Collaborative, Indispensable Legal Service Solicitor-General Una Jagose QC on Her Vision for the Stewardship of Crown Legal Service

ISSUE 912 · November 2017

Collaborative, Indispensable Legal Service Solicitor-General Una Jagose QC on her vision for the stewardship of Crown legal service

Page 37

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People in the law 24 · New UK reporting obligations 7 · Human rights lawyer and how they may affect New vows to defend the Zealand ▹ BY HENRY BRANDTS- defenceless ▹ BY CRAIG STEPHEN GIESEN AND NICK BERESFORD 12 · The voices of 26 · More on the new Land Transfer history ▹ BY KATE GEENTY Act ▹ BY THOMAS GIBBONS 28 · Commerce Commission 14 · NZLS at a glance poised to ramp up enforcement of Fair Trading Update Act 1986 ‘unfair contract terms’ 18 · Broadcasting to the nation: provisions ▹ BY ALISAUNDRE VAN the public’s interest in Gareth AMMERS AND MADISON EDILSON 6846 Morgan and TOP? ▹ BY SALLY 30 · Good Faith in MCKECHNIE AND CHARLOTTE DOYLE franchising ▹ BY DEIRDRE WATSON 20 · Five month opt-in granted 32 · If it looks like a will, there’s a for leaky-building class way ▹ BY MCKENZIE ROGERS action ▹ BY STUART DALZELL 21 · Balancing contractual Mediation intention and legislative 33 · Changing the way we rights: The case of the argue. Part 2, Why go to peripatetic pilots ▹ BY REBECCA war? ▹ BY PAUL SILLS SCOTT AND INES SHENNAN 22 · Do we have a consistent In-house approach? Sexual experience 34 · The GPs of the Legal and reputation evidence World ▹ BY SIAN WINGATE in civil sexual harassment 37 · Collaborative, Indispensable 56v88 claims ▹ BY MARIA DEW Legal Service ▹ BY KATHERINE AND CHRISTINA LAING LANCASTER

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4 Contents

Pro-bono Practice Courts 40 · Global links aid firm’s local 53 · The first 90 days in that coveted 64 · ‘Distributed Courts’: work ▹ BY CRAIG STEPHEN new job: How to hit the ground AVL in New Zealand’s running ▹ BY EMMA POTTS Courts ▹ BY JANE ADAMS AML/CFT 41 · Get ready for the Pathways in the law Legal Information change ▹ BY DAMON HERBERT 54 · Practising sports law 65 · Profound insights into 44 · The first step of AML/CFT in the professional early New Zealand compliance ▹ BY NEIL JEANS era ▹ BY NICK BUTCHER law ▹ REVIEWED BY JEREMY FINN

Technology Focus on Classifieds 46 · Five things lawyers believe that 56 · Focus On Rotorua ▹ BY KATE 67 · Will notices are bullshit ▹ BY CLAUDIA KING GEENTY 68 · Legal Jobs 48 · Fixing Corporate 71 · NZLS CLE Ltd CPD Calendar IT ▹ BY DAMIAN FUNNELL The New Lawyer 49 · Tackling policy challenges of the 58 · Confessions of a recovering Lifestyle information age ▹ LYNDA HAGEN goal addict ▹ BY KATIE COWAN 74 · Panama and other hats and a 50 · Is your email service plug for a city that deserves appropriate for your 60 · Lawyers Complaints one ▹ BY RICHARD FLETCHER practice? ▹ BY DAMIAN FUNNELL Service 76 · Lawyers do surf ▹ BY NICK BUTCHER Innovation Practising Well 78 · Georgia Snapshot ▹ BY DAVID 52 · Larissa Vaughan: Head of Legal 62 · The life-savers that should be in JOSLAND Wealth and Digital Legal Lead, every workplace ▹ BY ANGHARAD Kiwibank and Kiwi Wealth O’FLYNN 82 · Tail-end

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5 PROFILE · PEOPLE IN THE LAW November 2017 · LAWTALK 912

6 LAWTALK 912 · November 2017 PEOPLE IN THE LAW · PROFILE

PEOPLE IN THE LAW PROFILE

Human rights lawyer vows to defend the defenceless

BY CRAIG STEPHEN

Being uprooted from her home country as a child to escape a repressive regime has shaped human rights lawyer and new MP Golriz Ghahraman’s career and outlook.

the streets, and wearing what you Earlier this year she criticised Ms Ghahraman left Iran in 1990 when she was want. And it was very green.” then Prime Minister Bill English for nine, and her family were soon granted political asylum The Auckland-based barrister sole saying, in defending comments he in New Zealand. will now focus on life in the Beehive made in 2005 on asylum seekers “I lived through the most repressive decade, the 1980s, after being elected a Green MP in the from the Middle East, “You don’t that immediate post-revolutionary decade when there September election, the first refugee need terrorists here and if one turns was a real shutdown of political and civil rights, and to enter Parliament. up at the border with a reference women were targeted through Islamic dress and all of She says that she will put her from Saddam Hussein or other ter- that, but also political dissidents, or anyone who was hand up to work on issues such as rorist credentials then they won’t perceived as a political dissident, were targeted and justice, human rights, and consti- be allowed in.” even religious and ethnic minorities. tutional matters. “I think it would have been “It was on such a mass scale that there were few unthinkable when we came to have people in Iran at the time who didn’t know someone Populist rhetoric politicians talk about migrants or who had disappeared or were thrown into prison. You But, while Ms Ghahraman says her refugees in that way,” she says. couldn’t talk on the phone, it was very palpable; it wasn’t family received a warm welcome “I just don’t remember this kind something you could escape, even as a child.” from New Zealanders on arrival, of political football being played Ms Ghahraman says her mother was politically active that kind of reception is not offered with people who are escaping war and disagreed with the regime. to asylum seekers now. or other trauma.” Memories of 1980s-era Iran inspired her to take up law She says things began to change and work on human rights issues after being admitted here after the terror attack on New as a barrister and solicitor in Auckland in 2005. You can’t ignore York in 2001. “You can’t ignore that these things are happening that these things are “That post-9/11 change when [human rights abuses] when you’ve seen oppression happening [human politicians began to talk of national at first hand so there was a kind of urgency for me to rights abuses] security and race in terms of immi- go and give that back.” when you’ve seen gration as a political game was new The 36-year-old says that while the pre-revolutionary oppression at first and it was especially heart-breaking regime in Iran was very secular, it was still politically hand so there was a to see such a statement from Bill repressive. By coming to New Zealand her parents hoped kind of urgency for English and it was so inaccurate to find a safe, open and democratic society to raise their me to go and give as well, it wasn’t even as if he was daughter. “It was suddenly very free walking around that back raising legitimate fears, he was

7 suggesting Iraqis were all friends of “I did that and then went to human rights standards and advocacy skills has been Saddam Hussein and that refugees Oxford to specialise in human put on hold. were terrorists. It was really that rights law and that led to work- Ms Ghahraman also worked on a family care case in kind of populist rhetoric that we are ing in the International Criminal Auckland involving family members seeking payment hearing come out of Britain and the Tribunals where you’re holding to to help care for looking after a profoundly disabled United States now.” account presidents and generals relative full-time. The case has gone to both the Court for mass human rights violations of Appeal and the High Court and is now being taken Torture and abuse and international crimes. So, over by another lawyer. Entering the legal profession Ms much of that was torture and the Ghahraman wasn’t willing to shirk jurisprudence of those tribunals Rwanda from tough tasks and working on was really interesting because you She has also been acting for two Rwandans living in cases of torture and human rights are making law. New Zealand who are being sought for extradition. The violations. “In the Rwanda tribunal it was allegations relate to the brutal tribal war in 1994. “I ended up going into criminal exciting to see, for example, gen- “Things are very different in Rwanda now, it’s a very law because to me that is the most der-based violence for the first repressive military dictatorship, so genocide accusations purely and the most frontline time in the context of war and especially against political dissidents are very common human rights area of law you can mass atrocity being recognised as and that is happening around the world, and that may work in practice in in New Zealand; free-standing crimes. So, rape as well be what is happening here.” every day you are applying the Bill an act of genocide was recognised Ms Ghahraman has a Masters Degree in International of Rights Act and you’re dealing for the first time and historically, Human Rights Law with Distinction from the University with unlawful detention, searches all of that always happens in the of Oxford. and discrimination. context of war and genocide, it had She has worked as a prosecutor and defence lawyer never really had been treated as a at United Nations tribunals for Rwanda, the former key crime. Yugoslavia, and the Khmer Rouge tribunal in Cambodia, “But, because they were UN mis- on trials of former heads of state accused of committing sions, you had to do a lot of outreach international crimes and human rights violations. I ended up going into and non-legal work as well, so you She has built up expertise in legal challenges based criminal law because had to go into the community and on the Bill of Rights and Human Rights Acts. In 2015 to me that is the explain what we were doing, and she successfully challenged police conduct before the most purely and the that ended up bringing home, I Supreme Court in Wilson v R [2015] NZSC 189. most frontline human think, a little bit the place of justice Ms Ghahraman has also worked as a consultant for rights area of law you in terms of overcoming crime, and the United Nations Office of Drugs and Crime, designing can work in practice especially mass crime.” and delivering training for lawyers on trial advocacy in in New Zealand; She was until recently a UN con- skills, human rights, and ethics. every day you are sultant and has completed a code Ms Ghahraman was ranked eighth on the Green Party applying the Bill of of conduct for Nigeria’s prosecution list for the 23 September election, and was the last of Rights Act and you’re services. An intention of going to the party’s candidates to secure election to Parliament, dealing with unlawful the West African country to teach doing so after the special votes were counted. ▪

8 LAWTALK 912 · November 2017 PEOPLE IN THE LAW · ON THE MOVE

PEOPLE IN THE LAW ON THE MOVE

Long-serving Judge retires Lane Neave appoints Marine Spatial Plan for its excellence in new partner executing a collaborative process and District Court Judge Patrick Robert Grace producing an innovative plan to protect has his final sitting in Wellington on 3 Evelyn Jones has been a nationally significant taonga. November, after almost 22 years on the promoted to partner at • RMLA Project Award 2017: Waikato bench. Judge Grace was admitted as a Lane Neave’s Auckland Regional Council for its forward-looking barrister and solicitor in 1971 and built a office. Evelyn is a special- approach to resolving freshwater quality practice in common, family and criminal ist banking and financial and allocation issues. law. He was sworn in as a District Court services lawyer with • Principal Judge RJ Bollard Lifetime Judge in Lower Hutt in December 1995. over ten years’ expe- Commemorative Award: The Hon rience in all aspects of Peter Salmon CNZM QC, one of RMLA’s Williams McKenzie banking and financial services law. She founders and its inaugural President for promotions and hires has previously worked at firms in both dedicating a lifetime of leadership to the New Zealand and London and has also resource management sector. Williams McKenzie Lawyers of Rangiora worked in-house at both a major bank have welcomed Sonya de Vries into and a leading consumer finance product Juno Legal welcomes partnership. Sonya graduated with LLB company in New Zealand. Sally Parker (Hons) from the University of Canterbury in 2007 and was admitted in September New Linwood Law partner Sally Parker has joined 2007. She has been at Williams McKenzie Wellington firm Juno for eight years and practises in all areas of After joining Linwood Legal. Sally graduated in general law including property, rural and Law in 2016, Paulette 1999 and worked in com- business transactions, employment, family, Cavanagh (nee Petelo) mercial and technology and asset planning. The firm has also been has been welcomed teams at national law joined by solicitors Hannah Reuben (pre- into the firm’s part- firms, at a telecommunica- viously in Blenheim) into their Family Law nership (incorporating tions provider in London, team and Catrina Hunter (previously in Richardson & Co) as and as NZ Legal Counsel and Company Christchurch) into their Property Law team. of 1 October 2017. After Secretary at Nokia New Zealand. She has graduating from Canterbury University, also advised on complex and high value Kim Beange joins Gibbs Paulette practised law for several years in technology projects among a broad range of Mills Livingstone Hawera and Ashburton. Her main area of legal, commercial and governance matters. practice is commercial and property law, Kim Beange has joined and she is also able to assist in the field of Sarah Taylor joins Gibbs Mills Livingstone trust and estate law. Lexvoco as a solicitor. Kim graduated from AUT University RMLA presents Sarah Taylor has joined and was admitted in 25th anniversary Lexvoco, taking up the August 2017. She will annual awards position of Business work closely with Carol Development Manager. Livingstone, practising The 25th annual Resource Management Sarah has worked as in the areas of conveyancing, estates, trusts Law Association (RMLA) awards were a lawyer since 1998 and commercial law. presented on the closing night of the RMLA working in New Zealand, annual conference. The awards were: England and Singapore. Megan Gundesen • RMLA Publication Award 2017: Beca, She is combining this role with her cur- establishes boutique firm Southern Skies and Auckland Council rent position as Principal Legal Advisor at won the award for articulating the best Tasman District Council. Megan Gundesen has set up a boutique current knowledge and practice in ero- New Plymouth employment law and HR sion and sediment control. Clifton Chambers merger specialists firm, FairPlay Legal Ltd. Megan • RMLA Outstanding Person Award was admitted as a barrister and solicitor 2017: Adam Wild, for making an out- Clifton Chambers and Thomas More in December 1984 and has over 30 years’ standing contribution to the field of Chambers in Wellington have joined experience in employment law. She has heritage and conservation architecture, forces. The merged chambers, which will previously worked as a senior associate both in New Zealand and internationally. be called Clifton Chambers, now comprises with RMY Legal and as a partner at Govett • RMLA Documentation Award 2017: Sea 10 barristers with specialist skills in diverse Quilliam. Change Tai Timu Tai Pari Hauraki Gulf areas of law and in mediation.

9 ON THE MOVE · PEOPLE IN THE LAW November 2017 · LAWTALK 912

PEOPLE IN THE LAW September. The New Zealand National Law ON THE MOVE Firm of the Year winner was Chapman Tripp. Sarah Armstrong of Russell McVeagh term. Valerie was admitted in 1994 after was winner of the New Zealand Disputes Solomons promotes graduating LLB(Hons) from the University Star of the Year. Rob Pile of Waikato. She worked in private practice for 15 years as a commercial property/com- Wynn Williams Dunedin firm Solomons has promoted Rob mercial lawyer and joined the Ministry of promotes staff Pile to senior solicitor. Admitted in December Education in March 2012. 2013, Rob joined Solomons in June 2017 as Wynn Williams has a member of the property and commercial Khushbu Sundarji joins announced the promo- team. Before joining the firm, Rob practised Stewart Germann tion of four staff. property and commercial law in Christchurch Shane Campbell and with another Dunedin law firm. His Khushbu Sundarji has been promoted to practice areas include purchasing and selling has been appointed a associate in the Dispute commercial, rural and residential property, solicitor at Auckland Resolution team. After wills and trusts, commercial leasing and firm Stewart Germann graduating LLB(Hons) subdivisions and boundary adjustments. Law Office. Khushbu from the University of Shane Campbell was admitted as a bar- Canterbury, Shane was Valerie Bland sets rister and solicitor in admitted in August 2014. up Extra Law Ltd September 2010 and has Before joining the firm worked for law firms in Melbourne and he worked as a Judge’s Valerie Bland has Auckland. She has considerable experience Clerk for the High Court. incorporated Extra Law in the areas of property, commercial law, Josh Taylor has been Ltd as an Alternative and the sale and purchase of businesses. promoted to associate in Legal Services Provider the Dispute Resolution (ALSP) in Wellington. Two NZ awards in team. Josh graduated Josh Taylor Extra Law offers legal AsiaLaw Dispute from the University of services to predom- Resolution Canterbury and was inately government admitted in 2014 before organisations by providing an extra law Two New Zealand awards were presented working for another team member to sit with in-house teams at the 2017 AsiaLaw Asia-Pacific Dispute Christchurch firm for and cover a personnel shortage for a fixed Resolution Awards in Hong Kong on 28 three years in litigation and dispute resolution. Katrina Wood has ADVERTISEMENT been promoted to solic- Katrina Wood Do you work with young people itor in the Commercial Property and Projects who have broken the law? team. Katrina was admitted in July 2017. I’d like to hear from you if a young Your views as a lawyer or youth Alyssa Langford has person you have worked with has advocate are important to me. joined the firm as a been supported by a communication You would take part in a one hour solicitor in the Resource assistant/speech language therapist. interview. Interviews will be audio-re- Management and Envi- I am a clinical psychology doctoral corded and take place at a time and ronmental Law team. Alyssa Langford student and am conducting evaluative accessible location of your choosing. Alyssa was admitted in July 2016. research into the new and evolving I am based in Auckland, but can travel role of the communication assistant to your location. Promotions at (usually a speech language thera- In appreciation of your time, you will Treadwell Gordon pist) in the criminal justice system. receive a $20 petrol voucher. Communication assistants are being If you are interested in participating Lisa Douglas has been appointed in increasing numbers to or would like more information, please appointed to the part- support the oral language needs of contact me via e-mail, Kelly Scott: nership at Treadwell young people who offend.  [email protected] Gordon, heading the I would like to hear your views – the Approved by the University of newly-formed litiga- good, the bad – the impact it had on Auckland Human Participants Ethics tion team. Admitted in the young person, your role, and the Committee on 4 September 2017 for December 1988, she has process. three years. Reference Number 019002. 21 years’ experience from working for various Auckland and London

10 LAWTALK 912 · November 2017 PEOPLE IN THE LAW · ON THE MOVE

firms, mostly in civil litigation, construc- sponsored by the South Auckland law is an ASX listed holding company for tion litigation, insolvency-based litigation, firm, aims to support an annual visit by a number of intellectual property and and alternative dispute an internationally recognised academic associated companies offering services resolution processes. working in the areas of criminal law and and products throughout the Asia-Pacific Andrew Thomas has criminal justice. Professor McSherry is region. Information released by the par- been appointed associ- the foundation director of the Melbourne ties says AJ Park is the first New Zealand ate. Andrew was admit- Social Equity Institute and Adjunct patent attorney firm to be acquired as ted in 2007. He joined the Professor of Law at the Melbourne Law a result of legislation which took effect firm in August 2017 and School, University of Melbourne and from February 2017, which removed is based in the Taihape the Faculty of Law, Monash University. restrictions on ownership structures for office. His last five years were spent in She has published widely in the fields of patent attorney firms. The total purchase London and Auckland. Andrew specialises mental health law and criminal law. consideration for AJ Park is NZ$66.1 mil- in land law and has a wide breadth of lion adjusted for net debt and working experience in commercial law and resource Lawyers join capital adjustments. management matters. Davenports Harbour Scott Oliver has been Russell McVeagh appoints appointed associate. He Linley Hawkes has Special Counsel was admitted in 2006 joined Davenports Har- after graduating from bour as an associate in Liz Blythe has joined Victoria University. the property team. Linley Russell McVeagh as Before joining Treadwell specialises in commer- special counsel. Before Gordon he spent 11 years cial property advising on joining Russell McVeagh, in litigation practice in Marton. His areas the sale and purchase of Liz was a senior associ- of expertise include family and criminal property, negotiating and ate at Milbank, Tweed, related litigation and he is a member of the preparing agreements, undertaking due Hadley & McCloy based rural committee of the NZLS Whanganui diligence investigations and advising on in London, during which branch. all aspects of commercial leases for both time she attended Harvard Law School’s landlord and tenant clients. executive education programme. She was Rutherford Fellowship Anna Guise has joined an associate based in Ashurst LLP’s London for law professor the firm as a solicitor in office previously. She specialises in a broad the commercial team. range of commercial and technology University of Auckland After graduating LLB, transactions. Law School associate pro- BA from the University fessor Claire Charters of Otago, Anna was DAC Beachcroft NZ joins has been awarded a 2017 admitted in February Wotton + Kearney Rutherford Discovery 2017. She has assisted on Fellowship to investigate a wide range of commercial transactions UK law firm DAC Beachcroft has transfered the ways indigenous and regularly advises on various commer- its New Zealand operation to its global alli- peoples’ rights are con- cial, corporate secretarial and compliance ance Australian law firm partner Wotton stitutionally recognised throughout the matters. + Kearney. Six new partners and 11 other world. She will evaluate various existing insurance lawyers in offices in Auckland and proposed methods of constitutionally AJ Park joins IPH group and Wellington have joined Wotton + recognising and accommodating indige- Kearney. DAC Beachcroft partner Antony nous peoples’ rights around the globe, with New Zealand intellectual property firm Holden continues to lead the New Zealand the aim of informing potential reform in AJ Park has joined the IPH Ltd group practice as managing partner, NZ with a New Zealand. Her research will draw on of companies from 1 November. IPH team of 17 insurance lawyers. ▪ case studies from Bolivia, Mexico, Canada, Australia, the Pacific Islands, Norway, Fin- land and Sweden. AUT Kayes Fletcher Walker visiting scholar award

Australian criminal law academic Bernadette McSherry has been awarded the inaugural Kayes Fletcher Walker visiting scholar award in conjunction with AUT Law School. The scholarship,

11 PEOPLE IN THE LAW November 2017 · LAWTALK 912

PEOPLE IN THE LAW The voices of history

BY KATE GEENTY

The stories of some of New Zealand’s pioneering women judges have been recorded for posterity – in their own voices.

they will take heart and encouragement The New Zealand Women Judges Oral Histories project from these interviews.” was the brainchild of the New Zealand Association of Women Judges, and was overseen by Dame Judith Potter and Justice The project Susan Glazebrook. Professional oral historian Megan Hutching An interview with Dame Augusta conducted most of the interviews, but also trained Dame Judith Wallace by Judge Ida Malosi sparked and Justice Glazebrook, who each carried out some interviews interest in creating a wider project. “We of their own. had that interview, which was a terrific The interviews capture what it was like to rise through the initiative, and was the seed which led legal ranks at a time when women weren’t expected to forge to the development of the project,” says high-powered careers. Dame Judith says one common theme Dame Judith. to shine through was the bravery and determination of these Discussions were held at meetings of convention-bucking women. the New Zealand Association of Women “They were women from an era where becoming a lawyer was Judges, and a small committee was formed not on the cards. They often had young families, they had husbands to progress the idea. That committee was who expected them to stay home and look after those families, eventually whittled down to just Dame there were other impediments in their way, yet in various ways Judith and Justice Glazebrook. “When you and in various circumstances, they soldiered on.” have a project of this length and breadth Dame Judith said the interviews provide an insight into the you really need a couple of people to steer wide range of backgrounds and experiences of these pioneering it otherwise you don’t make enough pro- women. “One thing that shone through the interviews was that gress, so Susan and I took responsibility all of these women came to love the law. All of them saw bigger for it.” horizons for themselves than many women of their era did.” The project received funding from the She is hopeful the recordings will be inspirational to future New Zealand Law Foundation and the generations. “I think they will provide comfort and strength and Ministry for Culture and Heritage. will also lead younger lawyers in their own careers, because As well as co-convening the project, young lawyers today still experience many of the challenges Dame Judith was the first interviewee. One and difficulties these pioneering women experienced. I think of two women law students to graduate from the University of Auckland in 1965, she went on to become a senior partner at Kensington Swan and was the first woman People in the law president of the Auckland District Law LawTalk is happy to publish information free of charge Society and the New Zealand Law Society. about appointments, awards and other changes in New Appointed a judge of the High Court of Zealand’s legal profession. Please send your contribution New Zealand in 1997, Dame Judith spent to [email protected] along with a jpeg photo if 15 years on the bench. appropriate. To be able to include as many announce- She says the interview process was “thor- ments as possible brevity is key and material received oughly enjoyable”, a sentiment echoed by may be edited – three or four sentences is the ideal other participants. “Other interviewees told length. The information will also be published in the NZLS me how much they enjoyed talking about website On the Move section, which is referenced in their experiences. In some cases, they hadn’t LawPoints each week. realised how unique and valuable their own experiences had become.”

12 LAWTALK 912 · November 2017 PEOPLE IN THE LAW

◂ Left to Right: Justice Susan Glazebrook and Dame Judith Potter

The interviewees (in alphabetical order) • Dame Silvia Cartwright • Judge Dale Clarkson • Judge Patricia Costigan • Judge Frances Eivers • Judge Caren Fox • Justice Ellen France • Justice Marion Frater • Associate Judge Anne Gambrill • Justice Susan Glazebrook • Dame Lowell Goddard • Judge Carolyn Henwood • Judge Anne McAloon The process I knew. What I realised when I did the inter- • Judge Stephanie Milroy Each interview was broken into stages, views was there was a whole lot more to • Dame Judith Potter starting with an unrecorded conversation know and understand about these women. I • Judge Cecile Rushton where all the details were discussed and came to know them better and to admire and • Judge Coral Shaw notes were taken. That formed the basis respect them even more than I had before, • Judge Heather Simpson of how the interviewer would approach so it really was a most rewarding process.” • Judge Annis Somerville the recorded interview. • Judge Vivienne Ullrich “There was a gap between the two How to access the interviews • Judge Carrie Wainwright interviews so that both parties had time to Audio copies of the interviews are being • Justice Helen Winkelmann consider and then the recorded interview held at the Alexander Turnbull Library in Sir John McGrath and Sir Ronald took place. So, it was quite a lengthy and Wellington, along with a written transcript Young were also interviewed to demanding process. Each interview would of each interview and additional infor- give insight into the early appoint- take two to three hours at least. It was a mation about each interviewee. Some of ment of women judges from people very professional undertaking and Megan the interviews have an embargo which involved with the appointment Hutching was critical to that,” Dame Judith restricts access or publication without per- process. says. mission for a number of years. Permission An interview with Dame Augusta for access must be sought from the New Wallace was completed by Judge Their own stories in Zealand Association of Women Judges, to Ida Malosi before the project their own voices ensure that access is restricted to genuine began. Hearing the women’s stories in their own researchers. ▪ voices brings their stories alive, says Dame Judith. “There is so much that is conveyed by their responses, by their tone, the enthusiasm, their concern – all of that comes through in the voice of the person being interviewed and it contributes to a dimension that you can’t possibly get from Legal Accounting Bureau · Save time and money Kathy Kell the written word.” provides comprehensive, · Always know your trust account [email protected] accurate, efficient and timely is balanced and your month end Conducting five interviews herself was certificates are filed on time Ph 09 444 1044 management of solicitors’ trust Fax 09 929 3203 accounts. · Our service is completely secure a learning experience. “The women being and confidential www.accountingbureau.co.nz interviewed were very articulate people and Outsource the management of · Trusted professionals with over your firm’s trust account. Either 20 years’ experience very used to speaking publicly, but also quite come to us or we can come to · 62 law firms currently use our Powered by juniorPartner. self-effacing. What was really interesting for you remotely. services Practice Management software you can trust. me, was I was interviewing people I thought

13 NZLS AT A GLANCE November 2017 · LAWTALK 912

NZLS AT A GLANCE

Reforming the Law NZLS Law Reform and I would like to publicly thank a lot of people. Recently the New Zealand Law Society decided on membership of our 16 specialist law reform committees for the next two years. I am delighted that we have secured the ideas, the experience and the time committees commitment of a large group of lawyers. Our 16 committees bring together 136 people. Add to that members of the Family Membership of the New Zealand Law Law Section, the Property Law Section who Society’s law reform committees for are involved in considering plans to reform the period from 1 September 2017 to 30 our law, and we will bring a lot of firepower September 2019 was finalised recently. to ensuring the Law Society continues to also been legislated to be a function of the Convenors and committee members are be one of the major participants in some- New Zealand Law Society: “To assist and as follows. thing which can have an impact on all promote, for the purpose of upholding the The convenors of the NZLS specialist New Zealanders. The committee members rule of law and facilitating the administra- committees and chairs of the Property are all giving their time and expertise on tion of justice in New Zealand, the reform Law and Family Law Sections also sit on a voluntary basis. On behalf of the legal of the law.” (section 65(e) Lawyers and the Law Reform Committee. profession I’d like to say how much this Conveyancers Act 2006). is valued and appreciated. In this issue of LawTalk we are pleased Law Reform Committee The New Zealand Law Society has a long to publish the names of the members of Liesle Theron, convenor history of providing practical and informed each of the committees. It is clear we have Tim Stephens, Nick Whittington, Jo input into the reform of our country’s a wonderful blend of youth and experience. Appleyard, Matthew Harris, Alastair laws. Sixty years ago in 1957, the NZLS Our committee members are Queen’s Logan, Kristina Muller, Jonathan Orpin- annual report states that the Law Society Counsel, barristers sole, in-house lawyers, Dowell, Edward Scorgie, Jane Standage, “perused” 110 Bills, considered 12 in some academics, sole practitioners, lawyers in Esther Watt, Jack Wass, David Cochrane, detail and made submissions on eight. This small firms, lawyers in medium firms, and Rebecca Thomson, and Janna McGuigan. continued what was already a long tradi- lawyers in large firms. They are directors, tion of commitment to law reform, and one partners and employees and they live and ACC Committee which endures today. Of course, we now work in locations all around New Zealand. Don Rennie, convenor have 16 committees and an in-house legal And – a matter which is of the utmost Hazel Armstrong, Alistair Barnett, Tiho team to support them, while there was importance to the Law Society – 43% of Mijatov, Peter Sara, Phil Schmidt, Ben a two-person “Law Revision Committee” our law reform committee members are Thompson, Chris Hlavac, and Hunter de in 1957. women. Seven of the 16 convenors are Groot. I’ll refer to another early annual report women. This is a major increase from the – from 1952 – for the fundamental prin- membership of the 2015-17 committees. It Civil Litigation & ciple which is behind our involvement is reflective of the fact that at 10 October Tribunals Committee in law reform: “It is not the function of New Zealand had 6362 practising female Andrew Beck, convenor the Society to criticise policy legislation lawyers and 6454 male lawyers – basically J Edward Bayley, Kevin Clay, Allison but representations to the Government identical numbers. With equality of num- Fergusson, Kate Cornege, Daniel have been made where the principles of bers, why should there not be equality of Kalderimis, Shane Campbell, and Iva justice appear to be infringed in a Bill, or input and involvement in all things lawyers Rosic. it appears that a Bill might be made more do – including reform of the law. We have workable or improved by amendment.” stated our commitment to ensuring gender Commercial & Business This approach endures today. Our expertise diversity and opportunity. It is exciting that Law Committee and impartial input for the benefit of all this is now happening in an area which Rebecca Sellers, convenor New Zealanders has been recognised many will benefit all New Zealanders. John Horner, Stephen Layburn, Nic times by Parliament’s select committees Kathryn Beck Scampion, Andrew Wallace, Deemple and others in governmental circles. It has President, New Zealand Law Society Budhia, and Charlotte McLoughlin.

