because it’s always Worst name. cool to have an S in a car name. Or an R. Nissan GT-R Coupe 3.0 Less than a P100D. Zowsers. That 2.7 seconds won’t happen Porsche 911 Turbo S 2.9 A lot more by accident. You need to (a) engage Ludicrous (it does exist), (b) mash Subaru WRX STi 4.9 About one Focus RS the right-hand pedal, and (c) don’t flinch. 2.7 seconds is such a small Volkswagen Golf R 4.93 Bit more than the Subaru number that I found myself going Volvo S90 T8 AWD R-Design 4.7 Less than a P100D, but it’s no Nissan GT-R. through NZ Autocar magazine’s

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◂  Jakob Härter ba

now being increasingly strongly to go delving into menus, you will hinted at, until the brakes were find some unusual stuff: Easter Eggs, applied without my consent, and in technical parlance. Google it. I was informed in definite terms by an autopilot nanny that I was The off switch to hold the wheel at all times, and Despite the driving lesson, I won- that autopilot was now disabled for dered for some time whether I was the rest of my trip, so that I could turning the thing off properly. Too think about what I had done. embarrassed to call the driving I should acknowledge here that instructor, I Googled it. I was, said Tesla vendor had made me in fact, doing it properly. “Off ” promise, not 10 minutes earlier, involves (a) pushing the “park” not to drive without hands. But she button on the transmission, and hadn’t also told me that the steering then (b) doing nothing. Get out wheel would know if I didn’t. The and walk away. No off switch. No steering wheel knew. handbrake. Doesn’t matter what You get the idea. If you want a fast car, buy a Ford kind of slope you’re on: Teslas stay Focus RS. The safety bit where you put them. Driving a Tesla is different to driving other cars. People have died in Teslas which Step (a) is, however, optional. The Everyone else has been adding more and more com- were piloting themselves, so it park button is possibly only there puting power to their cars. Tesla has taken a computer can be reasonably assumed that to make you feel useful. You can and added wheels. autopilot isn’t foolproof, and it just get out and walk away. The car is carefully not described as an knows you’ve left, it engages park, The lesson autonomous system. But it’s the retracts the mirrors and door han- One is not allowed out of a Tesla dealership without a kind of technology that begs for dles, powers down the screen, and lesson in how the thing works. There are two ways a attention. Or inattention. If you locks itself. I’m not even convinced salesperson will hand over a new car to a member of the were inclined to have a coffee in that “park” is a real thing. When motoring press. Either a salesman (this doesn’t seem to one hand and a phone in the other you stop, all four wheels are held happen with saleswomen) will take you through Cars while crawling through stop-start stationary by their respective 101, which might include how the remote door locks traffic, you would find it excellent. electric motors, so quite what else work, how to adjust the seats and the mirrors, what the It’s pretty useful on a motorway. It there is for “park” to achieve I don’t transmission lever does, how to operate the automatic will even negotiate winding coun- know. lights, and so on. This is tedious. The non-tedious option try roads – going around corners, When you return with your is to hand over a key and wave in the general direction slowing where necessary, speeding coffee and sticky bun, provided the of the car, perhaps with a clue as to its colour, to help up again, staying clear of traffic key (coolest key on the market btw) in identification of the right vehicle. The rest is your ahead. And you don’t really have is about your person, the flush door problem. to keep your hands on the wheel handles extend again in a digitally at all times: the autopilot nanny welcoming way. Climb in, touch The drive can be kept happy by just giving the brake pedal, press the acceler- Turns out the P100D is an exception to the general rule. the wheel a reassuring squeeze ator (the term “throttle”, I fear, is Pointers as to operation are quite useful. But even after a every now and then. But it still facing extinction, given its quaint briefing, neither too comprehensive nor too concise, by falls short of a human’s ability mechanical origin) and away you a young female Tesla vendor, it was a slightly nervous to predict and react smoothly waft. correspondent who ventured out onto Auckland’s Great to what’s happening ahead, and But enough about the tech. North Road. consequently an autopilot journey What’s it like to drive? Very good. can be a bit braky. If you are looking at spending 200k The nanny in the car The window to the P100D’s soul (ish) on a car, and you don’t finish I made it to the Harbour Bridge before first offending is a huge central touch screen. So up with one of these, you’ve made the computer on wheels. I had managed to engage big that you don’t need to work a mistake. ▪ autopilot and was happily cruising within my lane your way through layer upon layer and the speed limit when I started receiving hints that of menus to find what you want, William McCartney  mccartney. something was amiss. Apparently still in information because it can display so much [email protected] is an Auckland overload mode, I was unable to understand what was information at once. If you do want barrister.