14 LAWTALK 912 · November 2017 NZLS AT A GLANCE

New NZLS Committee Criminal Law Committee Convenors Steve Bonnar QC, convenor Chris Macklin, James Rapley, Mike Leader in the Human Rights Team. Victoria Ruffin, Sarah Saunderson-Warner, Five new committee convenors have joined the independent bar in 2012 and Simon Shamy, Todd Simmonds, been appointed for the next two years. Brief took silk in 2016. She has a broad civil Warren Brookbanks, Fiona Guy Kidd, details of the new convenors are as follows: litigation practice with a particular focus and Lynn Hughes. on public law. Her areas of practice include Maria Dew regulatory and competition litigation, Employment Law Committee Employment Law Committee administrative law and judicial review, Maria Dew, convenor Maria has more than 25 years’ experience human rights, health and safety, envi- Michael Quigg, John Hannan, as a litigator, with a specialist practice in ronmental law, extradition, negligence, Stephen Langton, Professor Paul employment law, professional misconduct inquests, inquiries and Crown liability. Roth, Shima Grice, Christie Hall, and related civil litigation. She is regularly Lucia Vincent, and Tim Oldfield. appointed as an independent investiga- Mark Williams tor to conduct public and private sector Immigration & Refugee Law Committee Environmental Law employment investigations, and she also Mark specialises in immigration law, with a Committee acts as a commercial mediator. Maria cur- focus on individual/family, business/invest- Bronwyn Carruthers, convenor rently serves as the Deputy Chair of the ment and corporate migration services, and Phil Page, Helen Andrews, Robert Health Practitioners Disciplinary Tribunal. is an internationally recognised expert in Makgill, Vicki Morrison-Shaw, Trevor New Zealand immigration law. He represents Robinson, and Vanessa Hamm. Bronwyn Carruthers private and corporate immigration clients, Environmental Law Committee including multinational companies, large Health Law Committee Bronwyn is an environmental law special- to medium New Zealand businesses, and Adam Lewis, convenor ist, with expertise in all aspects of resource many internationally recognised business Jonathan Coates, Meenal Duggal, management and environmental law, as and investment migrants. Mark is an Adjunct Holly Hedley, Fiona McCrimmon, well as public and local government law. Professor of Law of Victoria University and Amanda Mark. Bronwyn has extensive experience in (Melbourne), and was a lecturer in immi- resource management litigation in the gration law at the University of Canterbury. Human Rights & Environment Court as well as the higher Privacy Committee appellate courts (including the Supreme Rebecca Plunket Victoria Casey QC, convenor Court). She is on the Editorial Committee of Youth Justice Committee Andrew Butler, Peter Barnett, the Resource Management Law Association, Rebecca is a barrister specialising in youth, Katrine Evans, Juliet Philpott, and delivers the Association’s National criminal and traffic law. Rebecca is a Youth Catherine Fleming, Honor Ford, and Roadshow on Case Law Developments. Advocate and regularly appears in the Greg Robins. Youth Court and Te Kooti Rangatahi Court Victoria Casey QC as well as the District and High Courts. Immigration & Refugee Human Rights & Privacy Committee She has established successful working Law Committee Victoria has worked in law firms in New relationships with various agencies and Mark Williams, convenor Zealand and Australia and in the Crown works closely with her local community John McBride, Kamil Lakshman, Rob Law Office, including as Deputy Team to address youth offending.▪ Davidson, So Mang You, Merlaina Donald, and Simon Laurent.

Intellectual Property Public & Administrative Tax Law Committee Law Committee Law Committee Neil Russ, convenor Greg Arthur, convenor Jason McHerron, convenor Geoff Clews, Shaun Connolly, Barney Andrew Brown QC, Doug Calhoun, Clive Nick Crang, Elana Geddis, Stephanie Cumberland, Mike Lennard, Mathew Elliott QC, John Glengarry, Virginia Winson, Sally McKechnie, Debra Angus, McKay, Graeme Olding, Stephen Nichols, Sheana Wheeldon, and David and Ben Keith. Tomlinson, Katherine Ewer, Kirsty Keating, Marriott. Andrew Ryan, and Pam Davidson. Rule of Law Committee Legal Services Committee Austin Forbes QC, convenor Youth Justice Committee Elizabeth Bulger, convenor Professor Philip Joseph, Sir Geoffrey Rebecca Plunket, convenor Elizabeth Hall, David More, Ingrid Palmer QC, James Wilding, Isaac Vicki Thorpe, Helen Bowen, Don Squire, Campbell Savage, Kerryn Beaton, Hikaka, Gregor Allan, and Jane Kennedy, Dale Lloyd, Siobhan McNulty, Louise Sziranyi, and Anna Fuiava. Anderson QC. Max Simpkins, and Brett Crowley. ▪

15 NZLS AT A GLANCE November 2017 · LAWTALK 912

Two decades of advocating for family law

legal executives and government employ- as “a forum … which In December the Family Law Section ees, the work the FLS does benefits more was the blueprint for Murray Earl (FLS) will celebrate its 20th anniversary than practitioners and those involved in future consultation between the govern- since its establishment. It will mark this providing family law services. Importantly, ment and the legal profession.” special occasion by hosting dinners in the FLS also makes a difference for clients It’s not just on the national stage where Wellington, Auckland and Christchurch. of family lawyers, including children. The FLS shines. Preparing the shadow report Apply now for 2018 postgraduate Hamilton barrister Murray Earl, was model was so successful that the Law to the United Nations Committee on the heavily involved in the formation of the Society now has three sections, the FLS, Rights of the Child in Geneva, in February and professional programmes FLS in 1997. He’s seen “fearless leadership the Property Law Section and ILANZ – the 2016, the FLS reflected concerns that legis- during times of significant change” as the In-house Lawyers Association. lative amendments were inconsistent with FLS has worked closely with all govern- A major contributor to the development UNCROC, and that New Zealand had not ments over the past 20 years, reaching a of practice notes, the FLS also leads sys- ratified a convention that would provide place where it’s trusted by ministers and temic change by way of both regulatory and significant and practical benefits to New members of the judiciary. Today, the FLS legislative enactments. Murray Earl says Zealand children. continues to make its mark in a rapidly “the consistent approach by the FLS has “The invitation by the UN committee changing world, where reforms have been to attempt to work constructively to to the FLS to attend in Geneva illustrates impacted nearly every part of the practice benefit both practitioners and the public.” the ability of the FLS to draw international of family law. Undoubtedly, change is continuous. attention to the consequences of government He says it’s significant what’s been “It will never end. For that reason, it is action, or inaction, for children and families.” achieved in two decades. The Law Society essential that practitioners continue to Murray Earl has confidence that the section President at the time, Austin Forbes QC, support the FLS.” has a strong future. “Long may it continue saw the establishment of the FLS, with its In June 2011, 30 years after the Family without fear or favour to represent the family 250 members, as an important develop- Court was established, the FLS hosted a law profession and the families and children ment. In October 1996, he described the highly successful symposium. The event, at for whom they act.” This advocacy on behalf new section as “the path for the future Parliament, was in response to government of the family law profession, ensures the of the profession whereby groups with signalling a significant review of the Family family justice system meets the needs of a common interest could formalise their Court. Lawyers, counsellors, mediators, the families that come before it. It protects networks.” members of the judiciary and ministry the interests of children who are subject Now, with about 1,000 members of officials all working in the Family Court to proceedings, that can sometimes have family lawyers, legal academics, judges, participated, attending an event described life-long impacting effects. “Family law is a demanding and challenging area of the law. As practising family lawyers, we often Retiring Committee Convenors come across a problem we need to talk over with a willing listener or A number of convenors of the law reform committees have stepped down. The New need to discuss a matter to get an Zealand Law Society would like to record its appreciation of their commitment and impartial viewpoint.” excellent work in the field of law reform from 2015 to 2017. The FLS has a friends’ panel and an immediate issues response team who are available to assist and support members affected by trauma or pressure as a result of carrying out their professional duties. Murray Earl says “unfortunately, at times, very sad and Reﬁ ne your expertise, pursue your interests and join our tragic events can occur where family global community of scholars. Choose from a range of ﬂ exible lawyers need additional support and study options—from advanced degrees of international advice. The collegiality of the FLS is Michael Quigg, Phil Page, Andrew Butler, Marcus Vicki Thorpe, very strong.” reputation to short courses for busy professionals. Employment Environment Human Rights Beveridge, Youth Justice “I have personally worked with many Learn more and apply at victoria.ac.nz/postgraduate-law Law Committee Law Committee & Privacy Law Immigration & Committee family lawyers, over the years and am Committee Refugee Law proud to have made life-long friend- Committee ships with some of those people.” ▪

16 Capital thinking. Globally minded. Apply now for 2018 postgraduate and professional programmes

Reﬁ ne your expertise, pursue your interests and join our global community of scholars. Choose from a range of ﬂ exible study options—from advanced degrees of international reputation to short courses for busy professionals. Learn more and apply at victoria.ac.nz/postgraduate-law

Capital thinking. Globally minded. JUDICIAL REVIEW · UPDATE November 2017 · LAWTALK 912

UPDATE JUDICIAL REVIEW Broadcasting to the nation: the public’s interest in Gareth Morgan and TOP?

BY SALLY MCKECHNIE AND CHARLOTTE DOYLE

claimed that TVNZ’s criteria were unrea- TVNZ said no, and opposed the claim on Legal challenges over exclusion from sonable by being arbitrary. He sought an the basis that it was not a public body. The minor party leaders' debates are something order from the court to prohibit TVNZ from network argued that it was not exercising of a feature of general election campaigns. holding the debate without him. a public function, power or duty that made In 2005, the High Court ordered TV3 to its decisions open to judicial review. include United Future’s Peter Dunne and Decision Justice Venning disagreed and held the Progressives leader Jim Anderton in its Justice Geoffrey Venning heard the claim the network's decision was reviewable, a debate. In 2014, the Conservatives’ Colin at the Auckland High Court the day before decision consistent with earlier precedents. Craig successfully applied for an injunction the debate was scheduled to air. In both Dunne v Canwest TV Works Ltd to prevent TV3’s The Nation from hosting Commenting that the election campaign [2005] NZAR 577 and Craig v Mediaworks Ltd a debate without him. had been “extremely volatile”, Justice [2014] NZHC 1875, the court was satisfied Venning considered that TVNZ's decision that TV3’s election coverage made it a body TOP's challenge to TVNZ was reviewable, but he ultimately ruled performing an essentially public function Leading up to 2017’s election, it was Gareth in TVNZ’s favour. Unlike Mr Dunne or and exercising public powers (even if not a Morgan’s turn to protest. TVNZ had not Mr Craig, Gareth Morgan was denied the public body exercising statutory functions). invited The Opportunities Party’s (TOP) opportunity to broadcast his message As a commercially funded, yet state-owned founder to its multi-party political leaders' through this forum. (Morgan v Television network, it was not difficult for the court debate to be aired on 8 September. Seeking New Zealand Ltd [2017] NZHC 2178). to find TVNZ’s decisions over participation inclusion, Mr Morgan filed for judicial in its election debates were reviewable. review of the decision arguing that the Why could TVNZ be reviewed? network’s criteria for participation did not In making the decision about participation, What is a “public function” further democracy but instead protected was TVNZ making a “public” decision during an election? “the incumbents”. amenable to review? Both the Dunne and Morgan decisions refer As TVNZ explained to the court, the to s 4 of the Broadcasting Act 1989 that network had applied a set of criteria used requires broadcasters to ensure reason- in both the 2011 and 2014 elections. The able opportunities are given to present candidates needed to be: Commenting significant points of view. Under the Act, • The leaders of parties currently repre- that the election statutory control is also extended over sented in Parliament, campaign had been broadcasters on the basis of the public • MPs elected in 2014 who are leaders “extremely volatile”, function and nature of the broadcast. of parties registered on the register of Justice Venning More broadly, in Dunne, the High Court political parties, considered that was concerned to protect the fundamental • The leaders of registered parties not TVNZ’s decision right of citizens in a democracy to be as represented in Parliament that score 3% was reviewable, but well informed as possible before voting. in at least one of the two 1 News-Colmar he ultimately ruled Justice Venning followed Dunne, and found Brunton polls preceding the debate. in TVNZ’s favour. that the debates were the performance of Party leaders who announced that they Unlike Mr Dunne or a public function by informing voters how would not seek re-election were not Mr Craig, Gareth to vote. invited. Morgan was denied Our changing media landscape, and the Relying on evidence that TOP was poll- the opportunity emergence of new media, was a plank of ing higher than the Māori Party and ACT to broadcast his TVNZ's attempt to resist being subject combined, and arguing that poll results message through to review. It argued that “the world had were fundamentally uncertain, Mr Morgan this forum. moved on” since 2005 and the Dunne

18 LAWTALK 912 · November 2017 UPDATE · JUDICIAL REVIEW

broadcasting rules to reflect new media beyond polls to accurately recognise the usage. In August 2016, the Government also viable contenders for the election. For announced that changes would be made example, party membership or number to the Broadcasting Act to reflect the new of candidates. In Justice Venning's view, ways that New Zealanders are consuming, the network's criteria reflected the “prac- and broadcasting, news content. ticality” of MMP that there were two ways These reforms are not yet before the for parties to be represented in Parliament. House. However, by the 2020 election They were therefore not unreasonable. the law may have broadened its scope The fate of a party seeking to break into to capture a wider category of judicially Parliament was clearly not persuasive. reviewable 'broadcasters'. Nor was the court persuaded that the order sought by Mr Morgan was reasonably Were TVNZ’s criteria necessary to preserve his position going unreasonable? into the election. The court observed that Having decided TVNZ could be reviewed, while TOP would miss out on an oppor- Justice Venning felt that the “real issue” in tunity to promote its cause and policies, this case was whether TVNZ’s criteria were Mr Morgan had already participated in a unreasonable. Mr Morgan argued that the number of other debates involving party criteria, and their application, were arbi- leaders including one hosted by TVNZ ▴ Gareth Morgan trary and failed to afford parties not yet in called the "Contenders Debate". Parliament an achievable opportunity to As the application for interim relief participate in the debate. would effectively determine the outcome decision, with parties now able to promote His main contention was directed at of any further proceeding, the court also and publicise their candidates and policies the legitimacy of poll results and the net- considered it was required to adopt a in new ways. Justice Venning rejected work's reliance on them. He argued polls “more robust attitude”. this argument without analysis. He later were generally uncertain and inherently Ultimately, the court found TVNZ’s concluded, in considering the prejudice to movable, with a margin of error that made criteria to be transparent and workable Mr Morgan, that there would be limited them inaccurate. and the debate went ahead without a TOP impact on his position because there were The method of polling was also chal- representative. “other means of promotion” of his cause. lenged. In Dunne the criteria used by TV3 With new forums and more debates, was found to be arbitrary because it was The future? TVNZ also pointed out, comes greater based on one polling result. It is clear that there is a mismatch between potential for judicial review applications. TVNZ's criteria relied on two poll results the criteria and later electoral performance. Justice Venning does not address this from the same company, Colmar Brunton. The final election results showed TOP as point: in the future, how wide could “public Mr Morgan argued that sourcing polls the fifth-ranked party with 2.4% – ACT won function” be? exclusively from one company would lead 0.5% of the party votes (13,075), the Māori This campaign saw an expansion of elec- to inaccuracy, and other official polls had Party, 1.2% (30,580), and United Future 0.1% tion coverage. The Spinoff website hosted placed his support closer to the network’s (1,782). TOP ranked nearly 20,000 votes a debate on Facebook Live which featured 3% threshold. At the time of the debate, higher than these parties combined with "the mouthiest and most passionate pol- TOP was polling higher than many of the 63,261 votes. iticians and wannabes" –Paula Bennett other minor parties invited, with the fifth So with minor parties losing electoral (National), Kelvin Davis (Labour), Marama highest level of national support. seats, do the broadcaster’s criteria need Davidson (Greens), David Seymour (ACT), In assessing the criteria, the High Court revisiting? Justice Venning noted that Shane Jones (New Zealand First), Marama took a wider look, and considered TOP’s minor parties tend to hold the balance of Fox (Māori Party), and Gareth Morgan. The poll results from March to late August 2017. power and their voices are legitimate ones Spinoff was widely read, and its stories On those, the court did not consider that to be heard. In 2020, these voices may need shared, throughout the campaign. TOP was “building momentum” towards to find avenues in the new media. There may be some force in TVNZ’s the 5% MMP threshold. Against that back- It will be interesting to see if judicial concerns about the possible expansion of ground, whether or not reliance on two review also extends that far. ▪ review. Would such sources of journalism, polls from the same company was suffi- such as The Spinoff, be open to legal chal- cient for a selection process for a leaders' Simpson Grierson partner Sally McKechnie lenge in future elections? Possibly. debate was not explicitly discussed in the  sally.mckechnie@simpsongrierson. The Justice and Electoral Committee's decision. com and Charlotte Doyle  charlotte. Inquiry into the 2014 General Election Gareth Morgan also argued more broadly [email protected] are based included proposals for updating election that the criteria should look at other factors in the firm’s Wellington office.

19 CLASS ACTIONS · UPDATE November 2017 · LAWTALK 912

UPDATE CLASS ACTIONS Five month opt-in granted for leaky-building class action

BY STUART DALZELL

rather than being facilitative of it.” relied on the majority decision in A class action proceeding claiming that James Turning to the opt-in periods, the Credit Suisse, which concluded that Hardie’s Harditex and Titan Board plaster cladding court noted these were “standard under the High Court Rules the products are inherently defective and cause water practice” but had been limited by proceeding is brought for limitation ingress and damage has been given the green light by the judge to the period of days or purposes when the statement of the Court of Appeal. weeks between the filing of the claim is filed. In Cridge v Studorp Ltd [2017] NZCA 376, the Court of relevant representative claims and The court found that “Having the Appeal has also allowed a cross-appeal by the home- 31 December 2015, being the date the clock stop when the representative owners seeking longer “opt-in” periods for qualifying 15-year longstop limitation period proceedings are filed removes uncer- members of the relevant class formally to opt in. under s 23B of the Limitation Act tainty and so avoids the filing of what The High Court had earlier granted representative 1950 took effect. may well turn out to be needless orders under High Court Rule 4.24(b), identifying three In the court’s view, James Hardie’s individual joinder applications or common issues which should be resolved together in and the High Court’s reliance on the separate individual proceedings.” the interests of justice and efficiency: Limitation Act to curb the opt-in Here, time stopped for everyone • Whether James Hardie owed a duty of care, periods was “misconceived” and in the class, irrespective of whether • Whether James Hardie had breached that duty of took “insufficient account of access the representative orders were later care, and to justice considerations”. made or not. In short, class mem- • Whether statements made by James Hardie in tech- “The purpose of an opt-in period,” bers did not need to keep one eye nical literature were misleading and deceptive under the court said, “is not to enforce the on the limitation period pending a the Fair Trading Act 1986. limitation period but rather to reduce decision on the class action orders. Writing for herself and Justices Cooper and Asher, Justice the original class to those who take Court costs have been awarded French dismissed James Hardie’s appeal. Though the the positive step of opting in.” in favour of the owners. claims span a period of 16 years during which time there Agreeing with the plaintiffs’ The decision affects potentially have been changes to the James Hardie products, 10 argument (cross-appealing) that thousands of properties, including different versions of its technical brochures, regulatory the opt-in periods granted by the town houses, apartments and changes and changes to the state of industry knowledge High Court were far too short and other buildings that were built about water management, “the Harditex cladding system likely to “deprive many potentially using Harditex and/or Titan Board has itself remained substantially similar throughout the eligible class members of the ability cladding throughout the 1990s and entire period,” she said. to opt in and seek recovery of their early 2000s. Adding that James Hardie’s submissions “overstate alleged losses,” the five-month It follows last year’s Supreme the difficulties [and] differences between the claims,” the period was considered reasonable in Court decision in the “leaky schools’ court found they also “underestimate the Court’s powers the circumstances to allow potential litigation” brought by the Minister of case management and its ability to be creative.” class members to be made aware of of Education against Carter Holt “Time-dependent variables,” French J said, “could the claim and to take appropriate Harvey, that product liability (clad- for example be accommodated by the creation of legal and expert advice. ding systems) claims were argua- sub-classes.” Although unnecessary to decide ble and not subject to the 10-year The court summarised the general principles appli- given its dismissal of James Hardie’s longstop limitation period in the cable to applications for representative orders under appeal, the court also dealt with an Building Act (not building work) r 4.24, which it said were “well-established” and had appeal by the homeowner plaintiffs (Carter Holt Harvey Ltd v Minister of been considered by the Supreme Court in the Feltex against the earlier decision of the Education [2016] NZSC 95). ▪ litigation – Credit Suisse Private Equity LLC v Houghton High Court declining to grant orders [2014] NZSC 37. on the eve of the 15-year longstop Stuart Dalzell is a partner at Parker A “liberal and flexible approach” was required, the to preserve the position of members & Associates, which acted for the court said, noting also that “the court should be wary of the class. successful homeowners in the of looking for impediments to the representative action Allowing the appeal, the court case.

20 LAWTALK 912 · November 2017 UPDATE · EMPLOYMENT

UPDATE EMPLOYMENT Balancing contractual intention and legislative rights: The case of the peripatetic pilots

BY REBECCA SCOTT AND INES SHENNAN statutory interpretation, as best serving the task of determining the “territorial reach” of legislation – a “single-step” Pilots win age-discrimination case as the Supreme process. The ERA’s personal grievance procedure is a right Court finds that non-discrimination rights are not arising out of statute, rather than flowing from contractual arrangements between employer and employee. To the contractual – Brown & Anor v New Zealand Basing extent there is an employment agreement in play this Ltd [2017] NZSC 139. merely “provides the context in which the conduct is legislatively addressed” ([2017] NZSC 139 at [68]). Rights not to be discriminated against apply where the a contract, can the law of the forum employee is based in New Zealand, even where a differ- Cathay Pacific’s Hong Kong override this on public policy ent legal system governs the employment agreement, subsidiary, New Zealand Basing Ltd grounds or by mandatory rule? or the employee works partly outside New Zealand. (NZBL), employed two airline pilots. On this analysis, where an Elias CJ, O’Regan and Ellen France JJ also confirmed The pilots were ultimately based employment agreement holds a that the appellants were protected by the ERA’s age in New Zealand, although their foreign element, the ERA will apply discrimination provisions. working activity largely took place only where the choice of law process outside the country. Their employ- reveals the governing law is that Statutory interpretation ment contracts had a retirement age of New Zealand, or public policy The unique nature of employment law led the matter to of 55 and were expressly governed grounds, or mandatory rule, may being one of statutory interpretation. The object of the by Hong Kong law (which does not override the governing foreign law. ERA is productive employment relationships, empha- protect against age discrimination). The Court of Appeal considered sising good faith. The ERA includes personal grievance When the pilots turned 55, NZBL the underlying rights as contractual provisions. These link in withs 21(1) Human Rights Act attempted to terminate their employ- in nature, and that Hong Kong law 1993 and s 19 New Zealand Bill of Rights Act 1990, which ment, relying on the contract and applied. It was not satisfied that render discrimination unlawful. Hong Kong law. The pilots brought Parliament intended for s 238 ERA Here there was an Auckland “home base”, a specific personal grievances based on the to override the parties’ choice of requirement of the employment that the appellants would anti-discrimination provisions in law in this case, nor that that free- reside and continue to reside in Auckland, and salary reflec- s 104 of the Employment Relations Act dom from age discrimination is an tive of the lower cost of living in Auckland than Hong Kong. 2000 (ERA), which bar employers from absolute value or a fundamental Coupling these factors with the scheme and purpose of the retiring employees by reason of age. requirement of justice. ERA, the parties’ choice of law provision was irrelevant in The pilots argued that, despite any this case. Construction of the ERA in a manner to allow contrary provision in the employ- Overturned discrimination in the employment context, solely on the ment contracts, New Zealand law The Supreme Court overturned basis of the parties’ choice of law, would be “very odd”. applied in light of s 238 of the Act, the Court of Appeal’s decision. It Where employees are based in New Zealand, which prohibits contracting out. affirmed that the right not to be dis- employers cannot contract out of anti-discrimination Alternatively, they said that apply- criminated against is a free-stand- protections. Sexual and racial harassment are wrong, ing discriminatory Hong Kong law ing right, not contractual, and irrespective of whether they are permitted by an employ- was contrary to public policy. independent of the employment ment agreement. The right not to be discriminated The Court of Appeal essentially agreement. The contractual choice of against is correspondingly fundamental. ▪ applied a conflict of laws framework: law clause was therefore irrelevant. Firstly, to which legal system does The Supreme Court’s decision was Rebecca Scott  [email protected] the relationship belong? unanimous, with some different is a partner and Ines Shennan a solicitor with Wotton + Secondly, the issue must be charac- reasoning in two judgments. Kearney (formerly DAC Beachcroft New Zealand). terised, eg, is it contractual in nature? William Young and Glazebrook JJ Their practice covers employment law, insurance Thirdly, if a foreign system governs proposed a purposive approach to and professional liability.

21 SEXUAL HARASSMENT · UPDATE November 2017 · LAWTALK 912

UPDATE SEXUAL HARASSMENT Do we have a consistent approach? Sexual experience and reputation evidence in civil sexual harassment claims

BY MARIA DEW AND CHRISTINA LAING

evidence in criminal sexual proceed- At the same time as providing for recognition of sexual The Employment Relations Act ings. Section 44(2) provides that in harassment in the workplace, the LRA also provided 2000 (ERA) and the Human Rights a criminal sexual case, as defined in a mechanism for dealing with sexual experience and Act 1993 (HRA) both have legislative s 4 of the EA, there is an absolute bar reputation evidence in a sexual harassment proceed- mechanisms governing the evidence against evidence of the reputation ing. Section 221(c) of the LRA provided that “neither of the sexual experience and rep- of the claimant in sexual matters the grievance committee nor the Labour Court shall utation of a claimant in a sexual from being introduced. Section 44(1) take into account any evidence of the worker’s sexual harassment proceeding. excludes all evidence of the com- experience or reputation”. The wording of s 116 of the ERA plainant’s sexual experience except When the LRA was repealed and replaced by the and s 62(4) of the HRA are almost with permission of the judge, which Employment Contracts Act in 1991 (ECA), the wording identical. Section 116 of the ERA is to be given only if the proposed of s 221(c) was brought forward, amended and included provides: evidence meets the heightened at s 35 of the ECA. In 1993, the wording of s 35 of the ECA “Where a personal grievance direct-relevance test in s 44(3). The was then replicated at s 62(4) of the HRA and eventually involves allegations of sexual evidence sought to be introduced in 2000, the same wording was adopted in the current harassment, no account may must be of such direct relevance to s 116 of the ERA. be taken of any evidence of the facts in issue that it would be the complainant’s sexual expe- contrary to the interests of justice Interpretation of the HRA rience or reputation”. to exclude it. This provision does not and ERA provisions Similarly, s 62(4) of the HRA extend to civil proceedings. On their plain meanings, both s 116 of the ERA and s 62(4) provides: Currently, the ERA and the of the HRA exclude all sexual experience or reputation “Where a person complains of HRA provide the only statutory evidence relating to the complainant. Interestingly, there sexual harassment, no account provisions controlling this type of is no provision permitting judicial discretion to admit shall be taken of any evidence evidence in civil proceedings. It is such evidence. The delicate balancing exercise set out of the person’s sexual experi- worth noting that there is no evi- in s 44 of the EA, with respect to sexual experience ence or reputation”. dential mechanism that is of general evidence in criminal sexual cases is not provided for in A legislative mechanism to control application to civil proceedings; civil claims under the ERA or HRA. The most obvious evidence of a claimant’s sexual which might be thought necessary problem with these civil provisions is that they also experience or reputation is not a in a civil sexual abuse claim, where appear to exclude evidence that relates to the actual new concept in New Zealand. The that claim is not brought under sexual harassment claim itself. This interpretive issue first legislative provision that oper- either the ERA or the HRA. was dealt with by the Human Rights Review Tribunal ated to control this type of evidence (HRRT) in Director of Human Rights Proceedings v Smith in criminal sexual cases was enacted History of s 116 of the ERA (2004) 7 NZELC 97,425, [2004] NZHRRT 1. by the Evidence Amendment Act So how did such a statutory provi- In 2004, the HRRT in Smith undertook a thorough 1977 with the introduction of s 23A sion come about in the employment interpretation of s 62(4) of the HRA. The employee, X, of the Evidence Act 1908. This pro- jurisdiction? In 1987, the Labour had alleged sexual harassment by another employee, Mr vision was slightly amended and Relations Act 1987 (LRA) at s 210(1)(d) Smith. The crux of Mr Smith’s defence was that X was a carried through into s 44 of the introduced the first statutory recog- willing participant in sexual conduct between them and Evidence Act 2006 (EA). However, nition of sexual harassment in New that she did not find his behaviour either unwelcome s 44 of the EA only provides a Zealand and provided a route for or offensive. Mr Smith sought to introduce evidence detailed mechanism for managing managing sexual harassment dis- of previous sexual encounters with the complainant sexual experience and reputation putes in the employment context. as evidence of her willing participation in the conduct

22 LAWTALK 912 · November 2017

that was the subject matter of these proceedings. The Tribunal’s interpretation of s 62(4) was that it could not be read literally. Despite what its plain reading seems to exclude, it does not prevent the introduction or testing of evidence that is directly relevant to the matters at issue in the current proceeding. In short, the Tribunal held that s 62(4) does not exclude evidence of a complainant’s sexual experience with the defendant if it has direct relevance to the contro- versial issues. The Tribunal held, the evidence must relate to the act, events or circumstances at issue, or be of such relevance to the facts at back to 1987, it is remarkable that there have been no consider when assessing the posi- issue, or the issue of appropriate cases in the employment jurisdiction that deal substan- tion for any claimant or respond- compensation, that it would be tively with s 116 of the ERA or its predecessors. There ent. A respondent who wishes to contrary to the interests of justice have only been two cases that touch on that topic. In refer to prior sexual experience to exclude it. Morrow v Idea Services Ltd [2017] NZERA Wellington 71 evidence about a claimant, during the Employment Relations Authority acknowledged any discussions, should properly Similarity with section that s 116 existed but noted that no evidence of that be met with the exclusionary rules 44 of the EA nature was put before the authority in that case. In Air discussed. The interpretation of the HRRT in Nelson Ltd v C [2011] NZCA 488 the New Zealand Court of Smith is similar to the approach Appeal responded to concerns raised by counsel for the Conclusion taken by the courts under s 44 of the appellant that the Employment Court Judge had inap- In the employment and human EA. A direct relevance test has sim- propriately taken into account the complainant’s sexual rights jurisdictions, New Zealand ilarly been introduced by the HRRT experience or reputation. The Court of Appeal noted that legislation does adopt a consistent in relation to evidence about sexual while the Employment Court Judge’s conclusion on the approach to dealing with evidence experience with the defendant in complainant’s behaviour was unnecessary, the overall of prior sexual experience and rep- those proceedings. However, it is finding was not based on that conclusion and therefore utation. The difference between this fundamentally different froms 44 was not grounds for reversing the Employment Court’s approach in a civil context and the of the EA in that the interpretation finding. There was no express mention of s 116 in this approach adopted in the criminal of s 62(4) by the Tribunal in Smith case. It does not seem that s 116 has ever been considered context under the EA, may be more only extends to evidence about in any substance in the employment jurisdiction. apparent than real. However, there the complainant and the defend- appears to be a gap in legislative ant. There is still an absolute bar, The impact on sexual harassment claims cover for any other civil claims absent of any judicial discretion There has been relatively minor judicial attention paid involving evidence of sexual expe- or direct relevance test, against to both s 116 of the ERA and s 62(4) of the HRA. However, rience or reputation. ▪ evidence of the sexual experience these provisions do warrant attention by lawyers, when- of the complainant and anyone ever dealing with a sexual harassment complaint or Maria Dew  maria@mariadew. other than the defendant in sexual claim. The vast majority of workplace sexual harassment co.nz is a barrister at Bankside harassment proceedings (a more complaints, workplace investigations and personal Chambers, Auckland who spe- stringent exclusionary rule than is grievances are resolved prior to any hearing. However, cialises in employment law. She is present in criminal sexual cases). in the process of resolving such complaints there may convenor of the NZLS Employment Given that the wording of s 62(4) well be evidence that a respondent or complaint will Law Committee. of the HRA is similarly present in seek to rely upon that will bring into play s 116 of the s 116 of the ERA, it appears that the ERA or s 62(4) of the HRA. Christina Laing christina.laing@ same interpretation will logically As pointed out by the HRRT in Smith, the purpose bankside.co.nz is in her final year apply to s 116 of the ERA. of s 62(4) is to prevent unfair harassment in court of of an LLB(hons) degree at the the complainant by questions about their previous University of Auckland and works A dearth of case law sexual experience. Although this evidentiary rule only for Simon Mount QC at Bankside Given the legislative history dating applies during a proceeding, it will also be relevant to Chambers.