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LIFESTYLE The Open Championship courses: A bucket list trip

BY STEPHEN BRENT

I fell in golfing lust with the 1st tee at the Old Course in St Andrews the moment I laid eyes ▴ Irik on his knees... note position of ball after his on it back in 2010. Since taking up shot. the game at age 12, I’d always hoped that one day I would get the chance Troon, and Turnberry plus some smaller hidden gems. to play the Old Course and walk in Then followed a trip for six of us to Ireland in 2015, then the footsteps of all those amazing another back to Scotland in 2016 for eight of us. champions that had been there before me. All 10 in one hit? The 1st and 18th holes are wonder- On each trip we had played a couple of the courses that fully surrounded by the St Andrews hosted the British Open (or The Open Championship as township on one side and the ocean it is now known) but I wanted to put together a trip that on the other. There are normally a played all, or as many of, the 10 Open Championship few tourists wandering around courses in one hit. A bucket list trip for any golfer. watching people tee off, and there Planning for the 2018 “Open Rota” trip started while is a constant stream of golfers teeing flying back from the Scotland golf trip in 2016 as I knew off every 10 minutes from 6am till it would take two years to put together. 6pm in the summertime. It’s just With the help of St Andrews golf tour operators, such a special experience to be Connoisseur Golf, I managed to put together a trip that welcomed on to the 1st tee by the would take in 9 of the 10 Open Championship courses starter, told that the course is over plus a few other gems over a three-week period between 600 years old, that it’s the birthplace It’s just such the end of May and the middle of June. I then managed to of golf, and to proceed when ready. a special gather up the eight golfers needed, including fellow lawyer By this point most golfers are a nerv- experience to Richard Smith of Duncan Cotterill and the trip was on. ous wreck and are simply hoping be welcomed Here’s how the trip rolled … they don’t miss the ball. on to the 1st Sunday: We all met up in Edinburgh and headed to After experiencing the Old Course tee by the the airport to pick up the van. Unfortunately, there were for the first time, I knew that I had starter, told two problems at this point… one, the van wasn’t as big to bring my kiwi golfing buddies that the course as hoped and, two, the boys had failed to follow my back to experience it for themselves. is over 600 instructions to pack light. It was like a game of tetris I knew they’d love it so I started years old, trying to fit eight golf bags, eight suitcases, and eight organising tours, with the first tour that it’s the large blokes into the van but we managed it in the end in 2013 to St Andrews and Troon, on birthplace of and headed to St Andrews to get acclimatised. We arrived the Scottish west coast, for 10 of us. golf, and to about 4pm and walked straight on to the fairways of We played all the big courses – Old proceed when the Old Course. The Old Course is actually owned by the Course, Carnoustie, Kingsbarns, ready. local trust and on Sundays it turns into a public park

100 ▴ The guys before heading into the Haar at the Old Course. fenceline … it’s easy to see why with no golf allowed. Kids and dogs opening tee shot. We had an early it gets its names. Playing it just a are running all over the fairways, tee time and the haar (a cold sea few weeks before the actual Open kites are flown, Frisbees fly … it is fog) had rolled in so the first tee Championship meant that all the fascinating to see and everyone is shot disappeared into nothingness. grandstands were in place and felt so very respectful of the greens, tees Luckily, the haar disappeared rather very special indeed. Boys…broken… and bunkers. quickly and it was a glorious day but smiling. Yours truly … 76 off the Monday: A warm-up game at the for the group. Most tore it up, with stick to take the money … boom! Jubilee Course, which sits very near Richard Smith scooping the spoils Only eight balls lost, a very good the Old Course and was opened in with 47 stablefords. Everyone took day indeed. 1897. It sits right beside the New caddies and they make the expe- Thursday: Royal Troon. The place Course which was opened in 1895. rience at the Old Course so much where Phil Mickelson and Henrik That’s new in Scotland terms. A more special with their knowledge Stenson magnificently duelled it out combination of jetlag, nerves and and banter. My caddy asked me if in 2016. One of the perks of playing excitement contributed to a tough I knew that each hole had a name. Royal Troon is that you get to play day for the boys with 33 lost balls. I’d never heard of any names before the neighbouring Portland Course in The lads asked if the Jubilee would so bit and asked “well what’s this the morning before tackling the big be one of the harder courses we’d one called?” He replied “Number 12 course in the afternoon. Portland is play and I had to quietly tell them sir”! followed by rapturous laughter a great wee track and perfect warm that it was probably one of the from the group. Only three balls lost, up. Royal Troon itself is a fantas- easier ones. Jaws dropped, some so a much better day. tic links course and includes the stared into space, others started Wednesday: Carnoustie. famous “Postage Stamp” par 3, 8th mumbling to themselves incoher- Affectionately referred to by the hole. The shortest hole of the Open ently. Irik, who had just lost all the locals as “the Monster” or “Carnasty” Rota but probably the toughest, golf balls in his bag, headed straight and with a layout of 14 rather long with one of the bunkers nicknamed to the store to buy dozens more. par 4s, three hard par 3s (one of “the Coffin” … you can guess why. Tuesday: The Old Course, the which often requires driver off Twenty-six balls lost , a couple of spiritual home of golf, the widest the tee even for longer hitters) guys asking for their mothers at this first fairway, and the scariest and a treacherous par 5 along a point in the trip.