23 OVERSEAS TAXATION · UPDATE November 2017 · LAWTALK 912

UPDATE OVERSEAS TAXATION New UK reporting obligations and how they may affect New Zealand

BY HENRY BRANDTS-GIESEN AND NICK BERESFORD

Even before the Regulations were New Zealand has long been a favoured destination for enacted, British expatriates had potential British expats, with recent estimates suggesting there are more tax liabilities to HMRC. This is because than 300,000 British citizens living here. Some reports have pre- the UK taxes certain transfers of assets to dicted a further surge in interest as a result of Brexit. Furthermore, UK tax trusts and levies periodic inheritance tax many New Zealanders migrate in the other direction but maintain liabilities charges on non-UK trusts if the trust holds financial connections to New Zealand. In our increasingly glo- can often UK situs assets or the settlor is domiciled in balised world most New Zealand lawyers and accountants will arise in the UK under the common law definition have clients with some connection with the UK. unexpected of domicile. In this respect, the UK differs Many British expats assume their UK tax obligations end the ways even from many other jurisdictions which levy moment they step off the plane in New Zealand. However, in after an inheritance or estate taxes on the basis contrast to New Zealand, the UK has a highly complex personal individual of situs of property and/or tax residence. tax regime and has a broad capital gains tax as well as inheritance has ceased As a result, non-UK resident but UK taxes which apply to both individuals and trusts. UK tax liabilities to be domiciled settlors and non-UK trustees can often arise in unexpected ways even after an individual has resident can (often unwittingly) be subject to inher- ceased to be resident in the UK for tax purposes. Furthermore, in the UK itance tax if they own UK situated assets, very few New Zealand lawyers and accountants seem to be aware for tax or if the settlor has retained a UK domicile. that UK tax obligations may have extraterritorial effect. purposes. UK inheritance tax legislation provides that a UK resident and UK domiciled individual The EU’s directive and new HMRC retains a ‘deemed’ UK domicile for three reporting obligations years following their date of departure On 26 June 2017 the EU’s 4th Anti-Money Laundering Directive from the UK, even if such departure is permanent. Any trusts (4AMLD) was implemented into UK law by the Money Laundering, established during this three year period can be subject to ongoing Terrorist Financing and Transfer of Funds (Information on the UK inheritance tax charges. Payer) Regulations 2017 (the Regulations). In addition, some forms of UK source income (including divi- The Regulations update the UK’s existing Anti-Money Laundering dends from UK companies) can be taxable to non-resident trustees regime. In doing so, they introduce new beneficial ownership if the trust has one or more UK resident beneficiaries. reporting requirements for trusts which are subject to UK taxation. For example, the authors are aware of many situations where The reporting aspects of the Regulations have extraterritorial effect new migrants to New Zealand from the UK have purchased a as they purport to apply regardless of where the settlor, trustee New Zealand home through a trust that they set up shortly after and beneficiaries are resident for tax purposes. arrival in New Zealand and almost certainly whilst they were still Affected trustees are required to report a wide range of infor- domiciled in the UK for inheritance tax purposes. The Regulations, mation to Her Majesty’s Revenue and Customs (HMRC). Due to together with the exchange of financial information facilitated by the complexity of the UK tax system, reporting obligations may the Common Reporting Standard, now mean that it is possible arise in unexpected ways. There are civil and criminal penalties that these transactions could come to the attention of HMRC, with for non-compliance, and so it is important for New Zealand-based potentially very adverse consequences for clients and advisors. trustees, lawyers and accountants to have an understanding of the circumstances in which UK taxation (and therefore a reporting Which trusts must report? obligation) arises. A trust will have a reporting obligation to HMRC in every tax year in which the trustee is liable to pay any of the following taxes Non-UK trusts and the scope of UK taxation in the UK: income tax, capital gains tax, inheritance tax (IHT), Trustees of non-UK trusts face an exceedingly difficult task com- stamp duty reserve tax (SDRT), and stamp duty land tax (SDLT). plying with the complexity of UK tax legislation. The following relatively common scenarios will give rise to a

24 LAWTALK 912 · November 2017 UPDATE · OVERSEAS TAXATION

reporting obligation: • Holding UK situated assets in excess of the IHT tax-free threshold Example 1 – UK situated assets (or ‘nil-rate band’) of £325,000 on the 10-yearly anniversary date The Kiwiana Trust is a trust settled by a British citizen following of the trust’s settlement, permanent relocation to New Zealand in 2010. A New Zealand • Distributing UK situated assets to a beneficiary (regardless of law firm’s trust company acts as the sole trustee and the class of the beneficiary’s country of residence), beneficiaries includes the settlor, the settlor’s spouse and their • Purchasing UK situated investments (such as shares in a UK adult children, all of whom are New Zealand resident. The Kiwiana listed company) that give rise to an SDRT liability for the trustee, Trust owns a home in Auckland valued at $NZ1.5 million and a • The receipt of UK source interest or dividend income by the portfolio of blue chip UK listed equities valued at £500,000. trustee where the settlor is non-UK resident, but there are one In this example, a reporting obligation arises for the trustee or more UK resident beneficiaries. if further UK equities are purchased (as SDRT will apply), if the Other perhaps less common scenarios (at least for the type of equities are still held at the time of the trust’s 10-yearly anniversary structures encountered by New Zealand-based trustees) but which in 2020 (as a periodic IHT charge would apply) or if the equities are will also give rise to a reporting obligation include: distributed to a beneficiary (as an IHT ‘exit charge’ would apply). • The receipt of rental income from UK residential property directly owned by the trustee, Example 2 – Beneficiary moves to the UK • The sale of UK residential property held directly by the trustee, One of the Kiwiana Trust’s adult children decides to move to and the UK to undertake university study. As the trust now has a UK • The purchase of UK residential or commercial property that resident beneficiary, the dividends received from the portfolio of results in the payment of SDLT by the trustee. UK equities will become taxable to the trustee at the UK’s trust income tax rate of 45%. A reporting obligation arises for the trustee What must be reported? in each year dividends are received for as long as the beneficiary The trustee of a trust with a reporting obligation must provide remains UK resident. HMRC with a wide range of information through a newly created online portal, including: • Name, date of establishment, country of residence and country of administration of the trust, and details of the trustee; • Name, tax number, address, passport number, and date of birth of the settlor, all current beneficiaries, and all “controlling persons” (including protectors and any other person with the ability to influence the trustee’s decisions); • Description of the class of “potential” beneficiaries (this includes any wishes as to future beneficiaries by the settlor in a Letter of Wishes or other document); • Details of the trust’s worldwide assets including current market values (rather than historic or book values); and • Details of the trust’s legal, financial and tax advisors. The register containing the information reported to HMRC will be available on request to a limited number of UK law enforcement bodies, including the Financial Conduct Authority, the National UPCOMING COURSES Crime Agency, the Serious Fraud Office and the police. DATE COURSE PRICE* This is narrower than Article 14 of 4AMLD, which suggested the registers maintained by EU member states should be accessible 02 Nov Mindfulness Workshop $115 to “persons who are able to demonstrate a legitimate interest” 02 Nov Social Media for Business $345 in the information on the register. This raised concerns that the 07 Nov Understanding Resilience $345 register may be made accessible to investigative journalists or *Prices include GST non-governmental organisations. Whether the UK’s narrower interpretation will be open to court challenge by parties claiming Workshops Held at The College of Law, Level 8, College of Law Centre, 3 City Road, Auckland a legitimate interest will remain to be seen.

What are the deadlines for reporting? BOOK TODAY FOR THESE POPULAR COURSES Trustees must report to HMRC by 31 January 2018 (for trusts which are already registered with HMRC for UK tax purposes), or, for Call (09) 300 3151 trusts which are not already registered with HMRC, by 31 January Email [email protected] Visit www.collaw.ac.nz following the end of the tax year in which the trust was liable to pay UK taxes.

25 OVERSEAS TAXATION · UPDATE November 2017 · LAWTALK 912

UPDATE Example 3 – UK domicile retained PROPERTY LAW The Hobbit Trust is settled by a British citizen in December 2007, two months after the settlor relocated to New Zealand. The trust purchased a residence used by the settlor in Wellington for $NZ800,000. More on the At the time the trust was established, the settlor had not formed the intention to remain in New Zealand permanently and in any case the trust was settled within new Land the three-year period following their departure from the UK. Therefore, the settlor was still British domiciled. As the trust was formed by a British domiciled individual, Transfer Act the trust is subject to the UK’s inheritance tax regime on its worldwide assets. In this example, the Hobbit Trust will have a periodic inheritance tax charge in December BY THOMAS 2017 and will therefore need to report by 31 January 2019 GIBBONS in respect of the 2017/18 UK tax year. The settlor may also face separate UK tax liabilities as a result of the settlement of assets on the trust. My last update (A New Land Transfer Act, LawTalk 909, August) considered three key issues arising from Conclusion the Land Transfer Act 2017: the new terminology of The EU’s 4th Anti-Money Laundering Directive and “record of title” (RT), the new “manifest injustice” test the associated UK Regulations can be viewed in the as an important exception to immediate indefeasibil- context of an ever-increasing push towards global tax ity, and covenants in gross (and the continued role of transparency and similar measures are being enacted encumbrances). in other EU member states and indeed globally. As with This article briefly considers some further issues most tax transparency measures there are implications arising from the new legislation. for personal privacy, duties of confidentiality and legal professional privilege. Purpose Many clients will feel uneasy providing HMRC with The purposes and intent of the Torrens system has been information greatly exceeding what may be exchanged debated since, and even before, its inception. It’s a good under the Common Reporting Standard, and certainly system, and the reasons why it is good are expressly exceeding that which is necessary for HMRC to be satisfied restated. that the trustee is meeting its UK tax obligations. In this The Land Transfer Act 2017 (LTA) aims to: regard the Regulations are not dissimilar to the recently • Continue and maintain the Torrens system in New imposed New Zealand foreign trust disclosure regime. Zealand; As yet, the UK Government has not shown an appetite • Retain the fundamental principles of that system – to introduce a public register of trusts, although this has security of ownership of estates and interests in land, been floated by sections of the UK and EU bureaucracy. facilitating land dealings, providing compensation, Thankfully, there is also no such suggestion in New and providing a register of ownership; Zealand, but it is not inconceivable. Notably, France • Reflect the electronic nature of the land transfer introduced its own public trust register in 2016 only register and associated dealings; for this to be declared unconstitutional by the French • By these means, maintain the integrity of title to Constitutional Court on privacy grounds. estates and interests in land. The Regulations add another layer of complexity for These purposes are stated ins 3, while s 10 restates the New Zealand-based trustees, lawyers and accountants purpose of the register: who act for clients with UK connections. It is important • To provide a public record of land subject to the LTA to understand, at a basic level, the types of scenarios 2017; that may give rise to UK taxation. As the Regulations • To provide a mechanism for creating title to estates are now law in the UK, trustees should be reviewing and interests that (subject to the legislation) cannot their client base to identify trusts which may be at risk be set aside; of incurring UK tax liabilities and seeking UK advice • To facilitate transfers and dealings with estates and where appropriate. ▪ interests in land; • To facilitate giving effect to the purposes ins 3; and Henry Brandts-Giesen  henry.giesen@kensington • To enable compliance. swan.com is a partner at Kensington Swan in Auckland That is, to achieve the economic aims of our society, and Nick Beresford  nick.beresford@maitland we want a public record of land ownership, we want a group.com is an associate at Maitland Advisory LLP strong system of “title by registration”, and we want it in London. to be easy to deal with land.

26 LAWTALK 912 · November 2017 UPDATE · PROPERTY LAW

Fraud The issue of what does, and does not, constitute “fraud” for the purposes of land transfer legislation has proven vexing. The Assets Co Ltd v Mere Roihi [1905] AC 176 (PC) case demanded “actual fraud, ie, dishonesty of some sort”, while the Waimiha Sawmilling Co Ltd (in liq) v Waione Timber Co Ltd [1923] NZLR 1137 decision suggested something in the nature of constructive knowledge could be sufficient to find fraud. The latter approach has often been criticised. The chosen solution in this instance has been to apply a statutory gloss to a judicial test. “Fraud” now has a specific definition ins 6, though it is really two definitions, with broader application for the purposes of the compensation provisions. In particular, the equitable doctrine of constructive notice is expressly stated not to apply. Registrar-General of Land (RGL) The “guaranteed” search to withhold information from the Regulatory Powers The notion of a guaranteed search is register for a person’s safety. While Those with constitutional interests might notes 228, contained within s 172A of the LTA these provisions are relatively pre- which states that regulations may provide for transi- 1952, though the specific wording scriptive in nature, they also provide tional and savings provisions concerning the Act coming “guaranteed search” does not appear a clear process (sections 41-43). into force, and these may be in addition to, or in place in the legislation. The “first period” The powers of the RGL relating of, the transitional and savings provisions of Schedule (that is, the period before settlement to the removal of easements and 1. Regulations should not override statute law. This in which a search copy of a record profits from the register that were section, and regulations made under it, have a time of title, or SCRT, is to be obtained) formerly contained in s 70 of the limit of three years, suggesting the draconian (or, put has been narrowed to five working LTA 1952 have been spread across another way, basely pragmatic) nature of this provision days (from 14 days); and the “second three sections: ss 113-115 of the has been recognised. ▪ period” (that is, the period after LTA 2017 help clarify the scope settlement which provides protec- and exercise of the RGL’s powers. Thomas Gibbons is a Director at McCaw Lewis, and tions against further registrations or The general (but limited) power of the author of the forthcoming A Practical Guide to lodgements) has been narrowed to the RGL to alter the register has been the Land Transfer Act 2017. 20 working days (from two months). restated in s 21. These no doubt reflect the faster pace of modern conveyancing, and the faster pace of the technology Trusted practice management which enables this. A small but important point is software for NZ lawyers that the LTA 2017 provides for a Easy to learn, easy to use. Save time and “covenant instrument”. Land cov- ! enants no longer need be created increase profits. That’s what users say by easement instrument. New: Document management & Internet banking. Free installation and training. Visit our website for testimonials from firms just like yours. RGL powers One addition that will be useful www.jpartner.co.nz [email protected] 09 445 4476 JPartner Systems Ltd in some cases is the ability of the

27 CONTRACTS · UPDATE November 2017 · LAWTALK 912

UPDATE CONTRACTS Commerce Commission poised to ramp up enforcement of Fair Trading Act 1986 ‘unfair contract terms’ provisions

BY ALISAUNDRE VAN AMMERS AND MADISON EDILSON

• Is in a consumer contract that Guidelines” – general guidance Provisions in the Fair Trading Act 1986 (FTA) is a standard form contract (as on how the Commission will prohibiting the inclusion of ‘unfair contract terms’ (UCT) defined ins 46J), and assess UCTs (February 2015) and in standard form consumer contracts came into force on • Does not define the main sub- “Consumers and unfair contract 15 March 2015. Since then, the Commerce Commission ject matter of the contract or terms” – a two-page fact sheet for has issued guidance on UCTs and conducted indus- set the upfront price payable consumers (March 2015). try-wide reviews of telecommunications, retail energy under the contract and is not The Commission then proceeded and gym contracts, identifying potentially unfair terms required or expressly permitted to undertake detailed reviews of and working with traders to amend or remove any terms by any enactment, and the standard form consumer con- of concern. • Is unfair in that it causes a “sig- tracts used across three industries With the gym contracts review released in August this nificant imbalance” between identified as having high potential year, the Commission has indicated that while it may the parties, is not reasonably for unfair terms and attendant ‘circle back’ to check that the sectors it has reviewed necessary to protect “legitimate consumer harm. These were the have amended their contracts as promised, it does not interests” of the party advan- telecommunications review – com- intend to conduct further industry reviews at this time. taged by the term and would pleted in February 2016, the energy Rather, the Commission appears to be poised, having cause “detriment if applied, retail review – completed in August issued guidance and made clear its views on the UCT enforced or relied on” (s 46L). 2016, and the gym sector review – provisions in the context of the three industry reviews, In determining whether a term is completed in August 2017. to move into an enforcement phase and is likely to be unfair, the court may take into account looking for the first test cases to generate precedent any matters it thinks relevant, but The Commission worked in this area. must take into account the extent closely with industry Accordingly, now is a good time to work with clients to which the term is “transparent” review participants to ensure that their standard form consumer contracts and the contract as a whole. The purpose of the reviews has been are compliant with the UCT provisions. The Act includes a list of 13 exam- to ensure, to the extent possible, ples of the kinds of terms that may that the standard form consumer The UCT provisions be unfair (referred to as the “grey contracts used in the affected New Zealand’s UCT provisions are based on similar list”) (s 46M). sectors comply with the new law. provisions in the Australian Consumer Law, enacted In addition, the resulting reports in 2010. Under the FTA, the Commission can, on its So far, the Commission’s provide guidance to other industries own initiative or when requested to do so, apply to the enforcement approach and their advisors as to the effect District Court or High Court for an order that a term in a has been educative of the UCT provisions, the types of standard form consumer contract is a UCT (section 46H). and collaborative terms that may be unfair and the Once a court has declared a term to be a UCT, it is To date, the Commission has taken steps that can be taken to remedy a breach of the FTA to include it in a standard form an educative and collaborative any potential unfairness. consumer contract or to apply, rely on or enforce it (s approach to enforcement of the The telecommunications and 26A), which can result in criminal fines of up to $600,000 UCT provisions. energy retail reviews were exten- for companies and $200,000 for individuals, or civil When the UCT provisions were sive in terms of market coverage proceedings and remedies. first introduced, the Commission (eg, the telecommunications review The courts can declare a term an UCT if it (s 46I): published “Unfair Contract Terms covered contracts from companies

28 LAWTALK 912 · November 2017 UPDATE · CONTRACTS

representing 94% of fixed line retail market and 100% We summarise some of these in the to the relevant traders, did not of mobile retail market) and resulted in detailed reports table below. We emphasise, how- take further enforcement action or showing the number and types of potentially unfair ever, that whether any term is a UCT initiate any test cases. While this is terms identified for each participating company. The will always depend on the relevant a positive outcome overall, it does gym sector review was less extensive and focused industry, the business of the specific mean that the application of the on contracts from 10 gym franchises and resulted in trader, the transparency of the term UCT provisions is yet to be tested a shorter report providing a general discussion of the and its place in the context of the by the courts. kinds of terms reviewed. specific contract in which it appears. In all three reviews the Commission followed the same The Commission appears process of reviewing contracts to identify potentially Review participants to be moving into unfair terms, then seeking comments from each par- amended or removed enforcement mode ticipating trader as to: potentially unfair It has now been over two years since • How the potentially unfair terms were reasonably terms and no further the UCT provisions came into force. necessary to protect the trader’s legitimate business enforcement action We expect the Commission is now interests, was required poised to consider taking enforce- • Whether those interests could be protected by alter- Through the review processes, all ment action, including by seeking native, fairer means, and participating traders addressed the UCT declarations in appropriate test • Whether there were any other matters the Commission Commission’s concerns by either cases. The Commission has issued should take into account. agreeing to remove or amend poten- guidance and made its views on the Traders’ feedback was then factored into the tially unfair terms, or satisfying the application of the UCT provisions Commission’s final views as to the terms it considered Commission that the terms in issue clear through its reports on the to be potentially unfair. are in fact reasonably necessary to industry reviews. Traders utilising protect the legitimate interests of the standard form consumer contracts The reviews identified a number of company (and therefore not “unfair” and their advisers ignore the learn- potentially unfair terms being used in the sense required by s 46L). ings of that work at their peril. across more than one industry The Commission was therefore From as early as 2015, the Com- There is a degree of overlap in the types of terms iden- able to close its investigations and mission had been signalling that it tified as potentially unfair across the three industries. beyond issuing compliance advice would carry out a UCT review of

Term Comments

Unilateral variation of price Such terms are particularly unfair in the context of fixed term contracts and in the absence of and/or terms*^ corresponding rights for consumers to cancel without paying early termination fees (ETFs). (telecommunications, energy Where a contract allows consumers to cancel without ETFs if the variation causes ‘material retail and gym sector) detriment’, the trader should not have the sole right to determine whether ‘material detriment’ has been caused.

Limiting or excluding liability^ Terms which limit or exclude liability of one party are imbalanced where there is no corre- (telecommunications, energy sponding limit or exclusion on the liability of the other. retail and gym sector)

Consequential loss Clauses of this nature may be unfair where they purport to or could be read as seeking to (telecommunications, energy remove the consumer’s remedies under the FTA and Consumer Guarantees Act 1993. retail and gym sector)

Automatic right of renewal^ These terms are likely to be considered unfair when they are accompanied by a requirement (energy retail) that the customer pay an ETF to exit the renewed contract.

Cancellation clauses Notice periods should not be longer than is necessary to protect the legitimate business (gym sector) interests of the trader. Cancellation processes should not be overly complex and time consuming for consumers.

Terms marked by an * are on the FTA grey list. Terms marked by an ^ have also identified as potentially unfair by the Australian Competition and Consumer Commission (ACCC).

29 CONTRACTS · UPDATE November 2017 · LAWTALK 912

UPDATE FRANCHISING Good Faith in franchising the credit sector. However, recent indications are that while the Commission may check in with the BY DEIRDRE their interaction takes place ‘off industries it has already reviewed WATSON the contract’ requiring a deliber- to ensure they have implemented ate measure of communication, agreed changes to their standard co-operation, and predictable perform consumer contracts, it will Instances of lack of good faith formance based on mutual trust not be conducting any new indus- by franchisors are a common and confidence. Expectations of try reviews in the near future. complaint made by franchisees. A loyalty and interdependence mark Instead, the Commission will be franchisee complains they are being the formation of the contract and reviewing for UCT on a business singled out for a breach notice proce- become the basis for the rational as usual basis, both in response to dure when other franchisees are also economic planning of the parties”. UCT complaints and in the con- in breach. A franchisor repeatedly text of investigations primarily declines prospective purchasers of The nature of a relating to other FTA and/or Credit a franchisee’s business because they franchise agreement Contracts and Consumer Finance want the franchisee to eventually The second key factor about fran- Act 2003 issues. We note that in walk away from the franchise so they chises is that agreements are drafted Australia, all major UCT cases can sell it themselves. A franchisee by franchisors. The ability to draft brought by the ACCC to date have unexpectedly faces fresh competi- the contract enables franchisors to involved UCT declarations being tion when their franchisor buys a cast their obligations in largely dis- sought in the context of addressing competing brand and opens a new cretionary terms and, conversely, the other consumer law issues such, as franchise right next door to them. franchisee’s role as largely non-nego- false or misleading representations To understand how readily tiable rock solid obligations, with no and unconscionable conduct (for these sometimes dreadfully unfair room for equivocation or discretion example ACCC v CLA Trading Pty Ltd sounding situations can arise and in terms of what the franchisee must [2016] FCA 377 and ACCC v Chrisco what can be done about them, it is do. It is a well-known feature of fran- Hampers Australia Limited [2015] necessary to understand, first, the chise agreements that they are top- FCA 1204). nature of the franchise relationship heavy on obligations for franchisees Apparently, there are ‘a number’ and, second, the characteristics of a and light on franchisor obligation. As of UCT investigations currently franchise agreement generally and such, a form of power imbalance can underway. Assuming one or more how it impacts that relationship. arise, particularly in a low barrier to of those leads to court action, we entry system where franchisees are may see judicial precedent in this The nature of the unsophisticated and do not take legal area in the next year or so. franchise relationship advice before buying their “business” In light of the above, we think Franchise agreements are “relational and where there is considerable con- now is a good time for clients contracts”. These were described trol exercised by the franchisor over wishing to avoid being the sub- in Bobux Marketing Ltd v Raynor the franchisee’s business. ject of a UCT test case to review Marketing Ltd [2002] 1 NZLR 506 (CA) (or re-review as the case may be), at [43] as long-term contracts which What does good their standard form consumer recognise the existence of an ongoing faith mean? contracts for compliance with the business relationship between the It is notoriously difficult to define UCT provisions. ▪ parties, the need to maintain that good faith. It was observed in Bobux relationship, the difficulty of reduc- at [41]: “The principle [of good faith] is Alisaundre van Ammers ing important terms to well defined already beset by agonising inquiries  alisaundre.vanammers@ obligations and the impossibility of into what is or can be meant by good minterellison.co.nz is a foretelling all the events which may faith. …. Good faith is closely associ- senior solicitor and Madison affect the contract. ated with notions of fairness, honesty Edilson  madison.edilson@ Thomas J said, in Bobux (at and reasonableness which are already minterellison.co.nz a solicitor [44]):“The parties are not ‘strangers’ well recognised in the law.” with MinterEllisonRuddWatts. in the accepted sense and much of Good faith is one of those

30 LAWTALK 912 · November 2017 UPDATE · FRANCHISING

expressions which is sometimes best defined and under- as the rule that “a contractual discre- there being an implied term of good stood in terms of what it is not. It has therefore been tion must not be exercised arbitrarily faith). Asher J said at [30]: described as the “antithesis of bad faith”. Specific conduct or in bad faith, or unreasonably in the “It would be surprising if a fran- has been identified by various courts as constituting bad sense that no reasonable contracting chisor or sub-franchisor such as faith or a lack of good faith including acting arbitrarily, party could have so acted.” Dorn Investments, controlling capriciously, unreasonably or recklessly. Leaving aside the vexed question the allocation of significant More esoterically, good faith has been characterised whether there is or should be an work as it did, could take away as “a general organising principle of the common law of implied obligation of good faith one-third of a contractor’s turn- contract”. Cromwell J, in Bhasin v Hrynew [2014] 3 SCR 494 in franchise agreements, there is over without at least giving the at [63], said that this organising principle is “simply that ample case law which supports the franchisee the opportunity to parties generally must perform their contractual duties principle that in the exercise of a rectify the complaint that was honestly and reasonably and not capriciously or arbitrarily”. contractual power a party cannot the basis for the removal.” Good faith involves having appropriate regard to the act in bad faith. In his article, Kós The case is a good example of the legitimate interests of the contracting partner. While J explains that with contractual types of incredibly unfair scenarios that “appropriate regard” will vary depending on the powers must come constraint: “oth- some franchisees face where fran- context of the particular contract, it does not require a erwise the powers would instead chisors are exercising a contractual party to subordinate its own interests to the other’s in become mechanisms for oppression discretion of a right of enforcement. all cases. Rather, it requires that a party must not seek and neither efficient nor acceptable This seems to be especially so in the to undermine those interests in bad faith. in a common law jurisdiction.” homes services sector, where barri- Anecdotally, good faith has sometimes been categorised Whilst not the subject of extensive ers to entry are low and the inequal- as something hard to describe but immediately recognisa- consideration in New Zealand, New ity of bargaining power is perhaps ble once it comes along. This is the “know it when you see Zealand cases have directly referred more acutely felt, particularly since it” test. Specifically, in the franchising space, lack of good to the Kós J article as correctly stat- franchisees do not seek legal advice faith will often present as a situation which appears grossly ing the law in New Zealand. and the opportunity to negotiate is unfair or which smacks of a stronger party seeking to take Cases where the default rule has really only a theoretical one. advantage of a contractual right to usurp the interests of been invoked specifically in the the weaker party, for some ulterior purpose. franchising area in New Zealand are Conclusion few on the ground, but the principle Many complaints by franchisees Good faith in franchising generally was at play in a recent High Court against their franchisors fall into Occasionally, but not often, franchise agreements contain case on an application for an interim the category of complaints around an express obligation of good faith. Even less occasion- injunction to restrain a franchisee the exercise of such power and ally, and almost counter-intuitively, such obligations will from trading in breach of a restraint rights. Most will not, of course, sometimes provide that the obligation of good faith is of trade clause, Dorn Investments Ltd find their way to the courts owed by the franchisee to the franchisor, not as mutual v Hoover [2016] NZHC 1325. because franchisees rarely have obligations and not the other way around. The agreement had come to an the money to fund such litigation. In Australia, all franchise agreements are subject to end, following the franchisor taking a Notwithstanding there is no general an obligation of good faith, courtesy of the Australian sizeable amount of work away from obligation of good faith implied in Franchising Code of Conduct that franchisors must the franchisee, something it was franchise agreements generally, adhere to. contractually entitled to do without there clearly are good faith con- There is no franchise-specific legislation in New giving the franchisee the opportunity straints around the exercise of Zealand. The question of whether franchise agreements to first rectify or remedy any default contractual powers and rights. generally are subject to an implied obligation of good in the franchisee’s performance. Otherwise franchisors could act faith has been left open by the Privy Council in Dymocks The franchisee alleged that, pro- heavy handedly and arbitrarily. The Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 NZLR 289. cedurally, the process of removing decision in Dorn Investments Ltd v Thus, as the law stands in New Zealand, there is no that work was carried out unfairly Hoover is a welcome illustration implied obligation of good faith generally in franchise to him, even although there was no of the dangers franchisors face in agreements. contractual requirement of proce- acting in a grossly unfair manner. ▪ dural fairness. Good faith in the exercise of In declining the injunction, Asher J Deirdre Watson  deidre.a.watson a contractual power? noted that there was no express term @xtra.co.nz is a barrister, special- All is not lost for franchisees who experience what in the franchise agreement requiring ising in franchising disputes. She appear to be instances of bad faith at the hands of their the franchisor not to take any work regularly presents on franchise franchisors, acting pursuant to the seemingly unbridled away from a franchisee, or to follow a issues, appears and acts regularly powers conferred on them by their franchise agreements. certain process before any such work as counsel in franchising disputes, Franchisees in this situation can draw on the “default is taken away. In his view however, lectures at Auckland University in rule” that applies in the exercise of contractual powers. The it was seriously arguable that there franchising and is a board member default rule is explained by Kós J, in his article “Constraints could be an implied term in the fran- of the New Zealand Franchise on the Exercise of Contractual Powers” (2011) 42 VUWLR 17, chise agreement to that effect (akin to Association.

31 WILLS · UPDATE November 2017 · LAWTALK 912

UPDATE WILLS If it looks like a will, there’s a way

BY MCKENZIE ROGERS

satisfied, the court may declare a soundness of mind, but the most notable difference was Lawyers know that wills must document to be a valid will. The that the former application was opposed, whereas all comply with strict formalities in power to validate is discretionary, parties consented to the latter. order to be valid. However, the but the court is unlikely to decline Another common consideration in s 14 applications is introduction of s 14 of the Wills Act to validate a will because of an the time that has elapsed since a will was drafted. Where 2007 has precipitated an upheaval ulterior purpose. For example, in a will is drafted but never signed, the court must be of this well-established protocol. Balchin v Hall [2016] NZHC 837, the satisfied that the will represents the testator’s intentions Section 14 allows the High Court two sons of the deceased opposed and that the testator did not delay signing because they to declare a will to be valid where the validation of their father’s will had changed their mind. This was circumstance inRe it does not comply with the formali- because they claimed a breach of Estate of Bishop [2014] NZHC 3355 where a different reason ties prescribed in s 11 of the Act, but moral duty and intended to bring a for the delay was found. In Re Estate of Uruamo [2017] only if the court is satisfied that the claim against the estate if the docu- NZHC 931, Simon France J found that the testatrix simply document expresses the deceased ment was validated. The court found did not realise that the will required her signature. Her person’s testamentary intentions. that s 14 is focused on whether the husband was also unaware that he needed to sign his The preponderance of unopposed document expresses the deceased’s will, and they both believed that the wills as provided cases brought over the past 10 years intentions, and a possible estate to them by their lawyers were appropriately executed. suggests that the section is being claim was not a sufficient reason Her unsigned will was validated seven years after being applied pragmatically to achieve its to decline to validate an otherwise drafted. remedial objective. eligible will. Section 14 is usually applied so that common sense Section 11 of the Wills Act pro- A similar question was raised may prevail, for example, when a document is signed vides that in order for a will to be in Fitzgibbons v Fitzmaurice [2014] and witnessed but with only one witness. This hap- valid, it must be in writing, signed NZHC 710 where the capacity of pened in Re Estate of Jameson [2017] NZHC 403 and Re by the testator, and this signature the testator was in issue. The court Estate of White [2017] NZHC 220 and in both cases the must have been completed in the found that a suicide note was not wills fell short of s 11. In both cases, however, the wills presence of two witnesses. Section a valid will because the deceased were validated. 14 is a two-step process to validate a was not of sound mind at the time The vast majority of the cases brought unders 14 have non-compliant will. It must first be of his death. However, in Re Estate been validating unwitnessed wills, or wills prepared by shown that a document in existence of Murphy [2014] NZHC 548 a suicide solicitors but never signed. This has extended to elec- appears to be a will and does not note was declared a valid will. In the tronic draft wills as in Blackwell v Hollings [2014] NZHC comply with s 11. Once this first step latter case the court took a different 667. In H v P [2012] NZHC 753, the court considered that is met, the court has jurisdiction to focus to testamentary capacity and a text message, email, blog, film, video, microfiche or consider whether the document CD on which writing appeared could all be considered expresses the deceased person’s a ‘document’ for the purpose of s 14. testamentary intentions. Re Estate The court found The wide discretion of s 14 has allowed the court to of Hickford HC Napier CIV-2009-441- that s 14 is focused take a pragmatic approach to validation of otherwise 369, 31 August 2009 established that on whether the invalid wills. While the large number of unopposed the civil standard of proof applies. document expresses cases indicates that the remedial objective of the Justice MacKenzie later observed in the deceased’s section is being fulfilled, the limits of the section’s Re Estate of Campbell [2014] NZHC intentions, and a application are yet to be clearly defined. In the mean- 1632 that the balance of probabilities possible estate time, where there’s a document that appears to be a is applied flexibly across a broad claim was not a will, there’s a way. ▪ range of civil cases, and that it forms sufficient reason to an appropriately low threshold in decline to validate McKenzie Rogers  [email protected] is a lawyer s 14 cases. an otherwise at the specialist family law firm McWilliam Rennie If those two elements are eligible will. Lawyers.

32 LAWTALK 912 · November 2017 MEDIATION

MEDIATION Changing the way we argue Part 2 – Why go to war?

BY PAUL back out of. Staying flexible and open longer results in SILLS more authentic engagement and an agile strength that can adapt efficiently. Why does The current paradigm for dis- litigation remain Admitting we are wrong pute resolution is litigation – a our go-to option Part of the reason we favour the war model when we rights-based adversarial model for the resolution argue is that, while we know that human beings are that reflects an "argument-as-war" of disputes? fallible, we are loathe to admit we are wrong. So, arguing metaphor. This paradigm has its How does it this way can be a form of self-preservation to avoid origins in Greek philosophy, which cater for cultural admitting any fault. introduced a focus on critical anal- differences, Arguing can be a very positive form of connection and ysis and deductive reasoning. That needs, interests, communication, but it requires a shift in paradigm, as is, the process of applying logical emotions, feelings well as good arguers to keep it that way. A good arguer principles to given premises or gen- and changes in in this sense might view themselves as both the arguer eral facts to derive a specific fact. society? What and the audience. In doing so they can “observe” their Why does litigation remain our happens to our own argument and determine whether it is a "good" go-to option for the resolution of arguments when argument or not. If it is – from an objective perspective disputes? How does it cater for we adopt this – then they are heading in the right direction. cultural differences, needs, interests, model? On average about 92% of all commercial cases settle emotions, feelings and changes in before trial. In turn, these cases represent only a small society? What happens to our argu- other party rather than the merits portion of all commercial disputes: the balance are either ments when we adopt this model? of what they are saying, not prosecuted or are resolved by way of negotiated We recognise three primary • Prevent or block opportunities for outcome. So why hold on to the adversarial model and models for arguments, according discussion, negotiation, collabora- not focus on the skills needed to resolve disputes by way to philosopher Daniel Cohen: the tion or even compromise. of negotiation, facilitation and mediation? arguments-as-war metaphor, What does “winning an argument” The legal profession would do well to see what took arguments as proofs (eg, mathe- actually mean in the context of place in two other professions when the interests of the matical equations), and arguments litigation and arguments-as-war? supplying profession were favoured over the customers’ as performances (politicians giving Going to war over disputes does not interests for too long in a world where everyone has a speech, lawyers talking to a jury, advance society in any meaningful access to new ideas and like-minded customers via the debates). way, and means that the person internet. The arguments-as-war model who is willing to make a cogni- Notably, the medical profession held on for too long dominates both the legal system tive shift and to learn something to the “sickness” approach. While they largely weren’t and our interactions in everyday life. is deemed to be the loser of the noticing, the “wellness” industry worth billions of dollars In a militaristic sense, this model argument. That is, I learn some- sprang up. Likewise, the accounting profession, broadly encourages strong arguments with thing if you are able to persuade stated, held on to the “compliance” approach while the a lot of punch. me to see things differently, such mentoring, coaching and advice business based on By treating arguments as akin to that I change my mind or my belief positivity diverted billions of dollars in revenue to itself. war, we distort the conversation system. But when we reference Whether you believe in vitamins or life coaches is and: my change of thinking back to irrelevant. Consumers voted with their wallets to the • Elevate tactics over substance, the argument, I am the loser. On financial detriment of the Luddites. Similarly, consum- • Magnify differences, making it the other hand, the “winner” has ers are increasingly turning away from litigation and “us-versus-them”, not gained anything in a cognitive the arguments-as-war model toward more empowering • Focus only on the negative, sense by convincing me of his or and effective methods of dispute resolution.▪ • Provide for only one outcome: her beliefs. victory or defeat, Strong arguments result in people Paul Sills  [email protected] is an Auckland • Personalise the argument by taking strong positions early, which barrister who specialises in commercial and civil focusing on the behaviour of the then feel difficult (humiliating) to litigation. He is also an experienced mediator.

33 IN-HOUSE

IN-HOUSE The GPs of the Legal World In-house lawyers

BY SIAN WINGATE

An in-house lawyer is sometimes referred to as the ‘GP of the legal world’. It’s true that there are a number of similarities. Like GPs, we triage a number of different matters in any given day. Similarly, we have to analyse whether we can give an answer straight away or whether we need to refer it on for specialist advice. the legal query whether in person, over the phone or However, a key difference is that whereas a GP has a video conference. dedicated 15-minute appointment slot to listen to the patient, ask more questions and get the history before Investing time in learning your deciding on a response, in-house lawyers are less likely business is investing time in your to have this. professional development The external and obvious reasons for this are varied. A GP spends, on average, around a decade training to Time pressures to get through workload, working from be a doctor and specialising as a GP before they are a different office location or an over-reliance on email permitted to see patients without direct supervision. to exchange information are some examples of why It’s a fair assumption that an in-house lawyer needs picking up the phone or arranging a face-to-face to invest some meaningful time in learning their craft meeting may be the exception rather than the norm. too. Colleagues probably expect you to understand your company’s core business so that you can tailor your Permission to spend time legal or commercial input accordingly. with colleagues Most of us don’t have a decade to learn the nuances of I wonder though, if there is also an unconscious bias the myriad of functions throughout our workplace. So that suggests that permission is somehow not implicitly we need to learn on the job, learn quickly and manage given to us to dig deeper, ask more questions or spend our workload at the same time. time with a colleague. It may be seen as time-wasting, That workload should include giving yourself per- and not ‘real’ lawyering? mission to use your working time to develop your I am sure that many other in-house lawyers have knowledge of your business by meeting and speaking shared the experience of confidently replying to an with colleagues. email, perhaps drafting a document in response, pressing send and feeling satisfied that another work matter has Relationship management for been ticked off the (usually long) list. Offering a solution the in-house legal function together with an output are often our pre-programmed A way to achieve this is a relationship management measures of success, especially if you started out in approach. private practice. At my workplace, our general counsel actively encour- I am also confident that many, like me, have had a ages her team to allow time to chat with colleagues. This follow-up chat which revealed that the email didn’t may seem to be a tall order when we have 350 such col- quite communicate what the colleague really needed, leagues spread across five offices. Some tried and tested the document didn’t quite hit the right note and the work examples we use are: matter now needs to be re-visited or worse, begun again. • Taking the time to travel to other offices if you are Just like the GP, there is a benefit in allocating pro- multi-location: Seeing the in-house lawyer in person tected time with a colleague or a team to chat through can de-mystify our role and humanise us.

34 • Hosting clinics at offices when • Encouraging your colleagues to know what your colleagues truly want. visiting: We let our colleagues to call you first and email you • Delivering training workshops with colleagues on know when we will be in town second: The chat to walk through how to instruct you, what information you need and and we book out protected time their query can result in its con- what you do not: It is not intuitive for non-lawyers at their office without meetings. clusion quite often. to know what level of detail to offer. We encourage walk-ups or pre- • Asking if you can attend another booked slots if that’s what our business unit’s team meeting The lessons we can learn from the GP colleagues need. or strategy day: This offers an Just as a GP relies on a solid background of medical • Adopting a relationship man- insight into what your colleagues training to support their assessment of a treatment plan agement approach: For high- have as their upcoming focus and for a patient, the in-house lawyer relies on their inst use business units who need work out if you need to partner itutional knowledge of their business and colleagues frequent legal assistance, we are with them. to assess the legal input required of them. each allocated a key contact for • Asking your colleagues what Giving yourself or your legal team permission to share that team. For a team of three they want from you: It’s tempting time with colleagues is the cornerstone of obtaining this lawyers with 15 business units, to offer a buffet of services that knowledge and understanding. ▪ this is manageable. The benefit of ‘legal’ performs. However, our this is a deep knowledge of that community of in-house lawyer- Sian Wingate is a corporate lawyer at Powerco Ltd team’s core function which results ing is evolving into a consultancy and a committee member of the In-house Lawyers in quicker responses to their legal type service and so it’s important Section of the NZ Law Society (ILANZ) and commercial needs. • Having a wander around your own office for a chat: The ‘water cooler’ approach is a great way to find out what is happening or for a colleague to ask a quick sense check. • Giving yourself permission not to look at your email for a blocked part of the day or week: Email is useful, there’s no denying that. However, the cautionary tale mentioned above can be avoided if email becomes a part of your day to day activities, rather than the driver of them.

35 IN-HOUSE November 2017 · LAWTALK 912

36 LAWTALK 912 · November 2017 IN-HOUSE

IN-HOUSE

in the more than 800 lawyers Collaborative, employed across the Crown and we want to position the Government Legal Network as an employer of Indispensable choice for New Zealand’s best lawyers. Most importantly, we need to ask ourselves: Are we focusing on Legal Service the right things? Are we bringing our expertise to bear by delivering, to the Crown, the trusted and bespoke A strategy for Crown Law value a large network of in-house lawyers can offer?

BY KATHERINE Collaborative, LANCASTER Indispensable Legal Service The Crown Law Leadership Team is Una Jagose QC, Solicitor-General and Chief Executive of unanimous in its vision of Crown Crown Law, talks with Katherine Lancaster, Senior Advisor Law as a provider of collaborative, indispensable legal service. The Government Legal Network, about her ambitious vision concept of being Kaitiaki of the for the stewardship of Crown legal service. rule of law – stewards and system leaders – underpins three core outcomes: demonstrably better government decisions; strengthened Law addresses some of the most influence of the rule of law; and There is an old German proverb: what is the use complex legal issues confronting improved criminal justice. of running if you’re not on the right road? The phrase government and society, it is not These objectives have not devel- has close relations in the phrases dance to your own an office of scholarly mystique. Its oped in isolation. The Leadership tune and before you climb the ladder, make sure you value lies in understanding that Team has recently worked with the have it up against the right wall. No doubt, we have quality legal service is provided State Services Commission to under- the ‘90s explosion of corporate strategy and self-help at the right time, is relevant to its take a Performance Improvement movements to thank for establishing motivational recipients and is influential. Una’s Framework (PIF) review. Although missives as stalwarts in the goal-setting arsenal. approach to leadership across the the strategy refresh preceded the So ingrained, now, are these concepts that strategy government legal profession is review, the PIF results provide a fatigue has crept in. We can become so caught up in pragmatic and collegial, and she is helpful litmus test – affirming the strategising that we risk forgetting strategy is, after all, clear that discharging the burden drive for strengthened, collabora- a story. More than values-statements crammed into an and privilege of legal service to the tive legal service and endorsing A3 infographic, and more than a grand vision in a glossy Crown requires a strong sense of the existing standards of technical accountability document, strategy is what we do every service to New Zealand: excellence and client service. “The day and needs a narrative about people, their purpose and “We’ve been asking ourselves PIF provided an excellent opportu- their contribution. Strategy is a living, evolving, simple recently ‘What is the Crown Law nity to articulate our performance yet complex thing – and getting it right really matters. New Zealand needs’?” And how do challenges in reaching our vision and Una Jagose QC, Solicitor-General and Chief Executive we, as lawyers within and for the the three core outcomes that capture of Crown Law, knows this. Nearly two years into her Crown, ensure the Government the essence of why we are here.” role as junior Law Officer, I talked with her about the delivers its objectives in a trusted Crown Law champions a dynamic challenge of setting and achieving an ambitious strategy and accountable way while main- form of lawyering to unleash the full for Crown Law. taining rule of law obligations? potential of the Government Legal Before we proceed into dialogue, it’s worth addressing How do we assist New Zealanders Network (GLN or the ‘Network’). context and – perhaps – a few assumptions. Crown Law to appreciate that successive gov- Una favours early partnership has always held a unique role within the public service. ernments have legitimacy to govern with lawyers and decision makers Through the constitutional role of the Solicitor-General, because we are a democracy com- across the Crown in order to identify counsel at Crown Law oversee public prosecutions, con- mitted to the rule of law? We need to and provide access to the full suite duct criminal appeals, provide authoritative advice to make sure the Government receives of capabilities the Network can the Crown and represent it in the Courts. While Crown the best value from its investment offer. Her views on Crown Law’s

37 IN-HOUSE

leadership role within the system are well-formed and ambitious. It’s inspiring to talk them through.

Crown Law has identified demonstrably better government decisions as an important outcome. How will you achieve this? We exist in order to assist govern- ments to implement their policy choices, lawfully. That concept is at the very heart of this outcome. Traditionally, issues crystallise to a certain threshold of legal risk before being escalated to lawyers, or to Crown Law. We are starting – as a Network – to query whether this model of working is the best use of resource and expertise or whether it should operate in tandem with a more flexible approach. We will still need to be available as remedial resource but I believe there is scope for us to confront the traditional model of lawyering and move from my responsibility to ensure lawyers design and better decision making, when a rule of law awaiting instruction to front-footing across the Crown have the processes and/or criminal justice focus is necessary. Our value both opportunity and risk. and relationships in place to ensure is nuanced and the type of lawyer Crown Law needs The perspective a lawyer can we are working on the right things has technical acumen, contextual awareness and the bring, in identifying options and at the right time and that we have credibility required for trusted relationships. mitigating risk, is often of most credible influence to wield when we value when accessed early. We can do it. This will mean a more confi- It follows that if you’re driving an aspirational support ambitious policies to be dent promotion, to Chief Executives programme, you will need the support implemented lawfully, resulting in and other leaders, of the lawyer as of all staff within Crown Law. Are they less successful legal challenge to the a partner of transformational value. actively involved in setting objectives? Crown and – ultimately – a stronger Yes, absolutely. The Crown Law Leadership Team has democracy. The Government Legal These are big ambitions that invited discussion, with staff from across the office Network, as a whole, is an expert challenge how Crown Law and the broader Government Legal Network, on our resource at the fingertips of depart- focuses its expertise and input. current way of delivering legal service and the options ments, agencies and Ministers Is it reasonable to presume a that would position that service as collaborative and and lawyers need to be sought as heightened focus on advisory indispensable. We have deliberately taken a blank canvas valued partners at the centre of services could result in less approach in order to encourage brave suggestions and decision making. As Head of the litigation for the Crown and both the Office and the Network have obliged by coming Government Legal Profession, it is therefore a change in the type up with terrific ideas. Those ideas range from a clear set of lawyer Crown Law needs? of collaborative principles to influence the way lawyers Yes, that is certainly possible. But work together within Crown Law, and across the Crown; there will always be challenges to to a more concerted engagement with the Government the Crown in our Courts and tribu- Legal Network at a day-to-day level through practice The Government nals and, as a result, there will be groups and secondment opportunities; to the introduc- Legal Network, always be a place for expert litigators tion of periodic hot-desking by Crown Law counsel to as a whole, is an with a deep understanding of the enhance Crown Law’s wider access and visibility. These expert resource Crown’s obligations, and long term are simply concepts on the table and we may not pursue at the fingertips interests, as well as an awareness of them all. But, as a leader, it’s exciting and humbling to of departments, the immediate government context. see such a commitment to having the conversations, agencies and But, also, litigation we are involved and implementing the results, that bring our vision and Ministers and lawyers in helps us to be better advisors outcomes to life. need to be sought because we can see trends in the as valued partners law and in how Courts scrutinise Improved criminal justice is another at the centre of Executive action. We can then lend significant outcome for Crown Law. What decision making. this insight to improved policy do you see as new and ambitious in Crown

38 LAWTALK 912 · November 2017 IN-HOUSE

Law’s role in advancing the quality and Seeing repeated cultural supported by values of honesty, consistency of Crown prosecutions? disconnect and over- integrity and bravery. At Crown Law, The network of Crown Solicitors, who undertake criminal representation of Māori ‘nice’ recognises high performance, prosecutions of a significant nature on behalf of the Crown, and Pasifika communities uplifts others by providing develop- is a real asset in the exercise of transparent and account- in the criminal justice ment opportunities and celebrates able criminal justice in New Zealand. Firms supporting system can take a positive contributions. ‘Nice’ also Crown Solicitors implemented a new funding model with tangible toll on our determines how we operate in dif- pragmatism and we are seeing tangible benefits from lawyers. We need to find ficult circumstances when we need increased reporting and collaboration across the Crown a way of addressing this to be tenacious in holding ourselves Solicitor Network (CSN). Our role is to continue to provide meaningfully and we and others accountable to rigorous guidance and support and to enable the CSN to leverage need to work collectively standards. In these situations, it the positive effects of a more networked approach – for to progress diversity in means approaching challenging example, by sharing resources and providing secondment the justice system as a conversations with firmness, preci- opportunities across Crown Solicitor firms. whole. sion and compassion. The principle I also acknowledge the valuable role Crown Solicitors of ‘nice’ is important to us because assume in addressing best practice challenges. Alongside decisions and laws, as we all know, peers across the wider legal profession, they have identi- You have said leadership are made by people for people. fied a specific need to create an environment where Māori is about service and that We have come full circle in the and Pasifika lawyers are attracted to and supported in a core component of your narrative. Strategy – the grand prosecutorial careers. As a professional cohort working for approach is being nice. vision and how it is achieved – is for the Crown, we should reflect the public we serve. But you What does ‘nice’ entail? people, about people and by people. will appreciate that seeing repeated cultural disconnect I believe in people-centric leadership We opened with one quote and it and over-representation of Māori and Pasifika commu- and it’s true I place a great deal of seems fitting to close with another, nities in the criminal justice system can take a tangible emphasis on ‘nice’. It’s important to much closer to home: Ehara taku toll on our lawyers. We need to find a way of addressing realise that my version of ‘nice’ isn’t noa i te toa takitahi, engari he toa this meaningfully and we need to work collectively to twee and it isn’t soft. It’s a simple takitini – my strength is not mine progress diversity in the justice system as a whole. This and relatable way of being that alone but the strength of many. is just one example where the leadership provided by allows me to exercise the courage Crown Law’s story of stewardship the CSN can deliver a significant benefit to New Zealand. and strength I need to do my job in has been shared by many within the a way that builds connection and Office and across government for Does your focus on improved criminal justice strong working relationships. For me, circa 140 years. By building on this extend to public prosecutions undertaken ‘nice’ means that, as Chief Executive proud history and the legacy of all in-house by departments and agencies? and Solicitor-General, I care for the those that have gone before, by rec- It does. Crown Law, through its Public Prosecutions Unit people and responsibilities under my ognising the challenges that shape (PPU) has undertaken superb work with departments stewardship. It means I will always today and by inspiring lawyers to be and agencies with a prosecution function, establishing feel the weight of my responsibilities better in and for the future, Crown regular data reporting and refining prosecution policies. and I am committed to maintaining Law’s strategy is one of success. ▪ These are the foundations required for ongoing consist- a fair, safe and positive workplace ency in the efficacy and efficiency of public prosecutions. We can now focus on the practical tools and processes required to ensure that consistency occurs. About the Government Legal Network Much of what we have talked about thus far relates to the intra-Crown story. Does The Government Legal Network (GLN) is a collaboration between your ambitious future envisage stronger Chief Legal Advisors, in departments and agencies, and the Principal engagement with our private sector partners? Law Officers. The GLN provides a lever for collaboration with 17 Without a doubt, collaboration beyond public service practice groups, covering every area of law and leadership in which borders will remain of vital importance over the coming the Crown has a major interest. Each group brings together lawyers years – particularly as the profession embraces advances from diverse departments and agencies to hold roundtable risk in technology, artificial intelligence and flexible working. discussions, formal seminar programmes and to facilitate wider I have always been clear that, when it is in the Crown’s professional development opportunities. best interests to do so, the support and expertise of The Network also takes a practical role in supporting the Attorney- external colleagues should be sought. We are part of one General and Solicitor-General in their oversight of Crown Legal Risk. profession and the complexity of modern government Chief Legal Advisors in departments and agencies regularly report on means public-private collaboration is a norm. There is legal risk and a Chief Legal Advisors Forum and GLN Advisory Board much for both government and private sectors to learn provide safe fora for professional exchange at the executive level. from these exchanges and better, smarter, cooperation The Public Prosecutions Unit has a similar function, supporting benefits the legal profession as a whole. Where it is the Solicitor-General’s oversight of the quality and efficiency of fruitful and efficient to do so, we should be looking Crown and public prosecutions. Leadership in this area brings us beyond in-house, and beyond Crown Law. to the next objective for discussion.

39 PRO-BONO November 2017 · LAWTALK 912

PRO-BONO Global links aid firm’s local work

BY CRAIG STEPHEN

Law giant DLA Piper has connections in most parts of the globe, which is extremely handy when it comes to arranging pro bono projects in New Zealand. The firm describes itself as “one of the largest providers in the world” of pro bono services, with 270,000 hours donated during 2016. ▴ Adam Holloway Adam Holloway, who is a partner in the Wellington office and the supervisor of the branch’s pro bono work, says one of the available right now. What’s important is that advantages of being part of a global company is that there are we are able to resource it with the same employees in other countries whose job is purely to arrange and amount of commitment that we would coordinate pro bono work. with someone who’s paying a bill at the This external work will have been vetted and approved before end of the month. We don’t want to say it comes into Mr Holloway’s office. yes to things and not have the right skills Among these is a major project, in partnership with UNICEF, or the right people available on the ground. in support of justice for vulnerable children around the world, Sometimes we turn things down because particularly Bangladesh. we can’t do it at the time, and sometimes Mr Holloway says the Wellington office alone provided 1,233 pro we turn projects down because it’s all going bono hours for the year to June 2017, with each lawyer carrying to the same team.” out an average of 30 hours a year. DLA Piper’s commercial team works “We have adopted a policy globally that we would like all of closely with the Fred Hollows Foundation, our lawyers to do 35 hours each annually of pro bono work. We which helps improves sight to people in encourage our lawyers to grasp the opportunities available to the developing world. Its property team them. Pro bono is an important part of the profession of law, and has carried out conveyancing work for it’s important to the firm and great for the staff. homes provider Habitat for Humanity and “In New Zealand we are coming a bit under the target, at 30 the litigation team is currently working on hours each, but it is tracking in the right family reunification work for the Refugee direction,” he says. Immigration Legal Advice Service (RILAS). Mr Holloway says there are various “The most valuable work is where our pro bono opportunities available; some It can staff have the opportunity to see the good present themselves easily but some need sometimes that they are contributing to. That can be to be sought out. feel like very productive, for example, Habitat for “It can sometimes feel like feast or feast or Humanity where we’ve been able to go, at famine, and sometimes we need to hunt famine, and the end of the project, and be part of the out opportunities because the spread of pro sometimes celebrations when a family walks into their bono work that we have available doesn’t we need to new home,” says Mr Holloway. touch all of the right teams evenly. There hunt out “The Wellington office is getting a similar can sometimes be a weighting towards a opportunities buzz out of the family reunification work, particular team that has more pro bono because the because they’re working with people to work than it could possibly do, but other spread of pro reunite with their family members from teams might not necessarily have the right bono work their original country.” skills to assist with that work. that we have DLA Piper’s pro bono clients in “Broadly speaking we have themes we available New Zealand include the Starship want to focus on. We say ‘is this pro bono, doesn’t touch Foundation, CanTeen, Auckland City do we have the right skills, and do we have all of the right Mission, Community Law centres, and the right capacity’; for example, is someone teams evenly. the Gynaecological Cancer Foundation. ▪