101 Friday: Trump Turnberry. ▴ Martin is 6'5"... he made it out in one! Purchased by Donald Trump a few years back, the course has been a par 3 that requires 200m of carry over gorse infested transformed into something incred- cabbage. Royal Portrush is Darren Clarke’s home club ible. It was one of my favourites and we did see him on the day but no time to take any before the trip and the new design selfies, unfortunately. Apparently he’s not known to be has made it even better. Simply too generous with his time but we sure had a blast at fantastic with amazing views and his course. Twenty-two balls lost. Guinness required. brilliant new hole layouts. Trump’s Tuesday: Royal County Down. A course not on the name is everywhere though – it’s a Open Rota but in my mind, one of the best courses on bit over the top but the course out- the planet and it’s Rory McIlroy’s home course. (I have to shines it all. After playing we headed admit I have a bit of a man-crush on Rory). Apparently to Cairnryan Port to catch the ferry it can’t host the Open due to a lack of infrastructure to Belfast. Twenty-three balls lost. (practice facilities, carparking, etc), which is a real shame Saturday & Sunday: Rest days because the layout is fantastic, the views magical and exploring Belfast including a visit the locals very friendly. It’s consistently ranked as the to the Titanic Museum, a Black No.1 course in the world outside of America (of course Cab History Tour of the Troubles, because the Americans would never allow a non-US and quite a few pints of Guinness… A total of course to be actual no.1) so is a must visit if you are ever mmmm delicious. We stayed at 215 balls just south of Belfast with your clubs. Twenty balls lost. the Europa Hotel, which we were lost by eight Straight after the round we head to Belfast Port for an told was the most bombed hotel players over 11 overnight ferry to Manchester, which is a whole other throughout the Troubles – 36 times in rounds (Notts story in itself and totally unpublishable. 20 years. Belfast nowadays is vibrant, & Portland Wednesday: Royal Liverpool. We arrive into Liverpool fun and feels quite safe. The Irish sure excluded), or Port at 6:30am and stupidly decide to try driving into the know how to have a good time. approximately middle of town to our hotel in rush-hour traffic. After Monday: Royal Portrush. Hosting three balls lost dropping our bags we head out to Royal Liverpool for lunch the Open in 2019 for the first time in per person in the magnificent clubhouse and then a 3pm tee off. The 68 years, so there is a real sense of per round. Not clubhouses at these big courses are just amazing, filled with excitement and anticipation about a bad effort photos, trophies and history. The course itself was very hard the place. The course has had a few actually, given with long, long rough and very narrow fairways but still a holes redesigned as requested by the toughness total pleasure to play the course where McIlroy won his first the R&A and it now has a brute of of the courses. Open in 2014. Small issue with leaving the course however,