40 LAWTALK 912 · November 2017 AML/CFT

AML/CFT

looking at avenues to integrate your involvement in Get ready for the movement of their funds; even when it does not make sense. • Assets are purchased with minimal due diligence by the change the customer or their intermediaries. • Purchase prices or financial remuneration for intermediaries are illogical. BY DAMON • The customer informs you that funds are coming from HERBERT one source and at the last minute the source changes. The New Zealand Law Society has produced further guidance on potential red flags (Practice Briefing:Preparing In case you missed it, the first phase of Anti-Money for becoming a reporting entity under the AML/CFT Act, Laundering and Countering Financing of Terrorism Act updated June 2017). (AML/CFT) legislation came into force for banks, casinos and other key financial institutions back in 2013. Phase AML/CFT: what are the basics? 2 will come into force in July 2018 for other sectors that The purpose of AML/CFT is to detect and deter money deal in large amounts of financial transactions; of which laundering and financing of activities that are considered lawyers and conveyancers are the first cabs off the rank. undesirable by society (crime, terrorism, etc) to ensure Here is a summary of the legislation and what it means the New Zealand public, and the global financial system, for lawyers and conveyancers. can have confidence and trust in our financial system. AML/CFT adopts a ‘three lines of defence’ model. Money laundering 101 It enlists people who are directly involved in large The objective of money laundering is simple; to convert amounts of financial transactions as its first line of illegal funds into clean funds. defence. The first line of defence is tasked with having This is done in three stages: processes and controls in place that will identify poten- 1 Placement: Where illegal funds are ‘placed’ through tial instances of money laundering for escalation to the various entities that deal financial transactions. second line of defence. 2 Layering: These entities break up these illegal funds The second line of defence (a number of intelligence even further by entering into various transactions that and enforcement units) focus on monitoring and ultimately create confusion and masks the identity managing money laundering at a more specific and of the illegal funds. holistic level. From a first line of defence perspective; 3 Integration: The output of the various transactions this involves conducting investigations and bringing (assets, transfers, etc.) re-enters the mainstream econ- enforcement actions against money launderers and omy with the appearance of being legitimate funds. those whom assist them. Money launderers prefer the following situations: The third line of defence is the regulatory supervisor • Transactions that favour anonymity; as they cloud who manages the overall AML/CFT the ownership of the funds and tend to be overly framework in the market. From a complex in nature. first line of defence perspective, this • Transactions that involve countries with lower com- The purpose of includes supervising, offering tech- pliance hurdles, higher bribery and corruption ratings, AML/CFT is to nical support/guidance and making and a variety of free-flowing monetary channels detect and deter improvements to the framework. (either via legal or illegal markets). money laundering The first line of defence must • They tend to move funds through countries that have and financing of comply with the following: limited or agile barriers around the creation of entities, activities that • Have a designated AML/CFT where entity ownership is easily transferred or the legal are considered compliance officer who is vetted basis of entities can be changed with relative ease. undesirable by alongside senior management. Other red flags include: society (crime, • Establish and maintain an assess- • Unusual transactions eg, either via their structure, terrorism, etc) to ment of its AML/CFT risks. pattern of money flows, use/involvement of unnec- ensure the New • Establish and maintain policies, essary third parties or relationships, etc. Zealand public, and processes, controls and proce- • Unexplained wealth. the global financial dures to be codified into an AML/ • Customers with a pattern of hurrying transactions. system, can CFT programme. This includes • Use of intermediaries that are guarded about the have confidence maintenance of AML/CFT records. customer’s funds and endeavours. and trust in our • Conduct verification due diligence • The customer or their intermediaries are always financial system. on customers and their source of

41 AML/CFT November 2017 · LAWTALK 912

funds. This includes realising when enhanced due At the end of spells out to all stakeholders what diligence must occur, and identifying and conducting the day, the is considered acceptable conduct in due diligence on politically exposed people. acceptable your firm. • Conduct ongoing monitoring of customer accounts risk is For larger firms, understanding e.g. identifying changes or establishing patterns that called your and defining your risk appetite and prompt red flags. ‘residual risk’. culture, may involve codification • Ensure all staff are AML/CFT aware and trained. Ultimately and workshops. For smaller firms, • Undergo an independent audit of your risk assessment you are this may involve an open and frank and AML/CFT programme. balancing risk discussion between partners. For • Conduct prescribed transaction reporting and escalate to reward to one-partner/director firms, this potential concerns of money laundering to financial cost. may involve a serious and frank crime intelligence authorities. contemplation. • Submit annual reporting to the supervisor and The best yardstick for this is your undergo supervisor queries/reviews. past decisions, issues and com- The NZLS Practice Briefing: Preparing for becoming a plaints; even if they have nothing reporting entity under the AML/CFT Act, defines what sort to do with AML/CFT whatsoever. of transactions/services fall within scope for lawyers Your past behaviour and decisions and conveyancers under AML/CFT. are most likely to be your future In general, there are three distinctive categories: behaviour and decisions. 1 They would be firmly captured by AML/CFT (convey- Before starting your risk assess- ancing, the bulk of commercial matters, trusts and ment read the AML/CFT guidelines estates, etc), or and understand which of your 2 They may fall within the scope of AML/CFT depending services are likely to fall in scope. on the individual firm’s internal processes and scope When beginning your risk assessment first of all iden- of customer service, or tify the risk involved if you had no policies, processes, 3 They will commonly fall out of scope in terms of controls or procedures in place; this is termed ‘inherent AML/CFT. However, due to bespoke circumstances risk’. To reduce your inherent risk you do the following: associated with an individual transaction they could • Reduce it – Add in policies, processes, controls and fall within scope – litigation activity where customer procedures (this increases costs), funds are being held in the trust account as security • Avoid it – Change plans or your business strategy to for costs, or upon settling a case there are unusual/ sidestep the problem (this potentially limits rewards), extended payment arrangements • Transfer it – Outsource the risk (this increases costs), or (New Zealand Law Society, LawTalk 908, “Five things • Accept it – It is necessary for doing business (if the you can do now to prepare for the introduction of AML/ risk eventuates, the costs would be sudden and likely CFT regulation”, June 2017). to be more than if it was controlled). The first two types are likely to be managed via the At the end of the day, the acceptable risk is called your firm’s risk assessment and AML/CFT programme. The ‘residual risk’. Ultimately you are balancing risk to latter type will require AML/CFT awareness and possibly reward to cost. expert opinion to ensure compliance. A risk assessment is a unique tool for compliance General rules for lawyers and conveyancers: because it implies that the risk decision solely lies with • Unless entangled by bespoke circumstances, the the owner of the risk. It is not a question of compliance. payments of professional fees or invoices are not With AML/CFT the solution lies in between. First of all captured by AML/CFT (at this stage). you must treat it as a compliance programme; second • If a practitioner has a reasonable belief that a trans- you still must treat it as a risk assessment. This concept action is for a dishonest purpose or is being used to must be understood in order to successfully implement aid or commit a crime, legal privilege does not apply. an AML/CFT programme that is practically effective, efficient and economical in its composition. Non-technical considerations New Zealand Law Society Practice Briefing: Preparing AML/CFT is unique in that it adopts a risk management for becoming a reporting entity under the AML/CFT Act, tool called a ‘risk assessment’. Traditionally these tools has stated that your risk assessment involves assessing are not commonly used in compliance programmes; as the nature, size, extent, volume and complexity of your compliance programmes usually start with identifying firm’s services/transactions; evaluating how your firm obligations, interpreting them and placing processes delivers upon its services; and the types of customers, and controls in place. institutions and countries your firm deals with. Before beginning your risk assessment take the time You should also consider any non-regulated services to understand your risk appetite and culture. As these you perform and the direct/indirect impacts of these; ultimately represent the level of reward that you con- key intermediaries, suppliers, outsourcing agents and sider is acceptable when conducting your business. It stakeholders that your firm interacts with; and most

42 LAWTALK 912 · November 2017 AML/CFT

important of all, consider any ‘firm to customers. The degree of sharing unique’ practices, conventions or would naturally require considera- procedures – as these are likely to tion of your current pricing regime, drive behaviours that may lead to the soundness of your competitive the creation of bespoke circum- advantages and the competitiveness stances causing an out of scope of rival firms within the industry. transaction to suddenly become On the risks you have decided to within the scope of AML/CFT. avoid, you should start planning your Some other things to be mindful of: exiting procedures. I would highly • Take time with your risk assess- recommend documenting these ment; it is the foundation of your exiting procedures to show evidence AML/CFT programme. If you hav- of how you have avoided these AML/ en’t started it yet, then start now. CFT risks. Exiting or limiting services • If you start with a generic assess- and/or exiting customers may ment/programme ensure you still require some frank conversations tailor it to your firm – AML/CFT is with other partners, staff and even not one size fits all. Larger firms customers themselves. may want to enlist the services I will not elaborate on putting of an AML/CFT expert. policies, processes, controls and • Your risk assessment/programme procedures in place; as this is rea- is a live document that should be sonably self-explanatory. But I will regularly reviewed and updated. offer some food for thought: • Keep in mind that while you can • Customer due diligence can vary outsource your AML/CFT activi- and requires good judgement. ties you will still be held liable The more simple, pragmatic and for such activities. In other words, consistent you can make your you cannot transfer out of your verification procedures; the easier AML/CFT risks. you will make things for your firm • As this is a compliance pro- and your customers. managing supervisor scrutiny, etc. gramme, it would be at your • Exceptions should be excessively • Large firms should not underestimate the importance own peril to accept any medium documented, with larger and of a well-structured awareness programme. In my to high residual risks. moderate sized firms being able experience, the most successful awareness pro- Before you have completed your risk to demonstrate that they were grammes mirror marketing campaigns. Awareness assessment, ensure you sense check escalated to the majority of the should be multi-faceted – training, competitions, it and then sense check it again. partners in the firm. posters, announcements, workshops, etc. Messaging For any AML/CFT risks rated • Please be mindful that due dili- should be short, sharp and on point. Awareness activ- medium or above decide if you gence must be completed upfront. ities should have a budget associated with them and are going to reduce the risk (add This equates to your staff needing make up 20-30% of the designated AML/CFT compli- in policies, processes, controls and to be well versed in AML/CFT ance officer duties. Moderate to small firms should procedures) or avoid the risk (this requirements. Training of front ensure everyone knows who the designated AML/ could involve exiting or limiting a line staff in approaching AML/CFT CFT compliance officer is and ensure all staff undergo service offering, or detaching your- requirements with customers is AML/CFT training and coaching. self from an existing customer or highly recommended. Creating Yes, this will be a journey. But ensure you start it now customer type). AML/CFT Frequently Asked and ensure you treat the journey seriously. ▪ On the risks you have decided to Questions (FAQs) would also be reduce, you document your policies, of benefit. Like most things in life; If you change the way you look at things, the things processes, controls and procedures the way you approach something you look at change. - Wayne Dyer in your AML/CFT programme. Please will often make the difference be mindful of leveraging existing between success and failure. Damon Herbert is the Trust Account Administrator policies, processes, controls and • I would recommend large to mod- for Righteous Law and at the time of writing this procedures. erate sized firms implementing article he is transitioning between a Senior Risk When deciding to reduce a risk an AML/CFT control monitoring Manager at Sovereign Insurance and a Senior Risk there is one component that is often programme. This will assist in Manager role at Suncorp New Zealand. Starting out as neglected; that is the re-pricing of identifying gaps or weaknesses a chartered accountant he has over ten years’ expe- the service to include the added sooner rather than later; thereby rience in financial services in terms of implementing, compliance costs. Like any business, avoiding audit issues, reducing maintaining and providing assurance over various risk it is likely that all or some of these the level of management effort management and compliance programmes (including compliance costs will be on-charged required in rectifying such issues, AML/CFT).

43 AML/CFT November 2017 · LAWTALK 912

AML/CFT The first step of AML/CFT compliance – understanding your ML/TF Risks

BY NEIL JEANS

what compliance means for lawyers before from the nature of a regulated business’ One of the main aims of New Zealand’s Christmas 2017, and as a result lawyers customers, namely the customer location, AML/CFT regime is the identification and will have around six months to establish what business activities they are engaged management of money laundering (ML) compliance regimes. in, the customer’s legal form, and whether and terrorist financing (TF) risks. The first This is not a long timeframe given the they are a Politically Exposed Person (PEP). recommendation within the Financial preparation work required, and given the ML/TF business risk is the risk that Action Task Force (FATF) standards is a short compliance timeframe for lawyers business operations may be vulnerable requirement to understand ML/TF risks set by the revised AML/CFT Act, lawyers to money laundering or terrorist financ- at a national and regulated entity level. covered should start as soon as possible in ing. ML/TF business risk is significantly This indicates the importance that the FATF getting to grips with the obligations placed influenced by where the business opera- places on understanding ML/TF risk, and upon them by the AML/CFT Act. tions are located, whether they use third its importance to AML/CFT compliance. With a focus of the AML/CFT regime on parties to operate AML/CFT controls and It has been internationally recognised managing ML/TF risk, one of the founda- processes, and the ML/TF risks resulting since 2003 that Designated Non-Financial tional components of AML/CFT compliance from employees. Businesses and Professions (DNFBPs), that lawyers and other DNFBPs will need ML/TF product and service risk is deter- including lawyers and the legal profession, to address is understanding the money mined by an assessment of how much are vulnerable to being used to facilitate laundering and terrorist financing risks functionality and capability the product money laundering and therefore should be they face. Understanding the risks that a or service allows the customer or others, brought into AML/CFT regimes, if they offer business faces will inform the type of AML/ including the ability to deposit/withdraw vulnerable services such as the creation CFT programme required and the extent of funds (including cash), transact remotely, and management of companies and other efforts necessary to achieve compliance. transact with overseas parties, and include legal arrangements. It is unrealistic that lawyers offering third parties in the transaction, or provide There is clear evidence that “gatekeepers’, services that bring them into the AML/ anonymity to the customer. including the legal profession, can play a CFT regime would operate in a completely ML/TF risk is also significantly influ- role in money laundering, terrorist financ- risk-free environment in terms of ML/TF. enced by the nature and/or attributes ing, and the commission of other criminal Therefore, it is important that lawyers iden- of the channels used to deliver products offences. The ability of lawyers, and other tify the ML/TF risks they may reasonably and services to customers. ML/TF channel types of gatekeeper, to unwittingly facili- face, then assess the optimal approach to risk is influenced by whether the delivery tate criminal activity is also high on inter- reduce and manage those risks. of a service involves face to face contact national and domestic political agendas, Both within New Zealand’s AML/CFT with the customer, as face to face contact with tax avoidance and evasion schemes regime, and internationally, are defined limits the ability for customer anonymity such as the Panama Papers highlighting a number of ML/TF risk dimensions and facilitates establishing whether the particular ML/TF risks and vulnerabilities. that should be included as part of a ML/ customer is who they are claiming to be, Against this background, in August 2017 TF risk assessment. It is important that as well as the use of third parties by the New Zealand moved to revise its AML/CFT lawyers and other DNFBPs understand regulated entity as part of the delivery regimes to fully include DNFBPs, including these dimensions and ensure that they chain of a service. lawyers offering a number of services. This are incorporated into their ML/TF risk Additionally, ML/TF country risk is the has resulted in lawyers being brought into assessment. assessment of a country’s or jurisdiction’s the AML/CFT regime from July 2018. ML/TF customer risk is the risk or vul- vulnerability to money laundering, ter- The Department of Internal Affairs (DIA), nerability that customers may be involved rorism financing, and targeted financial who will regulate the legal profession for in money laundering or terrorist financing sanctions. Country risk is an important AML/CFT, is due to provide guidance on activities. ML/TF customer risk is derived factor within customer, business, and

44 LAWTALK 912 · November 2017 AML/CFT

channel risk as each of these risk dimen- comply with ISO 31000 standards, ML/TF By assessing their ML/TF risk, lawyers sions contains a jurisdictional component. risk assessment should assess the inherent will ultimately be able to ensure that their In addition to the above risk dimensions, risk and the residual risk. Inherent ML/TF response is proportionate and therefore does it is also important that regulated entities, risk is the outcome of an assessment of not over-burden the business with unnec- including lawyers, understand the external the likelihood of a risk occurring and the essary or inappropriate compliance activity. and internal environments in which they impact of the risk, were it to occur before Undertaking a ML/TF risk assessment is operate, and how this can contribute to controls applied to mitigate the risk have therefore a vital first step for lawyers, and their ML/TF risks. been considered; and residual ML/TF risk other DNFBPs, in preparing for compliance The ML/TF risk assessment should is the outcome of an assessment of the with obligations under the AML/CFT Act. ▪ therefore also include an assessment of identified inherent risk after the existence vulnerability to predicate crimes. Predicate and operational effectiveness of controls Neil Jeans  neiljeans@amlaccelerate. crimes are the crimes identified by the to mitigate that risk have been taken into com is a principal at Initialism, an AML Financial Action Task Force (FATF) as consideration. compliance consultancy, and co-founder capable of generating criminal proceeds Once ML/TF risks have been assessed, of AML Accelerate, a solution that delivers and criminally derived assets. the next step for regulated entities is to AML/CFT compliance to regulated enti- New Zealand has its own unique vul- develop mitigating systems, processes ties including ML/TF risk assessments. nerability to predicate offences which are and controls to effectively manage ML/ Neil has a unique background in financial captured in the threats identified by its TF risks. These systems, processes and crime risk management, spanning over National ML/TF Risk Assessment. New controls should be set out in the AML/CFT 25 years. This includes working within Zealand’s vulnerability should be incor- Programme and should be appropriate and law enforcement agencies, as a Financial porated by regulated entities into their proportionate to the ML/TF risk faced. Services Regulator. own ML/TF risk assessments. A regulated entity’s vulnerability to predicate crimes may be because a customer is involved in the commission of one or more predicate crimes and/or is seeking to use products and services to launder the proceeds of a predicate crime. Providing Professional Indemnity and specialist insurance A regulated entity’s assessment of its ML/TF environmental risks should also products to the Legal Profession include the internal vulnerability to being Visit www.justitia.co.nz for further information and application forms involved in money laundering, terrorist Or Contact: Mr Ross Meijer, Aon New Zealand financing, or breaching targeted financial 04-819-4000 sanctions. [email protected] Like all other assessments of risk, to

45 CLOCKBLOCKER · TECHNOLOGY

TECHNOLOGY CLOCKBLOCKER Five things lawyers believe that are bullshit

BY CLAUDIA KING

want because they surveyed one relationships will strengthen as Many lawyers have a set of about four years ago. a result. beliefs about how lawyers should I fell into this trap for most of my Practical tip: Set aside 30 min- act and do their legal work. Some career because, in 2009, we worked utes every week or fortnight to of these beliefs are simply not true. with a business coach who surveyed speak to clients. Choose a couple Our legal training, the media, TV our clients, and I spent years believ- of clients to phone each time. shows and movies about lawyers, ing I knew what my clients wanted Ask them how you’re doing as a and our relationships with other based on the results of that survey. lawyer and a law firm. The added lawyers foster these beliefs. These But things change so quickly. It bonus is that chances are you’ll beliefs also come from a place of wasn’t until years later when we end up with some more legal work fear: fear of getting something got regularly surveyed and spoke from each call. wrong, fear of losing a client, fear to our Legal Beagle clients about of being sued, and fear of the future our service that I actually began to ❸ You can’t charge of the legal profession. really understand what my clients your clients the As a lawyer I had a set of beliefs wanted. same amount if you about my job, some of which I now Practical tip: You can use use automation realise were wrong. For example, I Survey Monkey to survey your It’s true that document automation believed that all lawyers needed clients online for free. It’s super software like Automio lets you to fill out timesheets by recording easy to use. Limit the number of create legal documents in seconds. every six-minute unit, whether it questions you ask to say three This freaks a lot of lawyers out – how was billable or not. My reason for questions, and ask meaningful can you sell a document that usually this was that if a client ever com- questions like: “what is the one takes you an hour or so to prepare for $500 when you plained we would have a time-based thing we should do right now to only spend 40 seconds creating it? record of what was done and when. improve our business?” It’s up to you to communicate the value in the In my first job out of uni one of work you do to the client and what your prices are. the first things I was taught was ❷ Your clients will If you can’t communicate the value then it is likely how to time record and the rules complain if you ask low value work, and this is the work you’re at risk of around it. I now realise that while them for feedback losing unless you get more creative with your solu- time recording may be a useful tool Lawyers often feel they can’t pick up tions for clients. If the work is low value and you’re for some people, it wasn’t a good the phone and ask clients for feed- charging a lot for it, well, you’re probably not going tool for me as I believe it suppresses back about their services because to be able to do this for too much longer regardless innovation. they’re worried about a negative of whether you’re using document automation or Here are five beliefs lawyers have response. I used to be too scared not. So you need to find creative ways to serve your that are wrong, and some practical to ask clients for feedback – what clients and provide them with value so they keep tips to help you to overcome them: if they complained about the fees I coming back. was charging them? Practical tip: Look at the regular work you do for ❶ You know what It’s far better to have an uncom- each of your clients and identify ways to deliver your clients want fortable conversation with a client it in a way that creates more value for them. For Lawyers must remember the about what you can improve example, say you have a property investor client core purpose of their jobs: to than risk losing them as a client. who you regularly prepare deeds of lease for. Being serve their clients. It follows Remember that constructive able to deliver a deed of lease to a property investor that to do this well lawyers need feedback from a client provides client within an hour or two of them instructing you to understand what their clients a massive opportunity for you. is valuable to them – it means they can get a tenant want. Lawyers often assume You’ll also find that clients enjoy signed up days or weeks sooner than it would take they know what their clients being able to contribute and your if it takes you a week to get the lease to them.

46 LAWTALK 912 · November 2017 

and the Beyond Billables automation won’t put you out of Ton Volz CC-By-NC ❹ You have to work long  beyondbillables.com/podcast- work as long as you embrace tech- hours to be successful for-lawyers podcasts. You’ll get nology as soon as possible. This will Most lawyers I know feel they work too much and some good ideas about how to help to ensure that your legal knowl- don’t have enough time for what matters most. They work smarter, not harder. edge and skills remain in demand also don’t take much time off. Many lawyers accept Practical tip 2: If you don’t have to clients and your firm. Learning this as a way of life as a lawyer, so they don’t try at least a week of leave booked in how to use new technology to make to improve it. After all, the lawyers on Boston Legal the next few months or so, book it it easier for clients to handle their worked 16-hour days, so that’s what you need to do, in now. And the next time you’re legal needs is essential to remaining right? on leave, book in your next holiday in demand. With all the wonderful tools at our disposal, lawyers after that. Practical tip: start using a new don’t need to work long hours to have a successful technology right now. Give it a good legal career. Instead of accepting that you’ll need ❺ Clever software and bash for a month, and if it works …. to work long hours for the rest of your working life, robots are going to well, great. If it doesn’t, move on. commit to improving this aspect of your life. Create replace lawyers There’s legal software available to greater efficiency in your practice by using automation Every time you read a lawyer mag- lawyers that doesn’t require you to software, or hire another lawyer or assistant to help azine there’s another article about pay an expensive upfront fee. ▪ your team. Perhaps you can outsource some of your another law firm launching an AI admin or marketing work you don’t enjoy much. Look project or some kind of bot. You may Claudia King  claudia@ at easier ways to earn revenue, like creating packages find this intimidating because you’re autom.io is CEO and co-founder for clients with monthly subscriptions fees, or selling unsure of this technology and the of Automio, having left legal legal products online like wills or an online course for impact it will have on your practice. practice to focus full-time on property investors or small business owners. You don’t need to freak out, but delivering law online and using Practical tip 1: start listening to the Happy Lawyer you do need to take action now to technology to make law firms Happy Life  thehappyfamilylawyer.com/podcast stay ahead. The good news is that more efficient and profitable.

47 TECHNOLOGY

TECHNOLOGY Fixing Corporate IT

BY DAMIAN FUNNELL enough. In most organisations the IT their shortcomings by referring to the department exists simply to feed the beast, SLAs (service level agreements) that their Last month we looked at why which leaves no time or money to spend on poor service somehow continues to meet. corporate IT is so awful. This month we’ll empowering users or ongoing innovation. Users cannot be productive without look at how it can be fixed. Kill the beast; move it all to the cloud. technology at their disposal. This is why In most large organisations IT is viewed Get rid of those expensive, inflexible legacy forward-thinking companies like Google as a costly inhibitor to the business, rather applications and use software delivered and Facebook make computer acces- than the driver for productivity, innovation as a service. sories, such as keyboards, mice, power and growth that it should be. If your adviser huffs and puffs about how supplies, etc available to employees for It doesn’t have to be this way. We live in a you can’t kill the beast for this reason or free via vending machines. Sure, some time of rapid technological innovation and that, then recognise that they too are the of these peripherals will be stolen, but all businesses, large and small, should be beast and it’s time to find a new adviser. these companies realise the importance reaping the benefits of ongoing advances of empowering their people and keeping in technology. Focus on clients first them productive, rather than making them Emerging technologies such as self-driv- When you think about it, technology in beg for tools they need to do their jobs. ing vehicles and artificial intelligence are most companies, particularly in law, is Make user satisfaction the only SLA you going to change the face of industry and inward-focused and generally does a poor track – if your users aren’t happy then commerce in ways we can’t yet compre- job of servicing clients. something’s wrong and it needs to be fixed. hend. Existing technologies, such as cloud Very few organisations, for example, computing, are already changing the world provide effective automated self-service Imagine what’s possible – just look at the disruption brought on tools to their clients. Old timers like me remember a time when by companies like Xero, Uber and Airbnb. Working with my lawyer involves too business process innovation drove technol- Yet most corporations are woefully ill-pre- many phone calls, emails, face-to-face meet- ogy buying decisions. Businesses looked pared to maintain their existing systems, let ings and bits of paper. Except for the fact at their manual, paper-based processes alone exploit new and exciting technologies. that documents arrive in an electronic inbox and thought ‘wouldn’t it be cool if we Here’s how to fix corporate IT: rather than a physical one, I doubt that the computerised all this?’ engagement between client and lawyer has Innovation started with an idea and the Return to first principles changed very much over generations. technology followed. If your IT department doesn’t know what Companies that focus on clients first You don’t see a lot of this happening it’s there for then don’t be surprised if it when making IT decisions often become in corporate IT these days. I can’t tell you doesn’t do a very good job of it. market leaders. Look at Air New Zealand – why, but I wonder if it’s because most of Return to first principles. Define the they still have a large IT beast of their own, us have the ideas beaten out of us in the handful of things that are important to but over the past 15 years they’ve led the corporate world, where cost and risk are your organisation. Everything else is noise. world with client-facing technology such as to be avoided at all costs. This isn’t a technology discussion, it’s a online self-service and self-service kiosks. As we enter an era of artificial intelligence business discussion. All IT decision-making should start we will find that all professions will become No one can tell you what your first prin- with a non-technical discussion about commoditised at the low end. Those who ciples should be, but remember that no the client and his or her needs. Focus on recognise shifts in technology as an oppor- one ever cost-cut their way to innovation meeting these first and not only will your tunity rather than a threat will thrive. or success. clients love you for it, you’ll also get a much Those who are brave enough to invest greater return on your IT spend. their IT dollar into true innovation, instead Kill the beast of feeding the beast, will truly have fixed A corporation's IT infrastructure is a relent- Focus on users second their corporate IT. ▪ less beast that requires constant feeding. If you really want to see how an organisation Hardware and software require endless sup- values its employees then take a look at how Damian Funnell  Damian.funnell@ port, maintenance and ongoing upgrades. well it looks after their technology needs. choicetechnology.co.nz is a technologist Feeding the beast ends up consuming An IT department (or service provider) and founder of Choice Technology, an IT the majority of your IT spend, but no should not be there to blame users for services company, and  PanaceaHQ . matter how much you feed it, it’s never their problems and/or to explain away com, a cloud software company.

48 LAWTALK 912 · November 2017

TECHNOLOGY Tackling policy challenges of the information age

BY LYNDA HAGEN

led by Dr Bridgette Toy-Cronin of Otago Three new studies examining online University Legal Issues Centre, will look at civil courts, data encryption security and how well lay people translate justiciable the use of posthumous healthcare data disputes into legally coherent claims. It have been launched through the Law will also study how well lawyers commu- Foundation’s dedicated $2 million fund nicate client disputes to court, and what for information law and policy research. innovations might help lay people explain Technology is rapidly and unpredict- their disputes to an online court. ably changing how we live and work, often before we can properly consider Encryption how innovations should be managed. Data encryption underlies technologies The new projects, described below, help used for computer and network security, tackle some of the numerous public policy but our current law doesn’t expressly cover challenges posed by the information the issue. A Law Foundation study led by our personal digital healthcare legacies.  Photo by Christiaan Colen CC-By-SA revolution. Dr Michael Dizon of Waikato University These issues raise concerns that must be Our Information Law and Policy Project Te Piringa – Faculty of Law, will consider addressed to ensure confidence and trust (ILAPP), launched a year ago, aims to help principles for a national encryption policy is maintained in the system. New Zealand policymakers keep up with for New Zealand, looking at the legal, tech- Victoria University academic Dr Jon the information age. We already have sev- nical and social dimensions, that could Cornwall and Otago University law lec- eral exciting projects on the go, backing help better prepare New Zealand against turer Dr Jesse Wall are leading a one-year studies on how New Zealand can best cyber attacks and threats. study examining management of how prepare and position itself for emerging The researchers will describe and ana- posthumous healthcare data should be technologies such as driverless cars, lyse encryption and its challenges, exam- used. It will look at current law, ethical artificial intelligence, digital currencies, ining relevant law in New Zealand and guidelines and practice in New Zealand smart contracts and the regulation of new elsewhere. They will research the values and overseas, as well as public perceptions technology. and interests of groups most concerned and attitudes on the acquisition and use with encryption – government, business of personal health data. Online civil courts and the general public – and will recom- The researchers intend to use the find- Many countries, including New Zealand, mend principles for policy development. ings from this initial study to carry out a struggle to provide affordable, readily larger research exercise on the availability accessible means of resolving civil dis- Use of posthumous and use of digitised healthcare informa- putes. Online courts offer a potential healthcare data tion of individuals across their lifespan. solution, and are being explored in juris- Advances in digital technology mean For more information on ILAPP, includ- dictions such as England and Victoria, that patient information can be stored ing how to submit expressions of interest, Australia. and used more efficiently. Data from see lawfoundation.org.nz/?page_id=2381 ▪ In anticipation of online courts being deceased patients can be a valuable infor- considered for New Zealand, a two-year mation source for analysis between and Lynda Hagen  lynda@lawfoundation. Law Foundation study will examine how within generations, potentially leading to org.nz is Executive Director of the litigants can explain their disputes clearly improved healthcare outcomes. New Zealand Law Foundation. Further enough to be used in an online resolution But the use, and potential misuse, of information about research funded process. posthumous healthcare data raises ethical by the Foundation can be found at The multi-disciplinary research team, issues around what should happen to  lawfoundation.org.nz.

49 TECHNOLOGY November 2017 · LAWTALK 912

TECHNOLOGY Is your email service appropriate for your practice?

BY DAMIEN FUNNELL bit after the @), such as xtra.co.nz or ihug.co.nz and you from these services, so they’d keep can’t take this part of your email address with you if Vodafone recently announced them as basic as possible to keep you change provider. Doing so means having to change that they are shutting down all of costs down. your email address and this is problematic for businesses their email hosting services from 30 Despite their limitations these for obvious reasons. November. This is forcing hundreds ISP-provided email accounts This is why many thousands of small businesses, of thousands of customers – some became wildly successful, mainly including small law firms, barristers, etc, have been of whom have used their Vodafone- because we didn’t have many other more or less trapped with their ISP-provided services provided email addresses for dec- options to choose from. Even now for years. ades – to migrate to alternative it’s estimated that over a million Even if your email address ends in your own domain services. New Zealanders use ISP-provided suffix (egyourdomain.co.nz ‘ ’) you may find that your Many of these affected customers email accounts from the likes of corporate email is hosted by your ISP and this can be a use these email accounts for busi- Spark (Xtra), Vodafone and others. real problem. ISP-provided email services simply aren’t ness purposes, including a number Unfortunately, many small busi- designed for business use. of customers from the legal industry. nesses lacked the money and/or the Even the smallest businesses of today have email Even if you’re not a Vodafone expertise to implement their own capacity, availability and security requirements that email customer, this development email systems and ended up using ISP-provided services were never designed to provide. does highlight the importance of these ISP-provided services as well. My advice is move your email to the cloud if you using a business-class email service Much has changed in the 25 years haven’t already done so. for business purposes. since the ISP-provided services first Google and Microsoft both provide excellent, stable The provision of email services by emerged and there is now a plethora and secure services that are appropriate for any sized Internet Service Providers (ISPs) is a of consumer- and business-grade firm. Best of all, they are inexpensive. hangover from a time before Gmail email services available. The indus- I expect that we’re going to see other ISPs follow and even before Hotmail. This was try leaders in the commercial space Vodafone’s lead and close down their email services the dawn of the consumer internet are Google’s G Suite (my personal over time, as there’s not much financial sense in keeping revolution and back then email ser- favourite) and Microsoft Office 365 these running. If your firm still uses these services then vices were difficult to come by. At (still good). my advice is to start planning to migrate off them sooner the time most of us could only get The problem is, it can be really rather than later. email accounts from our employer difficult for businesses to move You want any such migration to be to your schedule, or from our ISP. away from their ISP-provided email not one dictated by your ISP. No matter what your cur- These email services were gener- accounts. rent set-up looks like, there are methods for ensuring ally very basic, no-frills affairs. ISPs These ISP-provided accounts that you don’t lose any email either during or after the wouldn’t make any money directly often use fixed domain suffixes (the migration. ▪

I’m looking to:

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50 LAWTALK 912 · November 2017 TECHNOLOGY

TECHNOLOGY RECENT DEVELOPMENTS

software which would be available in the away, or whether the document needs to Automio cloud with e-commerce built in. It would come to the lawyer first for review. be affordable and easy to use. “Automio facilitates credit card pay- And so Automio was born. It launched ments to help lawyers get paid quickly. Claudia King, who until a few months in June 2017. If you don’t want to author your own ago was the director of law firm Dennis automated documents you can use King Law and its online brand Legal Beagle, What is Automio? Automio's readymade precedent bank recalls “doing a lot of really repetitive and It is software that empowers busy lawyers of automated legal documents. Or the boring document creation” as a lawyer. to automate repetitive, time consuming Automio team can turn your legal doc- “I also spent a lot of time reviewing tasks like document drafting. Lawyers can ument Word templates into automated documentation prepared by my team as I create documents in seconds. documents for you. lived in fear of someone making an error. It Ms King says Automio comes with an made me miserable and I yearned to have interview bot and document builder in the Who is using Automio? more time to spend doing more meaningful cloud. “You train Automio to ask questions Automio says it has about 250 users, most legal work,” she says. and produce customised documents based of whom are in New Zealand and Australia, Claudia says she looked around at the on what it learns from you or your clients,” with some users in the United States and document automation software available to she says. the UK. speed up document creation, but felt it was “You don’t need any IT experience to Most users are lawyers and law firms, too expensive, too hard to use and inflexible. automate your legal document creation but Automio is used in several other indus- Claudia and her late father, Dennis King, using Automio. tries including insurance, engineering, launched Legal Beagle in 2011 with the aim “Automio also helps lawyers and law firms hospitality, and real estate. of making buying online legal services and serve their clients online without the expense The majority of Automio's law firm users legal documents easier. To sell legal docu- of getting an ecommerce website developed. are small to medium sized law firms with ments online she found herself again look- Clients complete interviews online and then two to 10 partners or directors. Ms King ing at document automation software but, Automio creates their required documents says she has recently seen an increase in unable to find what she was looking for, in an instant. Lawyers can choose whether interest from in-house teams and larger decided to build a document automation the client can have the document straight law firms.▪ Everlaw e-discovery software BY KATE predictive coding and other filters to help case with 100 million documents as you GEENTY users find documents they are interested are if you’re accessing a case with 1,000 in. “It’s commonplace these days for many documents.” discovery matters to say something like Everlaw and Nulegal charge per gigabyte Cloud-based eDiscovery software ‘we want all of Ben Kennedy’s emails to used per month. “There is a cost there, but Everlaw aims to make electronic discov- do with Everlaw’. Now, I have over 20,000 the end benefit is you’re able to do things ery as easy as a Google search or finding emails on that topic, so we need to be a much quicker.” a movie on Netflix. little bit smarter about how we run those Mr Kennedy says Everlaw’s average Everlaw has been in the New Zealand searches. Everlaw uses predictive coding document review rate is 115 documents market for about 18 months, through a so you can search everything in an instant, per hour. “And we see that move north partnership with Nulegal. Ben Kennedy, you can search as fast as you Google search. when there’s more familiarity with the manager at eDiscovery and forensics at It’s intuitive and it’s fast.” substantive content.” ▪ Nulegal, says Everlaw embodies machine Because it’s intuitive, Mr Kennedy says learning and predictive coding. “Which is lawyers are doing more in the platform. like Netflix. Netflix recommends movies “They feel more confident to run the Recent Developments aims to to you based on its understanding of the searches for their documents. The same provide information on new prod- characteristics of the movies that you way you jump onto Google, you don’t ucts and services which are likely watch. That technology has been brought feel the need to ask someone how to run to be of interest to lawyers. While into the litigation space. If you’re marking a Google search, you get in there, plug in the New Zealand Law Society only documents of interest, then the Everlaw some search terms and do it.” profiles products which it believes system will point out other documents that Mr Kennedy says the cloud infrastruc- have proven benefits, it does not have similar characteristics.” ture scales with demand. “You’re delivered endorse these. Everlaw uses keyword searches, the same experience if you’re accessing a

51 INNOVATION November 2017 · LAWTALK 912

INNOVATION

Larissa Vaughan Head of Legal Wealth and Digital Legal Lead, Kiwibank and Kiwi Wealth

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

What has been your experience familiar with work management or interaction with legal tools like Trello and Kanban innovation and technology? boards, and switched email to I’ve been working with our business Slack. teams to develop new financial services products and platforms. What challenges or barriers do Many of our teams use agile work you face when innovating or practices which challenges the way looking to use new tech? of the overall delivery. It also offers opportunities we’ve traditionally practised law. I It can be hard to know what’s out to automate repetitive work and focus on the more have also been involved with the there, without getting inundated strategic value add work. For example, I’d much Kiwibank FinTech Accelerator with sales pitches. In particular rather focus on crafting court submissions than spend Programme, which takes agility to it can be difficult to understand hours trawling through documents in discovery. a new level and ups the challenge what will work in a New Zealand for lawyers. environment and which technol- With greater adoption of tech and more innovation, ogy can best add value and fit how do you see your role evolving in the future? What changes have you seen in with your particular business. The concept of being a T-shaped lawyer really makes your firm, team or organisation It’s also easy to get bogged down sense and appeals to me -a term first used in 1991 which recently? in the day-to-day and default to has gained popularity recently. That is having depth I think innovation is about more the usual way of doing things. and expertise specialist legal knowledge and also gen- than pure technology, it’s also Sometimes you need a nudge, eral breadth in legal and non legal skills, such as tech about adaptive ways of working. or even a well-executed push, to know how, so you can work more collaboratively and We’ve had to change the way we re-evaluate how you work. holistically. It can be challenging to leave the comfort practise law to keep up with the zone of pure law, but very rewarding. ▪ needs of our (internal) clients. What opportunities do you see Agile teams mean we’re going to with legal innovation? Andrew King is the founder of E-Discovery Consulting start-ups, monitoring beta tests The right innovation gives lawyers and organiser of LawFest, which takes place at the and delivering advice via customer the chance to work more closely Langham hotel in Auckland on 8 March 2018:  www. journey maps. We’ve had to get with their business and be part lawfest.nz/

Contributing articles to LawTalk Articles on developments in the law, the legal profession, lifestyle or other topics of interest to New Zealand lawyers are welcomed. LawTalk does not publish articles which have been published or submitted elsewhere. Intending contributors should contact the Managing Editor [email protected] in advance. The New Zealand Law Society shares copyright in all published articles and reserves the right to edit or refuse all material submitted for publication.

52 LAWTALK 912 · November 2017

PRACTICE The first 90 days in that coveted new job: How to hit the ground running

BY EMMA POTTS

areas it will help to focus on during It is hard to overstate the those critical early days. importance of starting well: the Understand your purpose: What opening words of a speech, the is your new scenario and what early lines of a novel, the first few does your new law firm/in-house bars of a song. As an audience, a employer want you to achieve? It strong start gets our buy in. Get it sounds obvious but it is crucially wrong at the beginning though and important. At best, the lack of an you’ll struggle to win us back. Our agreed plan between employer and  goodwill is limited if things don’t employee will reduce momentum; at worst it will lead initiatives. Identify which people John Perivolaris CC-By-NC-ND offer promise. to failure. internally are likely to support or Fortunately, if you have secured a For example – are you establishing a new function, oppose you and those who can new strategic role as a senior-level building on the success of an existing one, or reinvig- be persuaded. Thereafter, devise lateral hire, you’ve got longer than orating an underachieving department? Your approach strategies to deal with the relevant 30 seconds to make your mark. and focus will be different for each. groups. But you haven’t got forever. Time Plan to learn: You don’t have to provide all the Keep your discipline: Be strict is money and there will be a finite answers on day one; in fact it will be detrimental to try. about planning. At the end of each period by which you will want to First you’ll need to evaluate the organisation you have day and week assess where you are have to have made measurable joined: How has it arrived at its current position? You’ll in relation to your objectives and progress. also need to understand internal culture and politics plan ahead. This will bring a sense In The First 90 Days (Harvard in order to be effective and avoid early mistakes. Work of order at a time of flux. It will also Business School Press, 2013), out what you need to learn and the most time-effective give you opportunities to adjust Michael Watkins suggests a way to gather this knowledge. your priorities as needed. career transition period of 90 Identify and target the low hanging fruit: Early wins Invest in yourself: You will be days, as being the time in which build personal credibility and momentum. Make sure devoting extra energy to work in your compass will be set towards the wins you target are also important to your leadership these early months. You also need to success or failure. It isn’t simply team. Work to understand their expectations in terms find time to relax and refresh to be about surviving – those first three of your delivery. your most effective. A good start is months can ultimately determine Develop your internal coalition: Not just in terms key but career success is a marathon just how far you can go in terms of fellow lawyers but also colleagues across other not a sprint. ▪ of your opportunities to influence support functions or business divisions. At some and to progress. And 90 days will stage you will need their skills. Establishing good Emma Potts  epotts@ pass quickly. relationships before you need their input will be chancerylegal.co.uk is the Successful transitions are com- advantageous. founder of UK-based specialist plex and require careful attention. Understanding the dynamics of who influences who legal headhunting consultancy, This brief article highlights some key and on what will be invaluable when advancing future Chancery Legal.

53 PATHWAYS IN THE LAW November 2017 · LAWTALK 912

PATHWAYS IN THE LAW GIBSON SHEAT Practising sports law in the professional era

BY NICK BUTCHER

Richard Gordon — NZ Schools ▸ The law firm Gibson Sheat has a long history in Barbarians v Tonga U18s the Wellington region, with its origins dating back to the early 1900s. “We cover the whole range of Today it has three offices, in Wellington, Lower Hutt commercial and other contracts, and Masterton, with lawyers covering a wide area specific to this sector. It might be of practice with expertise in all aspects of business, stadium agreements, sponsorship, litigation, personal legal services, property and rural intellectual property protection, legal issues. engagement of athletes, disciplinary And with some sports codes going professional over work, and we’ve had a number of the last 20 years or so, sports law is an area they have cases where we’ve represented had an ever-growing interest in. organisations in front of the Sports Nigel Stirling is one of its 13 partners, having joined Tribunal,” he says. Gibson Sheat in 1984 as a commercial solicitor. Mr Stirling says he has also His passion though is sports law, an area that he has acted for the Wellington Phoenix grown and developed further over many years. football team, assisting with all of the work around the visit by West Opportunity Ham United and Newcastle United “I was actively involved in a lot of sport and I was often to New Zealand in 2014. Other legal the first port of call for people who needed legal advice work specific to sport includes the including from team-mates, whether it was for buying development of an anti-match fixing a house, needing a will, someone getting into trouble or and anti-sports betting policy for issues with the sports clubs’ constitutional agreement,” adoption by all of the national sports he says. organisations. pro bono basis,” Mr Stirling says. Mr Stirling says it became apparent there was an “That’s a battlefield for sport at opportunity to create a sports law area of practice. the moment with regard to integrity. Bread and butter work “By the early to mid-1990s, sport was changing. Rugby Safeguarding the huge benefit of He says there is a limited number of was moving towards professionalism and I decided to sport long-term is what that’s all high-end clients in New Zealand and immerse myself in that sector to see whether I could about, so doing work in that area a lot of the contract work they do is combine my career with my love of sport.” is very satisfying,” he says. essentially their ‘bread and butter’ Mr Stirling says being involved in sports clubs enabled On the surface, many people sports law. him to build a client base. might see sports law as a dream “There’s rugby, cricket, basket- “That gave me exposure to all these different areas of job, particularly if you believe the ball, football and a few other sports law. I became chairman of my local rugby club, which adage ‘choose a job you love and that are professional but it’s not helped me understand how the administration of sport you will never have to work a day a large number so the volume of works. I volunteered to be involved in Sport Wellington in your life’. work to go around is limited, which where I was a trustee for 11 years. I was also fortunate “It is fun but it does have chal- is why a lot of the work we do is to get on the board of directors for Wellington Rugby lenges because often the client for regional and national sports in 1996 at a time when professionalism was in its early base is not able to pay a commer- organisations, clubs and with a lot days,” he says. cial rate for legal services. Some of the work around constitutions can and do, but a lot of our work and rules,” he says. The practicalities of sports law is sharing our knowledge and It was his love of sports that led It’s about assisting people and organisations who are experience for the benefit of sport Lawyer Richard Gordon to practising engaged in that sector. at discounted rates or often on a sports law. He has been employed by

54 LAWTALK 912 · November 2017 PATHWAYS IN THE LAW

Gibson Sheat for about 18 months. Mr Gordon, who is 27, also referees rugby so he has that practical experience on the sports field. “I played rugby up until first XV level but, unfortunately, I broke my shoulder quite badly and looked for other ways to stay in the game. Refereeing has given me the chance to go to some great places refereeing both Premier and Heartland level for New Zealand,” he says. Sowing the future sports law seeds While Mr Gordon was studying law at Victoria University, he was also working part-time for Wellington Rugby as their judicial ▴ Nigel Stirling — Winner of best dressed golfer at the Devils Own golf tournament administrator. “That involved looking after all the naughty boys when profession,” he says. works and see what comes from they were sent off during club rugby games. Once I He says sports law takes up it,” he says. finished my studies I moved into a full-time role with about half of his working week He says it helps build people the Hurricanes, looking after sponsors and agreements and the clients range from Sport skills, something that will be by using my legal skills,” he says. New Zealand, Wellington Phoenix needed in abundance as a sports He was also aware of Gibson Sheat and the firm’s to new clients such as New Zealand lawyer. sports law practice and had his eye on it. Polocrosse. “You get to deal with real life “It was a case of waiting until an opportunity came “That is lacrosse on horseback. So practical situations and are forced up. One of the philosophies we follow here is that we it’s a wide ranging field of clients to find a solution for them which is try to find a practical solution to issues, so coming from from the smallest to the biggest and exactly what we as lawyers do. So a sports background provided me with some helpful the more commons sports codes to if a person can bring some of that tools in how to work with clients,” he says. the lesser known. Because we are experience, I’d look at it as beneficial Mr Gordon says being a professional referee gives him sports people first, we know what and favourably in any job applica- a good understanding of what the players are trying to the needs are for people in both the tion I might receive. It’s just not a achieve on the field aside from winning. professional environment and the case of deciding that you want to “So instead of just blowing the whistle and penalising community environment and can be in sports law and a role will just a player, I try to see where the player is coming from in put those legal structures in place appear. It doesn’t work that way,” their decision that led to breaking the rules. That’s been for them.” Mr Stirling says. a really transferable skill because as a lawyer I have to He says he and the other law firm look at things from the client’s perspective and be less The path to sports partners look for a range of skills in rigid in my thinking.” lawyering potential employees, not just their As Mr Stirling points out, if a professional player is “Richard, and it’s been my experi- legal ability. sent off the field, Richard knows exactly what process ence too, has put a lot into sports Mr Stirling doesn’t think the the rugby player will have to go through, including the law on a voluntary basis and oppor- future will hold outrageous growth natural justice that will be brought into the forum after tunities have arisen because of this,” for sports law, despite professional a disciplinary process. says Nigel Stirling. sport being a multi-million dollar “He can anticipate all of the stages ahead for a player As a law firm partner and business. and that’s a huge advantage to have in your skill set,” employer, Mr Stirling says he gets a “It’ll be measured but profes- he says. steady flow of young law graduates sionalism is here to stay. Not only Richard Gordon says if it hadn’t been for sports law, wanting to start out in practising do we have paid athletes but we he may have simply finished his law degree and worked sports law. have paid administrators and in a different profession. “For anybody wanting to get it’s great to see also that at the “Potentially I might have used my degree in the sports involved in sports law, that’s the government end they’re investing sector somewhere and not have taken up a legal role. message. Get involved, assist your in sport because of the health and It’s (sports law) not everything I do here but it was the community sports clubs in some social benefits it brings to com- main factor that attracted me into entering the legal fashion, understand how sport munities.” ▪

55 FOCUS ON

FOCUS ON ROTORUA Focus On Rotorua

BY KATE GEENTY

When Kiri Tahana decided to leave her corporate law job in Dubai she made the move back home to Rotorua after 15 years overseas. “This is where I’m from. I’m from Ngati Pikiao, Rotoiti, so I was always keen to eventually return home and use my legal skills to help Māori.” She started at Kahui Legal’s Rotorua office in February, specialising in commercial law. Kahui Legal, which was established in Wellington in 2003, has had an office in Rotorua since 2015. “The firm opened an office here because many of our clients are based in the Bay of Plenty and some of our lawyers wanted to relocate to Rotorua to be closer to their tribal areas,” she says. ▴ Rotorua has a population of about 58,000, and the Rotorua Kahui Legal’s clients are Māori District has an estimated population of 70,500. It’s known for its organisations in their various forms, geothermal activity, featuring geysers, hot mud pools and hot including Māori land owners, Māori- mineral pools – as well as its distinctive sulphur scent. owned businesses, hapu and iwi.  Photo by Marco Klapper CC-By “Unlike other types of commercial clients who are often based in cities, struggle to attract new lawyers, to really become an exceptional our clients are based in their tribal that’s not the case in Rotorua, says advocate because you get lots of areas in the regions.” Stephanie Northey, a director at The opportunities.” Ms Tahana says the quality and Law Shop. “I think if we put out an Kiri Tahana says that Kahui Legal diversity of work on offer in Rotorua ad today looking to fill a new gradu- seeks to attract lawyers who are stacks up against the kind of work ate position we would be inundated passionate about Māori develop- she was doing overseas. with people wanting a job. The staff ment. “For us, we attract Māori who “It’s not about the value but the we have at present are either born want to live in, or be close to, their complexity of issues that makes and bred here, or are just happy to tribal areas, and because Rotorua work interesting and challenging. live here and raise their families is seen as a Māori centre, there’s so I’ve had a big commercial law firm here.” much here in terms of the Māori and in-house corporate background, She says the benefit of working world, it’s an attractive place for and I can absolutely say that you in the provinces is that young our lawyers.” can do interesting legal work, and lawyers get a good grounding in live here and have a great life.” the law. “At a really early stage Networking and in your career you’ll be in court. dealing with stress Attracting new talent That’s the beauty of living in a Emma Miles, an associate at Although some regional towns town like this, you get the chance Holland Beckett and a member

56 Economy ▴ House values Rotorua’s economy grew 3.0% The average house value in the Rotorua district was $401,318 over the year to June 2017, in August, up 17% on the previous year, according to Quotable according to Infometrics, Value.  Photo by Paul Carmona CC-By-NC-ND compared to national GDP growth of 2.8% for the period. of the New Zealand Law Society’s community as tightknit. “When I Waikato Bay of Plenty branch first became a lawyer here I was committee, is the convenor of only 22, and the people here [the the branch’s Women in Law legal bar] have become my closest Association. She has set up four friends. I think there’s a real benefit Women in Law Association com- of living in a community where mittees – in Rotorua, Hamilton, your colleagues are supportive Whakatane and Tauranga – which because they help you through hold formal and informal net- the hard times. It’s a wonderful, working events. “The purpose of really supportive community to the association is collegiality and practice in.” networking. It is not restricted to lawyers; rather is aimed at ladies Diversity of work within the wider legal industry Originally from the UK, Ms Miles including the police, court staff, says one of the main positives for mental health professionals etc.” her about working in Rotorua is Networking with people from the diversity of the local industries. throughout the system is impor- “Ranging from tourism, forestry, ▴ Kiri Tahana tant, says Ms Northey, who works agri-business, to geothermal as the mainly in family law. She says the main industries. It is also strong in local community is good at working the health, education and social together to deal with issues in the services sectors. So, from a legal community. “There are socio-eco- perspective, that allows a really nomic issues here, drug and alcohol broad range of work.” issues and violence … I know what Ms Miles works between Holland my role is and there are other agen- Beckett’s litigation and family teams cies that help. We all have a part and says the lifestyle benefits of the to play.” area also help offset some of the Despite the stresses associated stresses that inevitably come with with her speciality, Ms Northey says the job. she loves what she does. “I really “Rotorua is perfect for providing enjoy my work and am passionate de-stressing activities, whether about it. It’s a really fulfilling career. it’s something along the lines I think you have to be a certain type of kayaking, mountain biking, of person to be a family lawyer and or just being out in the forest or love it.” with wildlife, or soaking in a hot ▴ Emma Miles She describes the local legal mineral pool.” ▪

57 THE NEW LAWYER November 2017 · LAWTALK 912

THE NEW LAWYER Confessions of a recovering goal addict

BY KATIE COWAN

with their needs or values. For them, a failure to achieve For much of my life I wanted to be a doctor. It something is not evidence of worthlessness, but instead seemed to be the hardest thing I could be. It would pay evidence that the goal had not been realistic, that maybe well, and everyone would know I was a good person the next goal should better account for X or Y. These same without having to tell them all the time. My brother, people have an enduring sense of quiet pride when they father, grandfather and great-grandfather were all achieve a difficult goal. They actuallyenjoy it. doctors. And the posters in my high school gym told I do not understand these people. Where is their me that girls could do anything. So becoming a doctor perpetual self criticism? Where is their despair? also met a dual purpose of fitting in at family gatherings Because, when I do not achieve a goal I set, my brain is and honouring feminism. not kind, moderate or realistic. It tells me that my failure These are terrible reasons to become a doctor. Yes, to achieve the goal is evidence that I am inherently bad. even feminism. Obviously, I am lazy and ridiculous. And this happens Becoming a doctor was a terrible goal for me. You just as badly when I fail to vacuum as it does when I fail will note that none of the reasons up there include, to publish any academic papers before I am 25 (both, say, a fascination with biological science, or a love of for different reasons, unrealistic goals in the first place). interacting with countless strangers every day. The things Most people will say that the problem here is simply I like doing, am good at doing, and find meaningful to do, that my goal is not realistic. But that is not the problem are almost all absent from what doctors do. But for a long – the way my brain deals with goals is the problem. time being a doctor was my goal, and so I had to do it. Because the berating also happens when I achieve goals. That mentality, right there, is a big reason why goals To my dumb brain, achieving a goal is evidence that the are not the healthiest way for me to navigate my life. goal was not difficult enough, and I am obviously not And this is a mindset disproportionately common among worthy of any sense of accomplishment. My brain then lawyers. shifts the goal posts to something impossible. Why have I was recently asked for advice on good goals to set I not published 25 papers before reaching 25? for one’s first 100 days as a lawyer. The question made The problem is not goals, but how my brain (and me wince. The first 100 days as a lawyer are usually many young lawyers’ brains) works. I, and many of a whirlwind adjustment period. Trying to learn as you, do not operate from a sense of quickly as possible what is expected and how to do enoughness, of worthiness. We feel it, and figuring out where and how you fit. It is not an constantly like we are making up ideal time for specific, rigid, goals because it is a time for deficits and defects. And the bit of complexity, uncertainty and change. of our brain that commands goals But that impulse to make a complex thing certain is oh and compliance (I call it the “Angry so painfully familiar. I would have asked that question Most people Man”) does not respond to logic. when I started practice. I was so good at goals. I was will say that Because, while I have yet to so good at sitting at a café with a notebook and pen the problem publish an academic paper, I have planning my life, my career, what I wanted to achieve here is simply done things. Often much younger and how young I had to be to do it. The lists, the notes, that my than most people do them. Yet if the blind faith that if I achieved this ridiculous thing goal is not you were to have a private con- at this ridiculous age then everything would finally be realistic. But versation with my brain, it would all right. that is not persuade you that I am a dumb There are people, I’m told, with strong senses of the problem excuse for a human who is inept self-compassion and self-awareness and moderation. – the way my and unsuccessful. For these people goals are a great tool for navigating brain deals I am working on growing a less life. They can take something off their to-do list without with goals is distorted sense of self, but there is a having done it, simply because the goal no longer fits the problem. way to go. And what I have learned

58 LAWTALK 912 · November 2017 THE NEW LAWYER  is that while anxiety and all-or-nothing remain the Instead, I take my notebook and my school and gained a job as a lawyer Photo by Börkur Sigurbjörnsson CC-By-NC-ND dominant modes of my brain, goals hurt more than pens to the café and think deeply or in a law-adjacent field, you can they help. No matter whether I achieve them or not, about what I want in my life, sep- safely assume you are not at risk of they are a means by which my brain proves I am bad arate from what anyone else thinks turning into a sloth puddle if you and lazy and worthless. And I am not those things. Also, or expects or would be impressed stop living life by your to do list for the goals my anxiety-riddled brain thinks are important by. And I come up, not with goals, a little while. It feels like you are are always about being impressive or measuring up, and but with directions to face. This new at risk, but the better evidence is not about what I want or think is important. way of navigating life is still young, that you are an inherently driven, The funny thing is the Angry Man deceived me into and far less certain, but I like it a engaged, person. Deciding to have thinking that the goals were what had yielded me my lot better. goal-free periods, face directions, success. He used them to keep me in line, telling me I did not know myself well as or follow the moment for a while that if I did not operate according to goals and tick boxes a teenager. I just knew I wanted simply will not change that. But it and relentless measuring of self against things not done, people to like me and be impressed might just free you up to enjoy the I would melt into a puddle of sloth and inaction. That by me. But once “doctor” was my process a little more. ▪ felt like truth. goal, it felt like a crushing failure to But it was not true. The times when I have released change course. Even when I learned Katie Cowan  katie@symphony my grasp on goals have been when I have done my best, from a human biology paper I took law.co.nz founded Christchurch most authentic, most constructive work. I started the in first year how much I hated litigation services provider podcast when I did not have goals. I started my own working with facts and microscopes Symphony Law Ltd, and also set practice that way too. It turns out the Angry Man’s goals instead of ideas and arguments. up The New Lawyer fortnightly do not help me get where I want to go; they just make So, if the above rings at all true podcasts at  thenewlawyer. enjoyment and “enoughness” impossible. for you too, let me tell you: if you co.nz for new and prospective So I have decided I am done with goals for a while. have successfully graduated law lawyers.