102 ▴ The author at Royal County ▴ Irik, Richard Smith and Stephen Brent after the formal lunch at Down Muirfield only seven golf bags packed into the so five of us had a blast playing this then change back into golf gear and back of the van and the eighth was fantastic track and enjoying some head out for another round in the not discovered until Friday morning truly fabulous hospitality. afternoon. All very civilised. Our boys and in a completely different town. Sunday: Rest day. We headed had had enough golf by this point Twenty-eight balls lost. Warm, flat to Old Trafford to take in a charity so we opted to forgo the afternoon beer needed….ewwww! football match. 71,000 people at a round and take our time over lunch, Thursday: Rest day … the boys charity game – it was incredible. while reminiscing about a magical needed it. Most called their mothers. Monday: Royal Birkdale. Home of three weeks of golf. Only nine balls Friday: Royal Lytham & St Annes. the 2017 Open where Jordan Spieth lost. One of my favourites of the trip. It’s played the miracle shot from the Wednesday: The group disbanded hosted the Open 11 times and twice carpark to get himself back in con- and headed out its separate ways, hosted the Ryder Cup between tention on the 13th and then go on to with all feeling happy, sore, and Europe and the United States. Again win the Open with a barnstorming proud. the rough was up, the fairways very finish. The tee shot off the first is one A total of 215 balls lost by eight tight, and most bunkers deeper than of the hardest I’ve ever seen and I players over 11 rounds (Notts & 6 feet but I found the layout really fun think half of us were reloading off Portland excluded), or approxi- to play. Upon arrival we did, however, the tee after firing one out of bounds. mately three balls lost per person discover only seven sets of club in After that, the course actually got a per round. Not a bad effort actually, the van so Irik became the butt of little easier but was still a real test given the toughness of the courses. many jokes for the rest of the trip. of our golfing skills. Twenty-six I would highly recommend the UK The forgotten set of clubs meant an balls lost. The drive from Birkdale to any golfing enthusiast. The courses unexpected three-hour detour home to Edinburgh took four hours. are truly special and the hospitality via Royal Liverpool, where Irik’s clubs Tuesday: Muirfield. Our final is just fantastic. You are made to feel had sat outside for two days in the game. Playing Muirfield is quite the most welcome wherever you go. The carpark without being pinched. It said experience from the moment you people are so very friendly and the more about his old set of clubs than arrive at the gate. You are welcomed, 1st tee at the Old Course is a place the area itself. Sixteen balls lost. shown around, and generally made where every golfer should visit … just Saturday: Notts Golf Club, to feel very special. Visitors are only hit it straight … FORE right!! ▪ Hollinwell. Not on the Open Rota allowed at Muirfield on Tuesdays but a course used as a qualifying and Thursdays, with the format Stephen Brent  Stephen.brent@ venue for entry into the Open. A being singles in the morning, then cavell.co.nz is a partner in Cavell friend of mine, Colin, is a member change into jacket and tie, three- Leitch’s Queenstown office. there and had offered to host us course lunch and a couple of wines Needless to say, he plays a bit of with some of his golfing buddies. in the stately clubhouse (“strictly no golf, alongside his business and Three of our eight decided to rest photos allowed inside, please sir”), commercial property practice.

103 LIFESTYLE

LIFESTYLE Denver – a work in progress

BY JOHN BISHOP

Denver, the capital and main city of the mountain state of Colorado, is a large and growing city stuck in the middle of nowhere with a fierce local pride and seemingly much to be proud about. It’s also a city in transition and is grappling with the problems that come with growth and urban spread. Denver City alone had a population of 704,621 in 2017, making it the 19th most populous city in the United States; it had grown by 17% since 2010. The population of the greater Denver metropolitan area is now estimated at 2.88 million. That bible of upmarket travel, Condé Nast Traveller, ▴ Denver's symbol is a big blue has just labelled Denver as one of its most underrated bear. This one is outside the American cities, and says, “Like Austin, Denver is fast Colorado Convention Center. becoming SF 2.0. The downside of all those programmers and coders moving in? Skyrocketing real estate.” 2004, Obama in 2008 and 2012, It adds: “The upside? An influx of cash for restau- and Hillary Clinton in 2016. Of the rants, bars, and shops. The population here is varied state’s seven representatives in enough to support niche interests,” and it goes on Congress, four are Republican and to list some. three Democrat. The two senators “You could eat and drink yourself silly in this town, are one each way. but many locals are as fit as thanks to Denver’s proximity The Constitution Party, previously to the great outdoors.” Biking and hiking are common. known as the US Taxpayers’ Party, An adventure in the Rockies is only 23km away. but not to be confused with the Tea It sounds like hype, but it’s mostly true. The place Party with whom it shares similar is one of the fastest-growing cities in the US. It is the ideas, is a force here, with its blend scene of some exciting food action; the drinks scene now of originalist interpretations of the adds local wine to local spirits and there’s a thriving The place Constitution, the principles of the craft beer industry – which almost every US city now is one of Declaration of Independence, the claims to have. the fastest- Bill of Rights, and the Bible. However, I still found it too spread out to be easy to growing It has previously won representa- get around (particularly without a car) and lacking a cities in the tion in the state assembly. This is real “heart of the city’. It is a city in transition, and like US. It is the still a mountain state unpersuaded building a house, you can see and sense the potential scene of some that the federal government is nec- joy, but it’s not delivered yet. exciting food essarily anyone’s friend. One sign of the transition is the changing political action; the complexion. drinks scene Getting high – both ways Politically, Colorado is a battleground state. It voted now adds Denver likes the ambiguity of its Republican in every Presidential election from 1964 until local wine to status as Mile High City. Yes, it is it went for Barack Obama in 2008. (Bill Clinton won the local spirits exactly 5,280 feet above sea level, state, but not a majority of the votes in 1992 because and there’s a which is exactly a mile, and yes, there was a third party involved.) thriving craft marijuana is legally grown and The state voted for George W Bush in 2000 and beer industry smoked there, so there is substance