59 LAWYERS COMPLAINTS SERVICE November 2017 · LAWTALK 912

COMPLAINTS

Lawyers Complaints Service

Lawyers’ action On receiving the letter he had withdrawn for an improper purpose. The rule is con- from acting for the mother. cerned with maintaining the integrity of as a client legal processes and the profession.” The threat It was not proper for a lawyer acting in unacceptable Guildford and her mother subsequently their own financial interest to issue a threat reached agreement. Guildford emailed the of a complaint as a means of pressuring firm’s client care partner saying she would another lawyer to pay a sum of money. [Names used in this article are ficticious] shortly advise the firm of particulars of the “Such conduct undermines the integrity A lawyer who makes a threat to gain loss she had suffered by their actions. The and purpose of the complaints process,” traction in negotiations is acting in a way email, sent on 1 July 2016, went on to state: the committee said. that is “prejudicial to the administration “Due to the pressures of time … I can The committee considered it would have of justice” a lawyers standards committee allow 5 days (close of business on 6 July) been acceptable for Guildford to ask the has said. for your firm or your insurer’s solicitors to firm for an offer provided she had stated The committee considered a complaint make an offer as to settlement thereafter I that any offer would be taken in to account about a lawyer, Guildford, who made a will refer my complaint to the Law Society. when pursuing losses in connection with threat in a personal capacity. I believe your firm has had sufficient time any complaint and provided she made it A law firm acted for Guildford and her over the last few weeks to consider and clear that whether an offer was forthcom- mother on the purchase of a property. The respond to the complaint raised.” ing was not the sole determinative factor property was registered in the parties’ The client care partner complained to of whether a complaint was made. names as tenants in common in equal the Law Society that the email breached Although it found Guildford had breached shares. rules 2.7 and 2.10 of the Lawyers and rules 2.7 and 2.10, the committee accepted It was intended that the mother would Conveyancers Act (Lawyers: Conduct and that she did not appreciate, at the time she later buy the property outright. However, Client Care) Rules 2008, which state: sent the email, that she might be bound no property sharing agreement or other • 2.7 A lawyer must not threaten, expressly by the rules when she was not providing document was prepared to record the par- or by implication, to make any accu- regulated services. The committee also ties’ equity in the property or intentions. sation against a person or to disclose noted that due to personal circumstances, A dispute arose after the law firm was something about any person for any she felt pressure to resolve the dispute as instructed to act on the mother’s purchase improper purpose. quickly as possible. of Guildford’s interest in the property. • 2.10 A lawyer must not use, or threaten As a result, the committee was satisfied The mother disputed that Guildford was to use, the complaints or disciplinary that Guildford’s conduct in sending the entitled to a half share of the net value of process for an improper purpose. email did not warrant a finding of unsat- the property. The lawyer was referred to The standards committee said there was isfactory conduct. ▪ another law firm. nothing in the wording of either rule Guildford became concerned that the that would indicate the rules were only firm was using privileged and confidential intended to apply when a lawyer was Clifton Lyon information against her in the dispute. She providing regulated services. wrote to the firm, advising that it was Guildford was therefore bound to comply censured and acting in a conflict of interest. Guildford with both rules in her personal capacity. said she reserved her right to inform the “In the standards committee’s view, fined $10,000 Law Society and that she considered she the fundamental purpose of rule 2.10 is to had a claim against the firm for failing protect the integrity of the complaints pro- Clifton Killip Lyon has been censured to provide advice about entering into a cess and prevent the Lawyers Complaints and fined $10,000 by a lawyers standards property sharing agreement at the time Service from being used for any purpose committee, following two findings of of the purchase. other than as a forum to consider whether unsatisfactory conduct. A lawyer with the firm responded, lawyers have complied with their profes- A standards committee conducted an denying all elements of her claim. He also sional obligations,” the committee said. own-motion investigation into the conduct said that, until it had received Guildford’s “Rule 2.7 is aimed at ensuring that law- of a suspended lawyer, S. During the course letter, the firm had been acting for both yers do not threaten to make an accusation of that investigation potential issues arose parties with their knowledge and consent. or disclose information about any person concerning Mr Lyon’s conduct that were

60 LAWTALK 912 · November 2017 LAWYERS COMPLAINTS SERVICE

referred to another standards committee. consider that absolved Mr Lyon. couple, Mr and Mrs Nestor, to hold a licence By way of background, Mr Lyon had In its decision on publication, the com- as tenants in common in equal shares, and taken over conduct of some court pro- mittee said it considered the matter to be not jointly. ceedings from S due to his suspension. The “very serious”, and noted it had ordered Mr Willoughby had acted for the couple committee considered the circumstances Lyon to pay a fine at the upper end of the when they sold a residential property around S’ continued involvement with scale available to the committee. and bought the licence to occupy. The aspects of the proceedings and Mr Lyon’s “[The substantive] determination was lawyer accepted that Mr and Mrs Nestor conduct in relation to this. taken on review; the [Legal Complaints intended to hold the licence as tenants in The committee subsequently considered Review Officer] confirmed not only the common and not jointly. Willoughby had Mr Lyon’s conduct in the context of s 7(2) findings of unsatisfactory conduct, but advised them at the time of purchase that of the Lawyers and Conveyancers Act 2006 also the level of the fine. they would need to address ownership at (which provides that it is misconduct for “The committee considered the very some time in the future. Their intentions a lawyer to knowingly allow a suspended seriousness of the matter to be of public were never recorded, however, and on lawyer to provide regulated services). interest,” the committee said. Mr Nestor’s death, the licence to occupy The committee did not go so far as refer- The committee also said it was impor- passed to Mrs Nestor by survivorship. ring the matter to the Disciplinary Tribunal tant to make clear, by publication of Mr Mrs Nestor agreed to honour her origi- for a possible breach of that section. Lyon’s name, “that even lawyers of good nal intention so that each of their shares However, it found that Mr Lyon had per- standing are bound to co-operate with in the licence to occupy would be dealt mitted S to draft court documents (which their regulatory body and to be aware of, with under their wills. A Deed of Family falls within the definition of regulated and comply with, the provisions of the Act Arrangement was subsequently entered services), knowing S had been suspended and the Conduct and Client Care Rules.” into in order to effect this. and considered that to be unsatisfactory. “There is an educative value to the pro- The deceased’s daughter from a previous The committee also concluded that a fession in this,” the committee said. relationship (Ms Jachimo), was co-executor response from Mr Lyon to the committee’s As well as the censure and fine, Mr Lyon with Mrs Nestor. Ms Jachimo paid the legal enquiries had been “unforthcoming in the was ordered to pay $1,000 costs. ▪ costs for the Deed of Family Arrangement. extreme” and “at best, misleading” and that “There was a failure on [Willoughby]’s that was unsatisfactory. When asked what part to follow up on the matter with his role S played in drafting court documents, Mr Lawyers must clients and to provide them with the appro- Lyon wrote “I do not know who drafted the priate advice in relation to the ownership court documents”, in circumstances where follow up structure of the licence to occupy,” the all indications were that S had drafted them. committee said. The committee noted that Mr Lyon, in instructions “While at the time of the purchase of his affidavit made in the matter relating to the licence to occupy, the clients did not S, provided details of the work he believed wish to discuss the ownership structure, [Names used in this article are ficticious] S carried out when he was suspended. there was an obligation on [Willoughby] to This included drafting opening submis- It is important for lawyers to deal follow up on the matter with them in order sions, preparing the plaintiff ’s bundle of with the ownership structure in relation to ensure that they properly understood documents, potentially editing briefs of to licences to occupy, particularly when the effect of the ownership structure … on evidence, amending pleading and submis- they are dealing with clients in second rela- their respective estates.” sions relating to the application to amend. tionships, a lawyers standards committee The lawyer’s failure to follow up on the Mr Lyon told the committee he did not says. The committee observed that lawyers matter was unsatisfactory conduct, the intentionally breach any professional should have a ‘difficult conversation’ early committee found. requirements, and that he had never read on with their clients about ownership The committee noted that Ms Jachimo s 7 of the Lawyers and Conveyancers Act structures so that the clients’ intentions had suffered financial loss as a result 2006. The committee noted that Mr Lyon will be correctly recorded and to avoid any of Willoughby’s failure to deal with the “confirmed that such a situation involving issues or complaints arising in the future. ownership structure, because she had to him will never arise again and he regrets The committee was dealing with a com- pay legal costs. The committee ordered ever having agreed to help out with the plaint that a lawyer, Willoughby, had failed Willoughby to pay Ms Jachimo $2,805 matter”. However, the committee did not to document the intention of a married compensation and to pay $500 costs. ▪

61 PRACTISING WELL November 2017 · LAWTALK 912

PRACTISING WELL The life-savers that should be in every workplace

BY ANGHARAD O’FLYNN

if someone was to have a cardiac arrest," Rebecca says. All offices are likely to contain a first-aid kit, but an item that is not always on site is an Automated Common misconceptions External Defibrillator (AED). There are a few common myths around AEDs. An AED is an important, life-saving piece of medical equipment used for restarting a heart during a cardiac What if you put the device on but you’re arrest. unsure if the patient requires a defibrillation? Defibrillators are used when a heart's rhythm goes You don’t want to accidentally hurt or kill into an ‘uncoordinated electrical activity'. This is called your colleague while trying to help. fibrillation and occurs during a cardiac arrest. This isn't the case. Unless an AED detects a fibrillating Research conducted by St John in 2015/2016 for its heartbeat, or no heartbeat, it won't go off. Cardiac Arrest Report showed sudden cardiac arrest is the The equipment is quite sophisticated so you're not leading cause of death in adults. It afflicts around 2000 going to hurt anyone should it be applied and it turns adults in New Zealand each year and kills around 1500. out it’s not needed. During a cardiac arrest the heart twitches (fibrillates) and can't pump blood efficiently. A defibrillator delivers CPR alone will restart a heart. an electric current to the heart muscle that is just strong Not necessarily. Some medical television programmes enough to momentarily stun the heart muscle. have misled people on this subject too. If successful, this momentary stun will stop the heart’s Example: if your car's engine stops, you try pumping fibrillation and provide an opportunity for it to resume the clutch a few times. If that doesn't work, you flag beating normally – like a jump-start. down another vehicle, attach some jumper cables and This sounds like a dramatic way of providing help, jump-start it. but AEDs aren’t nearly as dramatic as the large hospital This is because your chances of restarting the engine ones used by doctors on medical dramas. greatly increase when a current is applied; the same can "The AEDs are simple and aimed for members of the be said about a heart. CPR can help somewhat, but it public to use with no or minimal alone won't necessarily help revive someone suffering training/experience," says Rebecca, a heart fibrillation. a Wellington-based paramedic. "They have voice commands for Training the bystander to follow, whereas A cardiac While the AEDs do have easy to follow voice instruc- the ambulance defibrillators can arrest is an tions, sometimes confidence is an issue when using the be put in AED mode or used with unpredictable equipment – especially during such a stressful event. the clinical judgement and timing event. While Many providers offer onsite AED training in New of the paramedic." they are not Zealand including Red Cross, Heart Saver NZ and St John A cardiac arrest is an unpredicta- compulsory The Managing Director of Heart Saver NZ, Mike ble event. While they are not com- to have, an Mander, has 22 years’ experience as a volunteer fire- pulsory to have, an AED, along with AED, along fighter and is an AED specialist. basic training, can prove lifesaving with basic "Being trained is good for confidence levels, so there's should paramedics be unable to get training, can a sense of familiarity about the process should you need to a call-out quickly enough. prove lifesaving to use one. In fact, for every minute without CPR or “Having AEDs available in a range should defibrillation, a patient's chance of survival falls by of locations, where there are large paramedics be 10-15%, which is why we're on a mission to get more numbers of people, or in more unable to get AEDs around NZ," he says. isolated areas where help may be to a call-out "Many people haven't even heard of AEDs, or seen delayed getting there, is important quickly enough. one, never mind trained in using one."

62 LAWTALK 912 · November 2017 PRACTISING WELL

Legal obligations An AED isn't a legal requirement for a workplace, but what are an to kn eed ow a employer's legal obligations should u n bo SUDDEN CARDIAC ARREST: o It occurs when the heart suddenly and they not have the right equipment y ut t unexpectedly stops functioning. Signs include to deal with a sudden cardiac arrest a sudden collapse, sudden unresponsiveness to situation? h touch or sound and abnormal or no breathing. "Whilst many employers do W is the leading cause provide an AED in their workplace, of death in adults #1 there is no requirement to do so, unless the particular surrounding happens to 2000 circumstances were such that a fair people each year in New Zealand and reasonable employer would 2K provide an AED," says Michael Quigg of Wellington firm, Quigg Partners. can happen to anyone, no matter So, while it’s not mandatory to how fit or healthy you are include a defibrillator as part of the office first aid kit now, it might pay kills approx. 1500 to just have a think as to whether NZers every year 1500 it could be a valuable piece of equipment. kills 5x that of the national road toll, every year 5X How many should Thanks to St John for the research in the cardiac arrest report 2015/2016. there be? “This completely depends on how THERE SHOULD BE CHANCE OF SURVIVAL FROM CARDIAC ARREST big your office is,” says Mike Mander. reduces by 10-15% every minute “Rule of thumb is that you want 10,000 that defibrillation is delayed AEDS IN NEW ZEALAND to be a four-minute round trip away from an AED, so if you have multiple CURRENTLY THERE ARE levels, can you get to the AED and PERCENTAGE back within four minutes? 6,000 90% 80% 70% 60% 50% 40% 30% 20% 1 2 3 4 5 6 7 8 9 “Some places have them every AEDS IN NEW ZEALAND MINUTES TO DEFIBRILLATION second floor, to negate this issue. Smaller offices will only need one It takes St John about 7 minutes to 1. AEDs can be used by people with respond to a call, with their AED and, in fact, we've had neighbouring minimal or no training. 2. Best practice is to have an AED businesses band together to buy one locatedRule a 4-minuteof thumb round-trip is that you want to be a to share between them.” awayfour-minute ie two minutes there round and trip away from an AED, so if you two minutes back, for the best Join our "Become a Heart chancehave of survival.multiple levels, can you get to theSaver" AED campaignand to get Cost 3. Using an AED and applying CPR withinback 3 minutes within will dramatically four minutes? more AEDs available to Defibrillators are becoming cheaper. increase a patient’s chance of everyday kiwis. ABOUT AEDS survival. "Now we have models for under $2,000 so most businesses who see the value in having one don't mind [email protected], | 0800 damage, 233 342 replacement| www.heartsaver.co.nz pads and very common in New Zealand. paying that. We often say that the and other maintenance are things In the law profession, there are cost of NOT having one when you that do need to be checked out to those who choose to work well need one is much worse, but we're make sure the equipment is func- past retirement age and who may seeing now that many businesses tioning properly. This is done with be more vulnerable to an attack. see it as being a part of their health a special machine that performs a Considering the installation of and safety responsibilities and just ‘live shock test'. an AED in the workplace could be fronting up with the payment," says Maintenance varies and is some- beneficial long term and they are Mr Mander. thing to discuss with the provider. “A easy to use, accessible and worth the Many AED retailers also provide lot of New Zealand businesses just investment to increase staff safety. a hire system. get us in once a year to do this, and There are many health services they do visual and battery checks you can contact around the country Maintenance monthly as part of their normal H&S if you want more information on As with any piece of medical guidelines,” Mike Mander says. AEDs, such as St John, Heart Saver equipment, maintenance is crucial. Cardiac arrest is sudden, deadly NZ and the Heart Foundation. ▪

63 COURTS November 2017 · LAWTALK 912

COURTS ‘Distributed Courts’ AVL in New Zealand’s Courts

Victoria and Western Australia. Deficiencies were found BY JANE in three key areas: (1) remote participation facilities ADAMS were often substandard (eg, the room was cramped and cluttered); (2) the technology was not always up to par, and (3) witness preparation did not include Chief Justice Sian Elias’ address, Managing Criminal adequate orientation to remote participation (Rowden, Justice, to the Criminal Bar Association Conference in E., Wallace, A., Tait, D., Hanson, M., & Jones, D. 2013. Auckland in August, raised a number of important con- Gateways to Justice: Design and Operational Guidelines for cerns about so-called ‘innovations’ in New Zealand’s Remote Participation in Court Proceedings. Penrith, NSW: criminal justice system over the past decade. The use University of Western Sydney). of audio-visual technology (AVL) in our courts was one of those concerning innovations which Elias CJ identi- Fundamental shift fied. Criminal Bar Association President Len Andersen So what might these findings mean for New Zealand court endorsed the issues raised by Elias CJ, expressing particu- users? The increasing use of AVL represents a fundamental lar concern that AVL could be used for defendants’ first shift to the way our courts operate. AVL has been shown to court appearances (RNZ, Nine to Noon, 11 September 2017). be beneficial for some court users, for example, vulnerable From 1 March 2017, defendants’ appearances in crim- witnesses. But the introduction of AVL ignores the sym- inal procedural matters have been via AVL except in bolic function that the courtroom holds. The courtroom, cases where evidence is called (s 8(1) Courts (Remote through both the architecture and the furnishings, conveys Participation) Act 2010 as amended by the Courts to the user a sense of ritual, authority, and the legitimacy (Remote Participation) Amendment Act 2016). This is of the law. This important function of the ‘justice space’ the default position unless a judicial officer or regis- may be ignored when users only appear remotely using trar determines that the use of AVL is contrary to the AVL (E Rowden, 2015 “Distributed Courts and Legitimacy: ‘interests of justice’. What do we lose when we lose the courthouse?” Law, But how are these ‘justice interests’ to be determined? Culture and the Humanities. 1-19). The Act provides some guidance (s 5), establishing cri- Additionally, AVL may raise constitutional issues, as teria that the judicial officer or registrar must consider, Elias CJ noted in her address. AVL may suit busy judges such as: the nature of the proceeding, the availability and practitioners, and save the government money, but and quality of the AVL, the potential impact of the use there is, she suggests, a ‘risk of the blurring of the distinct of AVL on other parties’ rights and ‘any other relevant role of the courts’. If users only participate remotely, matters’ (with additional criteria where using AVL in there is a risk they will not see the court as a separate criminal proceedings in s 6 and in civil proceedings in arm to the government; instead, an extension of the s 7). AVL use has been considered in a handful of cases government. The development of legal precincts in New in New Zealand, for example recently by Thomas J in Zealand, whereby courts and government agencies Burden v Debonaire Furniture Ltd [2017] NZHC 1553. are co-located on the same site (for example, the new Despite these developments, very little empirical Christchurch Justice and Emergency Services Precinct) research about AVL use in New Zealand’s courts has been further intensifies this risk. undertaken to date. Even so, AVL is increasingly being While both Elias CJ’s address and the Gateways to used right across our court system, albeit sometimes on Justice research focused on the criminal justice system, an ad hoc basis. According to a recent Ministry of Justice these concerns with AVL are applicable across our entire press release, use of its AVL network, which connects 21 court system, such as in family court hearings. The courts to 15 prisons, has increased by more than 50% for University of Otago Legal Issues Centre is beginning remand appearances over the last two years (Ministry to investigate the use of AVL in New Zealand’s courts. of Justice, 2 August 2017). Practitioners are welcome to contact us at the email International studies in this area have raised signifi- below to share their experiences of using AVL in court. ▪ cant concerns with AVL use in the courts. Gateways to Justice, a three-year interdisciplinary Australian Research Dr Jane Adams  [email protected] is a Post- Council project led by Professor David Tait, comprehen- Doctoral Research Fellow at the University of Otago sively examined the use of AVL in court proceedings in Legal Issues Centre.

64 LAWTALK 912 · November 2017 LEGAL INFORMATION

LEGAL INFORMATION Profound insights into early New Zealand law Juridical Encounters: Māori and the Colonial Courts By Shaunnagh Dorsett  Auckland University Press law and where necessary providing  2017 special institutions and legislation REVIEWED BY JEREMY FINN  $49.95 for the indigenous people, including in their relations with settlers) was British Empire and specifically in the moral stance that some aspects Most New Zealand lawyers will not be New Zealand. While the first chapter of traditional laws could not be tol- particularly familiar with details of the legal develop- includes historiographical content erated because they were repugnant ments during the Crown Colony period from 1840 to which may challenge some non-his- to English law. Slavery was one such 1854. This general lack of awareness is substantially due torians, the whole of this section is repugnant institution but there was to the dearth of good historical writing on the period. vital reading for anyone seeking to little agreement on what other mat- Alan Ward’s pioneering 1971 book, A Show of Justice, understand the policy aims and the ters were unacceptable. describing the operation of the Resident Magistrate’s institutions that were created in the As if that were not sufficient to Court and the interaction of magistrates and Māori is fledgling New Zealand colony. make creation of a coherent policy an honourable exception. As Dorsett demonstrates, there in New Zealand difficult, there Even so, everyone will know something of the Treaty was no single monolithic view of was the further complication that of Waitangi (and the notorious judgment in Wi Parata how indigenous persons should be not all iwi had signed the Treaty v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72, though treated. While the general tenor of of Waitangi. As Dorsett reveals, most will not have read David Williams’s excellent book public debate favoured a policy of William Swainson, the colony’s on that case and its back history). Most lawyers will enforcement of British law both in second Attorney-General and a very have come across R v Symonds (1847) NZPCC 388 on the matters affecting settlers only and influential figure throughout the foundations of the settler conception of land ownership disputes or issues involving both 1840s, considered that only those in the new colony. Few will know more than that about indigenous people and settlers, tribes that had signed the treaty the administration of the law in the 1840s and early others considered that attempt- were under British sovereignty; the 1850s, but there may be a general belief that following ing to enforce the full panoply of equally influential George Clarke the acquisition of New Zealand by Britain, English law English law in settler-Māori cases snr, Chief Protector of Aborigines, was extended monolithically over the entire colony. would be as unfair as it was initially took the view that few Māori Such a belief is far from correct. impractical. would consider themselves British Fortunately, the publication of Shaunnagh Dorsett’s Opinion was also divided on subjects, whether or not they had new work Juridical Encounters: Māori and the Colonial whether there should be any signed the treaty. A range of other Courts provides an informed, scholarly but readable attempt to apply English law to viewpoints were advanced by other description and analysis of the shifting legal currents matters solely concerning indige- senior colonial officials and by the which influenced the settler government’s attempts nous people – or indeed whether, judges. to provide a legal structure with which Māori might in districts where the indigenous The early years of the colony can engage, and perhaps more importantly, the extent to population dominated, native law thus be seen as more concerned which Māori exercised the options they had to become should apply not only to disputes with trying to avoid any significant involved with settler courts and settler law. between indigenous people inter conflict until a coherent policy had se but also regulate the conduct of been formulated. It quickly became Whose law? incoming settlers. One stumbling evident to the colonial authorities The book falls into three uneven parts. The first, subtitled block to wide adoption of such a that, while Britain could not enforce “Whose law? Which law?” explains the jurisprudential policy of “exceptionalism” (that is, English law on Māori even if they and ideological background to the extension of British excepting indigenous peoples from had wished to do so, some kind of rule over indigenous communities throughout the some or all aspects of the British exceptionalist regime was essential

65 LEGAL INFORMATION November 2017 · LAWTALK 912

to prevent settlers attempting to use the local courts and Māori participation English law to resolve clashes with Māori in whose midst The last part of the book, and in some ways the most they had settled. The Wairau Incident of 1843 is, I think fascinating, is a detailed account of what the author rightly, seen as a catalyst for Governor Robert Fitzroy’s has labelled as juridical encounters – that is court cases promulgation of the Natives Exemption Ordinance 1844. of every kind in which Māori participated whether as prosecutor or defendant in criminal cases or plaintiff Attempts to avoid friction or defendant in civil proceedings. This part of the book The second part of the book, “Designing exceptional is based on outstanding research into surviving court laws and institutions”, deals with the various attempts records, contemporary newspaper reports and docu- by the fledgling colonial administration to adapt the ments and other archival materials. These accounts are new colonial legal system so as to avoid undue friction inevitably dominated by English-language sources but with Māori and to encourage Māori to engage with the the author has done a fine job in using what records are settler courts of their own volition. As Dorsett lucidly available of Māori participants and of their approach explains, while there was a substantial degree of support to encounters with the colonial courts. As Alan Ward for exceptionalism within the colonial government – and had argued and Dorsett – based on a much wider in the Colonial Office in London – many settlers opposed sample of material – shows, Māori were well aware of any changes to the law or to the local courts which the opportunities, and perils, provided by the colonial were dominated by settler JPs. The author explains two courts and engaged with them for a range of reasons. key ordinances passed in 1844, the Native Exemption Those repeated small scale juridical encounters were an Ordinance and the Unsworn Testimony Ordinance. The essential part of the development of the colonial courts former essentially left apprehension of alleged Māori and colonial law generally. offenders outside the settler towns to local Māori A perfect history book? Not quite. The primary problem chiefs, as well as providing for Māori to be able to avoid is that there is, in places, a degree of repetition of material imprisonment by payment of several times the value which should have been minimised. There is a sense that of goods taken. Both elements of the ordinance were the three parts have been separately written and then extremely unpopular with the settler community. The amalgamated but without sufficient harmonisation of the latter ordinance made it possible for Māori who had material. A particular example is the discussion of the few not embraced Christianity to give evidence in court, cases brought by Māori for “criminal conversation” where something which greatly facilitated both criminal and only a few pages separates some remarkably similar cover- civil proceedings involving Māori. However the Native age. Much less importantly, there are some minor errors in Exemption Ordinance did not long survive Fitzroy’s regard to the names of persons involved. These criticisms recall and the new regime under Governor George Grey. are however quite minor when compared with the scope A different policy was ushered in under the Resident of the book and the extraordinary Magistrate’s Ordinance 1846. One key innovation was scholarship which produced it. the use of “native” assessors to sit with the magistrate This is a book which should be cases solely involving Māori; the other the removal of read by everyone interested in jurisdiction over cases involving Māori from the JPs so These accounts New Zealand legal history or the that only resident magistrates would hear them. The are inevitably three-cornered legal relationships new order proved more popular with settlers and – more dominated by between Māori, the colonial govern- importantly – encouraged a greater number of Māori English-language ment and settlers during the Crown to bring disputes to, or defend cases in, the new court. sources but Colony period, the period in which Progress in this regard, if significantly less than reported the author has choices were made which shaped by Grey to the Colonial Office, was sufficient for him to done a fine our legal system. ▪ claim there was no need to bring into force the provisions job in using in the New Zealand Constitution Acts of 1846 and 1852 what records Jeremy Finn is a Professor which would have created areas where all inhabitants are available Emeritus at the University of – Māori and settler alike – would have been governed of Māori Canterbury where he taught law under Māori law. The consequence was, of course, that participants between 1978 and earlier this year. the implementation of responsible government led over and of their His continuing research interests time to the abandonment of any exceptionalist policies approach to include New Zealand legal history, and prevented widespread application or preservation encounters with criminal law and procedure, crim- of Māori customary law – with consequences which the colonial inal justice, contract and law and are with us yet. courts. natural disasters.

66 LAWTALK 912 · November 2017 CLASSIFIEDS · WILL NOTICES

Read, James Keith Would any lawyer holding a will for the above- named, late of Kimbolton Road, Feilding, Beneficiary, who died on 2 October 2017, please contact Mark Fletcher, Rex; and Will Richardson, Lawyer, Marton: Fletcher, Lois, nee Workman  [email protected]  06 327 8606 Would any lawyer holding a will for either of  PO Box 216, Marton 4741 - DX PA84503 notices the above-named, late of 34 Old Taupiri Road, Ngaruawahia, Rex who died in 2005, Lois who died in Reynolds, Judy (Judith) Ann 2009, please contact Eugene Raika, The Law Lounge: Would any lawyer holding a will for the above-named,  Barrack, Gregor Allan [email protected] late of 1031 Matata Road, Bay of Plenty, Edgecumbe  09 551 6120 3191, Probation Officer for the Corrections Cobb, Deidre Josephine  PO Box 33 241, Takapuna 0740 Department, Whakatane, born on 11 December Coulter, Lynda isabelle 1957, who died on 18 August 2017, please contact Fleming, John Naismith Foster, Doreen Rae; Alicia Reynolds: aka Foster, Rae Fletcher, Rex  [email protected]  027 327 9270 Fletcher, Lois; nee Workman Would any lawyer holding a will for the above-named,  6a Marsh Street, Tauranga 3110 Foster, Doreen Rae late of Wellington, who died on 26 October 2015, aka Foster, Rae please contact Fleur Rowe, WLC Brierley Lawyers: Smith, Gregory Patrick Hunter, Leo Ernest  [email protected]  04 389 2571 Smith, Greg Patrick  Jonas, Shelagh Catherine PO Box 7196, Newtown, Wellington 6242 Would any lawyer holding a will or having any record aka Collings, Shelagh Catherine of having held a will for the above-named, late of Hunter, Leo Ernest Keng, Chung-Hua 30 Augustine Street, Waimate, born on 18 July 1963, Would any lawyer holding a will for the above-named, who died on 22 September 2017, please contact Nikki McDowell, William Emerson late of Auckland, Retired, born on 22 September Canham, Dean & Associates, Solicitors: Morison, Samuel Benjamin William 1947, who died on 22 February 2017, please contact  [email protected]  03 434 5128 Pattison, Maurice Sharleen Te Runa, Public Trust:  PO Box 242, Oamaru 9444 - DX WA32523 Read, James Keith  [email protected] Reynolds, Judy (Judith) Ann  09 985 6850 Smith, Roger  Smith, Gregory Patrick; aka Greg 6 Alderman Drive, Henderson, Auckland Would any lawyer holding a will for the above-named, Smith, Roger late of Mangere, Auckland, born on 25 September Jonas, Shelagh Catherine; 1953, who died on 26 September 2017 aged 64 years, Tanoa, Rima Kapea - nee Tangimetua aka Collings, Shelagh Catherine please contact Maggie M Winterstein, Barrister: Tewake, Benjamin Hau Would any lawyer holding a will for the above-named,  [email protected] Vaafusuaga, David formerly of Auckland, Whangarei and Tauranga, born  09 262 1136 ext 8 Vekene, Kura on 14 March 1965, who died on 31 August 2017, please  PO Box 76500, Manukau 2241 contact Raewyn Miller, Keam Standen Solicitors:  [email protected]  07 577 9959 Tanoa, Rima Kapea, Barrack, Gregory Allan  PO Box 998, Tauranga 3140 - DX HP40021 nee Tangimetua Would any lawyer holding a will for the above-named, Would any lawyer holding a will for the above-named, late of Katikati, born on 8 October 1959, who died on Keng, Chung-Hua late of 5 Walker Terrace, Hamilton, born on 15 July 23 September 2017, please contact Raewyn Miller, Would any lawyer holding a will for the above-named, 1955, who died on 31 December 2005, please contact Keam Standen Solicitors: late of Taichung, Taiwan, Teacher, born on 22 March Hayley Revell, McCaw Lewis:  [email protected]  07 577 9959 1967, who died on 22 August 2017, please contact  [email protected]  PO Box 998, Tauranga 3140 - DX HP40021 Royal Reed, Prestige Lawyers:  07 958 7472  [email protected]  PO Box 9348, Hamilton 3240, DX GP20020 Cobb, Deidre Josephine  09 303 4400  Would any lawyer holding a will for the above-named, PO Box 305 379, North Shore City 0757 Tewake, Benjamin Hau late of Martinborough, who died on 18 September Would any lawyer holding a will for the above-named, 2017 aged 90 years, please contact Jacqui Mikkelsen- McDowell, William Emerson late of Te Karaka Point, Punguru, Master Carver and Stride, Rasch Leong Lawyers: Would any lawyer holding a Will for the above- Builder, born on 15 December 1923, who died on 25  [email protected]  04 387 7831 named, late of Palmerston North who died at Lower March 1994, please contact Henry John Tewake (son):  PO Box 14304, Kilbirnie, Wellington 6241 Hutt on 29 August 2017 please contact Fenella Devlin,  [email protected]  021 260 6647 Evans Henderson Woodbridge  3 Savona Drive, Flatbush, Auckland 2016 Coulter, Lynda Isabelle  [email protected]  06 327 7159  Would any lawyer holding a will for the above-named, PO Box 326, Marton 4741 Vaafusuaga, David late of 66 Beresford Street, Bayswater, Auckland, Would any lawyer holding a will for the above-named, Company Director, born on 13 November 1952, who Morison, Samuel Benjamin William late of 25 Catkin Crescent, Papatoetoe, Auckland, died on 21 July 2017, please contact Patrick shanahan- Would any lawyer holding a will for the above- Financial Administrative Manager, who died on 9 Pinker, K3 Legal: named, late of Auckland, Entertainer, who died on September 2017, please contact Michael Hawkins,  [email protected]  09 366 1366 30 September 2017 aged 40 years, please contact North Harbour Law:  PO Box 2137, Auckland 1140 Joanne Lovett, Franklin Law:  [email protected]  09 427 0550  [email protected]  09 237 0226  PO Box 104, Orewa 0946, DX BP60001 Fleming, John Naismith  PO Box 43, Pukekohe 2340, DX EP77020 Would any lawyer holding a will for the above-named, Vekene, Kura late of Unit 4, 15 Heremia St, Henderson, born on 17 Pattison, Maurice Would any lawyer holding a will for the above-named, November 1932, who died on 20 October 2017, please Would any lawyer holding a will for the above-named, late of 23 Cottingham Crescent, Mangere, Auckland, contact Blackwells Lawyers: born on 5 September 1933, previous occupation born on 5 March 1940, who died on 28 August 2017,  [email protected] Joiner, please contact Martin Wall: please contact Braden Matson, Sutcliffe Matson Law:  09 522 2402  [email protected]  06 870 7820  [email protected]  09 279 8351  PO BOX 9325, Newmarket, Auckland 1149  PO Box 745, Hastings 4156  PO Box 23570, Papatoetoe - DX EP74503

LEGAL JOBS · CLASSIFIEDS November 2017 · LAWTALK 912

Solicitor Looking for a new challenge in 2018? This is a unique opportunity for a motivated and experienced Solicitor to join the Bay of Plenty Regional Council’s legal team. Spend time giving back to the profession you This is an intermediate role with organisation-wide love responsibilities and a mandate for assisting Auckland instructors required for Profs onsites capability and understanding of legal matters across the Council. The Institute of Professional Legal Studies invites applications from Auckland- Our complex regulatory frameworks provide the based lawyers wishing to pass on their knowledge of, and passion for, the law to the next generation. scope for using your skills and developing new ones across a wide range of corporate activities including You must be available for at least two weeks at a time, several times throughout procurement, risk management, and number of the year, to teach in our Albert Street learning centre.

functional areas such as RMA, Biodiversity & You will need to be a people person who has a desire to give back to the Official Information. profession. You will also need to be organised, efficient and enjoy: You’ll need at least 3-5 years post qualification . The challenge of shaping law graduates into great lawyers . Working as part of a highly motivated national team experience, excellent technical skills, drafting and . The opportunity to pass on your passion for the law negotiation experience. The position is located in Tauranga with a salary You must have: . Recent NZ experience (a wider range of experience is preferable) midpoint for this position $84,000 to be determined . Experience in mentoring junior lawyers depending on the skills and experience of the successful applicant If this sounds like just the challenge you were looking for, please email your resume and covering letter to [email protected] See our website www.boprc.govt.nz for a copy of the job description and to submit applications before 5pm, Sunday 26th November.