104 LAWTALK 921 · September 2018

▸ Inside the beaux arts Denver railway station is a host of shops, bars and cafes. to the moniker. About 1300 years ago, native Utes tribes migrated to the Denver. Later, as Americans explored further west, beaver and buffalo drew hunters. In 1821 the Santa Fe trail opened the area to those migrating west. The Mexican-American War of 1845/46 added a lot of territory in the South West and mountain states to the US, and in the Gold Rush of 1858 Denver was born. In 1881, the railroad arrived. That and the discovery of silver generated more arrivals while the Dust Bowl of the 1930s emptied the state again. The town had its own successes. In 1912 Oliver Fritchle designed and built an electric car in Denver. He made 500 vehicles between 1912 and 1920. Its top speed was 25mph. The battery weighed between 180 ▸ An electric car built by Oliver and 270kg. In 1920 it cost $2,500. Fritchle in Denver in 1912 A Model T Ford was just $700. The Fritchle family donated a 1914 Coupe outside a large bar, or for the trucks to the Denver Museum and it was to roam from bar to bar during an driven there under its own power afternoon or evening. in 1990. Josh Niernberg is one of a new Denver makes much of its local- generation of chefs in Denver who ly-produced spirits and the wine produced one of the nicest beef which is made from grapes grown in dishes I have tasted. It was apple, the country, matured and bottled in fennel and kombu braised wagyu the city and sold in cans for hikers, short rib, served with preserved who don’t want glass. The wine is apricot butter, puffed barley and a struggle to like, but the whiskey micro mustard. It simply melted is impressive. in the mouth, and the combination What was interesting was the of flavours was delicate and sweet. absence of rules around host Likewise Jen Jasinki, a pioneer responsibility. Unlike New Zealand whose success has inspired several there is no requirement on owners restaurants. The taste of her poached storage areas. Denver has begun of licensed premises to provide food egg with salmon on a potato galette the process but has a long way to of any kind, or to have non-alcoholic lingered on the palette. Both have go to make it attractive. drinks available. won national cuisine awards. The River North area in Denver, At one brewery I visited on a tour, now rebranded as RiNo, was derelict the only food available was popcorn. Up in RiNo and industrial space, much of it ware- And that seemed to be for the kids down in LoDo houses associated with the nearby who were there with their parents Much is also made locally of the railyards. imbibing on a warm afternoon. revival of the industrial and ware- Residents in the lower downtown The answer is food trucks. This house area adjacent to the central area – now rebranded as LoDo – lowers the overheads for the bar city. were also moving north into the owner, I was told, and gives the cus- Many cities have gone through warehouse district of RiNo which tomers more variety. It’s not unusual this process with their waterfronts, was pushing up rents for the artists, to see two or three different trucks railyards, or manufacturing and students and itinerants who lived

105 ▴ A morning tot of locally produced rye whiskey, smooth ▴ Plenty of beers but no food at the and warming Tivoli Union Brewery there. greengrocer, salumeria, rotisserie, bakery, Brady Welsh, a commercial real estate agent active in the RiNo creamery, chocolatier and coffee bar and area, told me about the problems and challenges. a full bar. Our group spent a happy couple He and other locals refer proudly to a building called The Source, of hours here. one of the first makeovers of a warehouse now housing a bank, Mr Welsh said rental space was now a brewery, two restaurants, and specialist shops. Interesting, but $125 to $150 per square foot where $25 per worth only a short stop. square foot used to be the norm. Denver Central market, a bustling, thronging place for eating, The lack of green space has also been drinking and recreating, was larger and better. criticised. Look out of the window of the The food was well worth going for: a very good butcher (spe- office and apartment blocks and yes, the cialising in Italian cuts), a great pizza place, coffee, ice cream and Rockies are visible, but there’s little green gelato to die for (blueberry and basil anyone?), and a fishmonger, between you and them.

Notable Quotes ❝ If you weren’t given that permission to have that conversation with Michael Cohen you may have to … answer to an ethics committee.❞ ❝ Please feel free to gloat some more. Normally it is bad — Legal academic Alan Dershowitz tells attorney Michael karma to gloat, but there are exceptions. This is an Avenatti on a CNN TV show that he may have violated exception. It is good karma to gloat over this glorious legal ethics by approaching former Trump attorney Michael story.❞ Cohen in a New York restaurant. — One Auckland lawyer is pleased at the news that ADLS Incorporated members voted to retain ownership of their ❝ Alan, you really need to start talking only about things that Chancery Chambers building. you know as opposed to things you have no knowledge about.❞ ❝ He asked me a question which I couldn’t answer and he — Michael Avenatti’s response. stated ‘oh well, you’re on your way to becoming one of my statistics’ and he’s notorious for failing half his class. ❝ It is fragile. It is not well-known. It is like a cats-cradle. It My dad said ‘don’t get mad, get even’ and that’s what I is easy to move a strand here and not realise the damage applied for the rest of my legal studies.❞ done there. It requires constant vigilance by everyone. — After her admission as a barrister and solicitor Samantha If it is the preserve of only lawyers and judges, it is Hunt speaks to the Taranaki Daily News about how a vulnerable.❞ hectoring law lecturer motivated her. — Chief Justice Sian Elias speaks on New Zealand’s constitution.

106 “Beautification will come when the ▴ Whiskey tasting concrete trucks pull out,” Brady Welsh assured me. “The RiNo transport station Lyft). will have after-school programmes. The Taxis can be flagged down, but Uber is a main avenue will be tree lined.” much more reliable experience. Seemingly Right now, it has the feeling of a new and everyone has an Uber account, and with raw suburb about it, plenty of promise and fares usually under $10 to get about the plenty of promises, but it’s not a completed city, no one seems to sweat the cost. project right now. Right now, There are buses and trains and, back in Cellular service in RiNo is also “a real it has the the city, one positive is the 16th Avenue pain”, Brady admits, because there aren’t feeling of Mall which is car free and has a free bus enough towers. a new and operating continuously from Union Station Part of the problem is the desire to raw suburb (Interstate and light rail to the airport) into spread rather than to go up. One to three about it, town. storey apartment buildings and shopping/ plenty of The mall is tree-lined and filled with living complexes are common, but the promise and shops and shoppers. Denver is starting to distances are large, and in the absence plenty of get the idea of what an inner city experi- of public transport (hardly visible at all promises, ence should be, but there is plenty of room outside the inner city), it’s back to cars but it’s not for getting better. ▪ and bicycles. a completed The answer for the 20 and 30-year-olds project John Bishop  [email protected] buying into the apartments is Uber (and right now. is a travel writer and business mentor.

❝ In one club, I met Jay Leno and gave him a bunch of jokes. ❝ At times, proceedings can become emotionally charged He said: ‘You think like a lawyer. Too wordy.’ But he hired and volatile. It is vitally important for the open and me, $50 a joke, for The Tonight Show.❞ transparent administration of justice that court hearings — Former M & A Wall Street lawyer Paul Mecurio, who is now are open to the public as much as is feasible and the law is now a successful US stand-up comedian. allows.❞ — Chief District Court Judge Jan-Marie Doogue comments ❝ I didn’t know the politics of most of the people I appointed, on courtroom violence. and nor did I care. What mattered was if they would make good judges. If you start to inject politics in there you ❝ By the time I thought ‘This is going on a bit long’ there are in the slippery slope to what is going in the United were too many people under the table for me to join them States.❞ but it stopped shortly after that.❞ — Former Attorney-General Christopher Finlayson QC outlines — Justice Minister Andrew Little encounters a devastating his approach over nine years of appointing members of magnitude 6.9 earthquake while in Lombok for an anti- the judiciary. terrorism meeting.

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