TENANCY ADJUDICATORS PRACTICE FOR PROPERTY LAW Tenancy Adjudicators are required for the Tenancy Tribunal in the Auckland and Manawatu (Palmerston North and PARTNER, MERGER OR SALE Whanganui) areas. These are part time positions. The standard commitment in both locations is one to two Provincial general practice in growth area of the days per week. Two or more days a week may be available in Lower North Island. Superb, loyal and well qualified both areas and flexibility to travel to other locations would staff. Established and growing for 35 years. be an advantage.

The successful applicant will have or be eligible to hold • Wills • Trusts • Conveyancing • Litigation a practicing certificate as a barrister or solicitor, or have special knowledge or experience that would make them • Estates • Family • Immigration • General capable of performing the role. Applicants will need to have strong inter-personal skills and excellent written Would suit a firm wishing to increase turnover English. They must have proven time-management skills in a strategic area and aquire expert staff or an and efficient work habits, the ability to conduct a judicial ambitious property practitioner seeking a lifestyle hearing and a strong sense of fairness. They must be able proximate but not in the city. to demonstrate an ability to make clear, correct decisions. Computer literacy and the ability to type are essential. ▸ Confidential Advertiser No. 17-8 (c\- Christine Wilson) Application forms can be downloaded at: http://www.justice. email: [email protected] govt.nz/statutory-vacancies/. For more information about the position, contact Tania Togiatama, PA to Principal Tenancy Adjudicator – email: [email protected] or phone (07) 921 7478. Applications for the position close at 5.00pm, Thursday 16 November 2017.

68 LAWTALK 912 · November 2017 CLASSIFIEDS · LEGAL JOBS

WE HAVE GLOBAL REACH

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VACANCY – CORPORATE SENIOR ASSOCIATE Clarity Consulting Group can Work with major New Zealand and international corporate entities and financial confirm that an excellent institutions on a varied range of corporate and commercial transactions and corporate advisory work. In this role, you will work alongside leading law salary package is on offer, firm partners, who regularly advise on significant transactions in the which comfortably sits New Zealand market. at the top end of the If you have 6-10 years of corporate post-admission experience local market. at a private practice firm or in-house legal team, this may be the ideal role for you.

Apply Now Clarity Consulting Group is the specialist recruitment agency retained to identify excellent candidates for this particular role. For more information, please email your queries to Frieda at [email protected].

To speak with a member of our team CPD Calendar Phone: 0800 333 111

PROGRAMME PRESENTERS CONTENT WHERE WHEN CIVIL LITIGATION

MEDIATION FOR Virginia Goldblatt This workshop builds on the NZLS CLE workshop Mediation Auckland 17-19 Nov LAWYERS PART B – Geoﬀ Sharp for Lawyers Part A which provided opportunity to CIVIL/COMMERCIAL Denise Evans understand the process of mediation and to learn to think like a mediator – not a lawyer. It provides further opportunity 15 CPD hours to observe a civil mediation, to dissect it and to practise mediation skills.

INTRODUCTION TO CIVIL Roderick Joyce QSO QC This workshop is an excellent opportunity for recently Auckland 2 27-28 Nov LITIGATION SKILLS Sandra Grant admitted practitioners to develop practical skills in civil litigation in an intense small-group workshop. You will learn 9 CPD hours 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. FAMILY

INTRODUCTION TO John Adams This workshop will show you how to run a domestic violence/ Christchurch 6-7 Nov FAMILY LAW ADVOCACY Usha Patel interim parenting case from go to whoa. Through precedents, Wellington 13-14 Nov AND PRACTICE videos, a book of materials, and performance critique, this course, recommended by the Legal Services Agency, is sound, Auckland 20-21 Nov 13 CPD hours participatory and proven.

MEDIATION FOR Virginia Goldblatt This workshop builds on the NZLS CLE workshop Mediation Auckland 17-19 Nov LAWYERS PART B – Geoﬀ Sharp for Lawyers Part A which provided opportunity to FAMILY Denise Evans understand the process of mediation and to learn to think like a mediator – not a lawyer. It provides further opportunity 15 CPD hours to observe a civil mediation, to dissect it and to practise mediation skills.

GENERAL

AML/CFT ACT – Kate Reid Lawyers and Conveyancers must be compliant with their Live Web Stream 28 Nov PRESENTED BY THE Anti-Money Laundering and Countering Financing of SUPERVISOR – THE DIA Terrorism Act obligations by 1 July 2018. The Department of Internal A airs (DIA) will be the supervisor. 1.5 CPD hours In this free Live Web Stream, hear from the DIA on the AML/ CFT Act – what you need to know.

HOLDING DIFFICULT Hilary Bryan Today’s lawyer needs to be armed with much more than Webinar 29 Nov CONVERSATIONS a knowledge of the law, a sound grasp of business skills is essential. This exciting new series will cover key topics 1.5 CPD hours which will equip you with the know-how and practical skills vital to being a positive force in today’s competitive business world. ‘Holding Di cult Conversations’ is one of the series. This webinar will give you clear and well thought- through approaches to planning, and then holding, di cult conversations.

CPD TOP-UP DAY Chairs: Designed for the busy general practitioner to “top-up” your Stephanie Marsden year’s CPD. A one-day programme o ering 7 hours face-to- Christchurch 13 Feb 7+3 CPD hours Steph Dyhrberg face CPD together with a bonus 3 hour Online CPD, for you Wellington A 14 Feb Jane Meares to complete when and where it suits. Whatever your level of Lope Ginnen experience, the programme will provide practical advice on Wellington B 14 Feb hot topics across a range of practice areas, with a regional Auckland 15 Feb focus and presented by an impressive line-up of speakers. Live Web Stream 14 Feb

PRACTICE AND PROFESSIONAL SKILLS

READING ACCOUNTS Lloyd Austin A workshop to enable you to unlock the mysteries of Auckland 6-7 Nov AND BALANCE SHEETS fi nancial documents, gain an insight into the world of Hamilton 8-9 Nov accounting and make you more e ective and confi dent Christchurch 13-14 Nov 7 CPD hours when advising your clients on fi nancial matters. Wellington 15-16 Nov

For FULL CPD calendar see www.lawyerseducation.co.nz To speak with a member of our team Online registration and payment can be made at: Phone: 0800 333 111 www.lawyerseducation.co.nz

PROGRAMME PRESENTERS CONTENT WHERE WHEN PRACTICE AND PROFESSIONAL SKILLS

TRUST ACCOUNT Philip Strang To become a Trust Account Supervisor you must pass Auckland 14 Nov SUPERVISOR TRAINING Ben Potaka assessments set by the Law Society (reg 19 Lawyers and Christchurch 23 Nov PROGRAMME Conveyancers Act (Trust Account Regulations) 2008). The training programme consists of 40-50 hours of 7.5 CPD hours self-study learning modules to help you prepare for the assessment day.

LAWYER AS NEGOTIATOR Jane Chart Negotiation is a vital skill for every lawyer and improved Auckland 15-16 Nov negotiation skills can help avoid unnecessary litigation and 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.

FLEXIBLE WORKING FOR Julia Shallcrass Flexible working is one of the most e ective ways to Webinar 22 Nov LAW FIRMS increase diversity and productivity within legal practices. While there are many beneﬁ ts, these arrangements often 1 CPD hour create challenges that need to be addressed. This webinar provides practical guidance for creating ﬂ exible working arrangements to engage a productive workforce as well as how to manage key challenges that are likely to emerge. PROPERTY

EPA FORMS – WRAP UP Theresa Donnelly The new EPA forms went live on 16 March 2017, as a result Webinar 6 Nov Annette Gray of changes to their Regulations. Love them or hate them, 1.5 CPD hours they are here to stay, and you need to use them in ways that best work for you and your clients. Feedback on the forms indicates there are parts that need further explanation and guidance. Drawing on this, the presenters will take a practical approach and address the issues that you have found problematic.

TRUST ADMINISTRATION Ken Lord It is highly likely that New Zealand has more trusts than Webinar 21 Nov – TRANSITION POINTS David McLay any other country per capita and there are signiﬁ cant AND CURRENT PRACTICE issues emerging with their administration coupled with increasing rigorous expectations. This webinar will provide 1.5 CPD hours you with practical advice for administering trusts whether you are acting in the role of a lawyer or a trustee and also consider the key themes emerging from the case law and the implications for practitioners.

WINDING UP A TRUST Greg Neill The landscape in relation to family trusts has changed Webinar 30 Nov Ala Sonti signiﬁ cantly in recent years. Recent legislative developments 1.5 CPD hours can mean that trusts are no longer ﬁ t for their original purpose. This webinar will outline the key issues involved in winding up a trust including reviewing the trust deed and the possible tax implications involved.

LAND TRANSACTIONS – Peter Barrett This webinar will provide both legal and accounting Webinar 5 Dec TAX COMPLIANCE Mike Brunner perspectives about tax statements, the bright line test, RLWT and GST issues on the sale & purchase of land. You 1.5 CPD hours will gain a sound understanding of what tax information is required for land transactions and how to avoid tax compliance headaches.

COMMERCIAL LEASING Stella Chan Whether acting for a landlord or a tenant, it is always the Webinar 6 Dec UPDATE Michael O’Flaherty priority of the commercial leasing lawyer to help negotiate the best terms and conditions with the aim of ensuring your 1.5 CPD hours clients are able to achieve their objectives. This webinar will focus on the ADLS lease form in addressing speciﬁ c issues related to; agreement to lease, deed of lease, variation of lease, assignment, and sublease. PUBLIC

JUDICIAL REVIEW Francis Cooke QC Judicial review proceedings challenge decisions made by Christchurch 6 Nov public, private and voluntary organisations. This seminar Wellington 7 Nov 3.5 CPD hours takes a practical approach to the principles and processes of judicial review and is a must for practitioners in the public Auckland 8 Nov law area or who advise decision-makers. Webinar 7 Nov 2 CPD hours

For FULL CPD calendar see www.lawyerseducation.co.nz To speak with a member of our team CPD Calendar Phone: 0800 333 111

PROGRAMME PRESENTERS CONTENT WHERE WHEN IN SHORT

ASSET PROTECTION – Lady Deborah The presenters will consider some of the key strategies that Auckland 14 Nov DEATH & DIVORCE Chambers QC you can adopt in order to help protect your clients’ asset Live Web Stream 14 Nov Sharon Chandra base with a focus on major changes in their circumstances 2 CPD hours through either a spousal breakup or death. This will include an outline of how spouses can use Contracting Out Agreements as a key asset protection tool in this regard, including looking at the circumstances when they might be susceptible to challenge, and the steps that we can take as practitioners to minimise or prevent this from happening.

EMPLOYMENT LAW Maria Dew This seminar will be invaluable for employment lawyers, Auckland 23 Nov UPDATE Stephen Langton as these subject-matter specialist presenters address the Live Web Stream 23 Nov emerging issues in the employment law jurisdiction, and 2 CPD hours the key cases over the last 12 months. Their presentation and written paper will look at topics like new claims that are now being brought in and determined by the Employment Institutions; the High Court’s increased involvement in employment claims; the contractor/employee/volunteer status claims and the changing nature of workforces; the rise of the breach of settlement claim; MBIE’s “minimum entitlement” audits; some Employment Court process points (like powers and costs); and a round-up of new and pending “employment” legislation.

REGISTRATIONS OPEN! CPD Top-Up Day 2018 EARLY BIRD REGISTRATION ENDS 23 JAN 2018 | 7 + 3 CPD HOURS Get practical advice on hot topics, across a range of practice areas and with a regional focus. Busy practitioners - top up your CPD! This one-day programme gives you 7 hours face-to-face and a bonus 3 hours Online CPD for you to complete when, and where, it suits you 120+ Online modules to choose from.

For FULL CPD calendar see www.lawyerseducation.co.nz LIFESTYLE November 2017 · LAWTALK 912

LIFESTYLE Panama and other hats and a plug for a city that deserves one

Wellington practitioner and hat importer Richard Fletcher tries to explain his love of hats, and Ecuador

through in rush hour. Traffic is It all started with a book – Tom somewhere between the regi- Miller’s The Panama Hat Trail. That mented speedway of downtown partly led my wife and I into the Santiago (do not try and cross the hat importing business, a recent road against the lights) and Lima’s trip that followed some of the almost suicidal madness. Traffic is same route, and insights into how one example of the culture shock important hats are on the western that hit us as newcomers to South side of the Andes. On the way, we America – even though we had been learned how little we knew about selling the hats for several years. Put many things, and quickly realised very simply, we had to turn our that stepping outside one’s comfort thinking on its head. zone can lead to interesting results. Gateway to the Galapagos Islands First things first: Panama Hats do for many tourists, Guayaquil, for us, not come from Panama – this is one was the base to meet our suppliers of the many myths that surround – Ecua-Andino Hats – and to head to this legendary hat. They are from parts slightly north to see the step Ecuador and we were off to see how by step process of what remains a they are made. largely cottage industry – making ▴ The toquilla palm only grows in an area two But getting to Ecuador – a rela- quality Panama Hats. hours north of Guayaquil tively small South American country People have lived on this coast – is a little difficult. Our route was since about 3500 BC. From about has developed its own special something. via Santiago in Chile to Guayaquil, the 16th century locals have been Adding to the mystery, the toquilla palm is not really Ecuador’s edgy, often underrated, making something like Panama a palm, and the only places it can grow to be made into main commercial centre. Hats from a local plant – the toquilla Panama Hats are small plantations around Montecristi, a About twice the size of Auckland palm. couple of hours drive north of Guayaquil. People tried to and with a similar spread, much What we now know as the transplant the palm to make hats. But, as locals smilingly of Guayaquil’s action centres on Panama Hat largely developed in the note, no one has been able to do it. Malecon 2000, a boardwalk along 19th century as Ecuadorean entre- Fitted out with overalls, gumboots and gloves, covered the Guayas River, and the adjacent preneurs saw a market for their hats in lotions, all to keep the mosquitos away, and wading business and shopping area. Widely that centred on the Panama Isthmus, through deep mud to get to the plantation, one seriously acknowledged as one of the greatest be it for would-be California gold wondered why anyone might want to try. Then you Latin American urban design pro- miners, people building the Panama see the plants and the first step, stripping the leaves jects ever, the Malecon integrates Canal or what became Panama Hat and the magic of what will become a genuine Panama older monuments with modern aficionados. Somehow, imitations Hat begins. sculptures, public areas, entertain- just did not make the grade even if Next, in villages that specialise in this part of the ment centres and museums. At they almost looked the same. The process, is boiling the palm strips in vats and drying 27 degrees in the cool season the weave and feel of the paja toquilla is them for weaving. Other villages specialise in weaving. climate is rather pleasant. just different. Add to that the myths Pile, near Montecristi, has the finest weavers in Ecuador. Guayaquil’s edginess comes and you see that the Panama Hat Some of these hats take eight months to weave. These

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▴ These ladies work on a crochet hat ▴ The Malecon 2000, a boardwalk that is acknowledged as one of the greatest urban design projects in Latin America are called Montecristi Hats, even though very few are compliment to the already popular Panama Hat summer range. Again, the made there. Other hats are woven in Cuenca, southeast idea is adding an edge to tradition. ▪ of Guayaquil. Ecua-Andino’s focus is on supporting traditional Would-be hat aficionados can contactRichard Fletcher at  richard. weaving and related methods, while using modern [email protected] marketing and distribution to get quality product to buyers all over the world. Also, Ecua-Andino has been exploring new products. An alternative that, unlike woven hats, can be rolled and Hats and Myths squashed into your suitcase is a crocheted hat. These and Panama Hats are made in Ecuador, not Panama. coloured Panama Hats take tradition and add a little edge. People building the Panama Canal wore hats from Ecuador that They have been adding a new dimension to the more may have led to the hats being called Panama Hats. traditional styles of Panama Hat. Ecua-Andino has also Theodore Roosevelt wore a “Panama” hat when visiting the made a range for Emelec, one of Guayaquil’s two major Panama Canal construction. football teams and specialist promotional hats for Cartier The best Panama Hats are made in Montecristi. The palms that and various sports events including the French Tennis form the base for the hats grow around Montecristi and many Open. Brand “ambassadors” include singer Katy Perry. high quality hats are woven in the area. Though some are But Ecuador is not just about Panama Hats. From the finished there it is more likely the hat has been finished further coast to the High Andes that divide western Ecuador south, often in Cuenca. from the Amazon Basin and down into the jungle, hats Panama Hats are “made” in several places. The raw material is feature everywhere. For those in the know, different hats grown in one place, boiled and dried in another, woven and can tell you which village someone comes from. Hat finished in others. stalls at weekly markets are almost as common as food Panama Hats are not made from straw. They are made from stalls selling fruit, vegetables and meat of various kinds. toquilla palm. Hats range from women’s mini-panamas and boaters Good Panama Hats can be rolled up. But no supplier of genuine to more traditional Andean fedoras. In the High Andes, Panama Hats recommends that you roll up their hats. Indeed, traditional outfits often match alpaca or wool ponchos one we spoke to in Quito has stopped supplying balsa wood with sheep’s wool hats. Our hat check took us up to boxes unless a purchaser really insists. 4,000m on various active and dormant volcanoes. You can roll and squash crocheted hats. In the past couple of years Ecua-Andino has been UNESCO has recognised the legend through adding the traditional building on the Andean hat tradition to develop a line weaving method to its list of World Cultural Heritage items. of fine wool hats that are both soft and durable, a winter

75 November 2017 · LAWTALK 912

LIFESTYLE Lawyers do surf… … and an Easter 2018 national competition will present the evidence

BY NICK able to stand up on a board, and he comes together beautifully, like a BUTCHER was right,” he says. spiritual ballet on the sea,” he says. As Adam got more involved in the waves, it turned out there was Surfing and a There’s a night scene on a sandy beach during the a fraternity of lawyer surfers in the balanced life classic original Point Break movie where the undercover region. “Hell yeah, there are many Often in the legal sector, lawyers FBI agent Johnny Utah says he went to law school. He is who surf. You know, if we all lived in are reminded of what it means to talking to the surfers otherwise known as the criminal Wanaka, we would all probably ski. be ‘practising well’ and there have group the Ex-Presidents. “Legal work can have some high been plenty of examples of when The film’s protagonist, Bodhi says “You’re a lawyer, pressure moments. Surfing is the it appears some lawyers haven’t well at least you’re surfing”. Another of the Ex-Presidents complete antithesis. Obviously followed that philosophy so well. chimes in, “lawyers don’t surf ”, and Bodhi quickly there’s the physical aspect, but Mr Simperingham says surfing replies, “this one does”. there’s also a spiritual aspect to it helps toward a balanced life. And in New Zealand they can be found, especially in in similarity to yoga. Sometimes I’ll “You’re dealing with stress, dis- the North Island’s east coast. be out at northern Makorori beach putes, conflict and crime, whereas One of those is Adam Simperingham, a partner at the and it’ll just be me, or perhaps one with surfing you’re dealing with Gisborne law firm Woodward Chrisp. other surfer. What a way to unwind. nature and there’s the physical The 47-year-old had never surfed until he moved to At seven in the morning you’ve got outlet to it. I think having some sort sunny Poverty Bay but caught the bug once he got a the sun coming up over the horizon of physical activity that gives you a whiff of the ocean on his doorstep. and hills, it’s spookily cool.” buzz is essential to practising well Along with litigation, a big chunk of his legal work is He says it gives him time to think as a lawyer.” in criminal defence, so surfing is an ideal escape from about how the waves have been cre- He laughs as he says one of the the often hectic courtroom atmosphere. ated by the wind and have rolled in best things about surfing is that he Adam moved to Gisborne in 1999 after five years of from the other side of world across can keep his board in the basement practising law at a large law firm in Auckland. the ocean. deeds room at the law office. “I randomly got a job as a Crown Prosecutor in “Then there’s the surface of the “Not too many people get to keep Gisborne. People said it’s the G-trap in that once you board and balancing on it, it all their board at work.” go there you can’t leave. That’s how it has been for me. I intended to go there for a couple of years. Someone said it would be career suicide to stay longer but I think I died and went to heaven to be honest,” he says. So, 18 years later Adam and partner Nicola Pittar have five teenage children. The family live close to Wainui Beach and he still manages to fit surfing into his busy work and family life. How a city boy became a surfer “Do you surf, mate?” Surfing for Adam Simperingham came about because that seemed to be the question most people would ask him when he arrived in Gisborne. “I borrowed a board for about two years and couldn’t ride it for love nor money. I then had some lessons with a guy who lives on my street and teaches surfing. He was American and also a physical education teacher at high school. His guarantee was that all people will be

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The law office is one kilometre from Roberts Road, for the event. “They’re used to running events. which is a mellow surf break. His children have also “Those two beaches offer a mas- We hold a lot of them,” Mr Ryan got into surfing and last summer Adam and one of his sive variance in waves. We could says. It will also be divided into age teenage sons went on a surfing trip to Mexico. “It was find that at one end they’re up to groups and there will be both men’s just amazing, we were taken out in a boat to the waves, three metres high and yet at the and women’s divisions. “Everyone the biggest I’ve ever ridden,” he says. other end the waves are a metre will be catered for including long- which is more what we are wanting board and shortboard events.” The surfing competition just for lawyers for the events.” There’ll also be a stand-up paddle During Easter 2018 (31 March–1 April), the New Zealand board event. Lawyers Easter Surfing Festival will take place in High standards Many of the members are also Gisborne. The Gisborne Boardriders Club is backing the It’ll be just like the surfing compe- surf lifesavers so there will be no event and while it’s a competition, the main objective titions on television. shortage of hands on deck or sand is to get lawyer surfers of all levels involved and on “No different to the world surf as it will be. the water. Kelly Ryan is the Gisborne Regional Surfing league,” Mr Ryan says. The Gisborne Boardriders Club is Development Manager and part of the festival organising The World Surf League judging affiliated with Surfing New Zealand, team. criteria was rolled out at all events and holds both public liability and “We know there are lawyers who surf throughout in 2010. Judges analyse the follow- statutory liability insurance. It’s also the country and we want to get them involved. It’s as ing elements when scoring waves: covered by ThinkSafe and has a com- serious as you want to make it. The most important part • Commitment and degree of prehensive and regularly monitored is taking part in the event,” says the former national difficulty, health and safety policy. All contest- longboarding surf champion. • Innovative and progressive ants will sign an online waiver on The plan for the Easter competition is to include a manoeuvres, entering. For further details go to trophy for the overall winner and also the group which • Combination of major www.gisborneboardriders.com performs the best. manoeuvres, Surfing lawyers’ events are Surfers will need to tick which area of law they prac- • Variety of manoeuvres, not new. In Australia there is an tise in when they enter the competition. • Speed, power and flow. Australasian Surfing Lawyers “So we might link criminal and family lawyers against The Gisborne Boardriders Club has Association. They hold events and perhaps commercial and property lawyers; independent many members and a large pro- even feature big names such as bar and partners and recently admitted lawyers on their portion of them have been trained Nat Young who was a four times own,” he says. to judge surfing competitions, so world champion and three times Makorori or Midway beach are the location choices they’re up for the challenge. Australian champion. ▪

77 LIFESTYLE November 2017 · LAWTALK 912

▴ Caucasus Mountains - Ananuri Fortress and Zhinvali Reservoir

LIFESTYLE Georgia Snapshot

BY DAVID JOSLAND

Persians under Agha Mohammed Georgia is a country steeped in Khan, and was finally subsumed into culture and history – from its the Russian Empire in 1801. eclectic and historic capital, Tbilisi, Today, anti-Russian graffiti to its churches and monasteries appears on the walls of many ▴ The paintings “Imereti – My Mother” (1918, oil on surrounded by spectacular moun- buildings. Kala, or the Old Town, canvas, 139x157 cm) by David Kakabadze (pg 80) tainous scenery. Add a museum has many stylish cafes, restaurants and “Fisherman” (1908, oilcloth, oil, 111x90 cm) dedicated to one of the world’s and shops in pedestrianised side- by Niko Pirosmanashvili (above) are preserved in most famous political leaders, the streets. Beyond these are traditional the collections of the Georgian National Museum remains of an ancient city carved Eurasian wooden buildings, mostly in Tbilisi, Georgia. Thank you to the Director of into rock, traditional food once eaten residential, with cantilevered, the Museum, Professor David Lordkipanidze, for by shepherds tending their animals ornately carved balconies and spiral granting permission to reproduce the images of high in the Caucasus Mountains, and staircases. Many are in states of these paintings in this article. a thriving wine industry – Georgia disrepair and await restoration. has a lot to offer the visitor. Dotted around the city are build- Soviet forces killed 19 hunger striking protestors in 1989 ings that are linked to its history. and where Georgian independence was declared in Tbilisi These include the underground red- 1993. The building was stormed during the 2003 Rose Architecturally and culturally, Tbilisi brick Abanotubani sulphur baths Revolution. Also on Rustaveli Avenue are the historic is a mixture of old and new. Walking and the above ground Orbeliani Opera House, which is Moorish in appearance, and around it’s hard to believe that it has baths, the nearby Muslim Mosque, the cross-cupola Metekhi Church of the Virgin built by been sacked or destroyed more than which was the only mosque to Demetre II (the Self-Sacrificer) between 1278 and 1289. 29 times in a 1500 year period and survive the Soviet purges in Tbilisi, Overlooking the city, and reached by aerial cable-car, is has fallen victim to invasions from the Wedding Palace (now a private the Narikala Fortress which was built in the 4th century Arabs, Mongols and Turks. Tbilisi was residence) and the Old Parliament by the Persians and extended in the 8th century by the completely destroyed in 1795 by the Building on Rustaveli Avenue, where Arab emirs. Close by is the giant Statue of Mother Georgia

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who overlooks the city – sword in one hand and bowl of wine in the other. The Kura River, which divides the city in half, can be crossed on foot via the wavy, glass-topped “Peace Bridge”, designed by the Italian architect Michele De Lucchi. The large park beyond the bridge, which is popular with locals, is dominated by two large, gleaming steel tubes. These form the Tbilisi Theatre, designed by De Lucchi’s compatriot, Massimiliano Fuksas. Just within view are the multiple mushroom-shaped cantilevered roofs of the Tbilisi Public Service Hall, ▴ Larva Monastery - Part of David-Gareja Complex 17th centuries and contains two 17th which Fuksas designed with his wife century churches, one of which con- Doriana. in a small mud-brick house and the young Stalin resided tains spectacular but badly preserved with them in Gori for the first four years of his life. The frescoes of the Last Judgement. The National Gallery Joseph Stalin Museum is a shrine to the Russian leader’s Perhaps the most atmospherically The National Gallery on Rustaveli cult of personality and the small house can be viewed stunning religious site in Georgia is Avenue in the capital houses an in its grounds. the Church of Tsminda Sameba, or extensive collection of the work Nearby is Stalin’s private Pullman railway carriage, The Holy Trinity. This is a wonderful of Georgia’s greatest painter, the in which he travelled to the Potsdam Conference in 14th century church and bell-tower self-taught Niko Pirosmanashvili. 1945. The Museum’s gloomy, poorly lit rooms display complex atop a hill overlooking the Pirosmani, as he is commonly busts and photographs of Stalin from throughout his small town of Kazbegi, which is referred to, started his artistic career life. There are even carpets with his image woven into located at a height of 1,850 metres as an itinerant painter of advertising them. One room contains furniture from Stalin’s first near the border with Chechnya and signs for shops and taverns. He cap- office in the Kremlin, when he was Peoples’ Commissar Russia. A steady walk with pilgrims tured the everyday life of Georgian for Nationalities in 1918. On display in the final room, through fields of mountain flowers farmers and townspeople but is entered via a red carpeted spiral ramp, is Stalin’s death and light forest will lead you to this particularly famous for his paintings mask. The Museum is like a time-capsule with acknowl- majestic site. Behind the church and of animals, and people engaging in edgement of Stalin’s victims eerily missing. the bell-tower is Mount Kazbek, elaborate celebrations and feasts. often shrouded in mist, and the sev- Pirosmani died in poverty, just as his Ancient cave town of Uplis-Tsikhe enth highest peak in the Caucasus life and work was gaining attention. A few kilometres from Gori is the ancient cave town of Mountains standing at 5,047 metres. Other artists to look out for are the Uplis-Tsikhe. It was an important trading centre and brilliant but doomed modernist cos- at one time home to 20,000 people. Over an extended David-Gareja and tume and theatre set designer, Petre area, protected on one side by the Mtkvari River, a Udabno Monasteries Otskheli, who was eliminated in the sophisticated series of rock-hewn churches, houses, David-Gareja is a rock-hewn Stalinist purges in the 1930s, and the shops and temples, and even a Royal Hall, emerged. Orthodox Christian monastery com- avant-garde painter David Kakabadze. Construction and settlement began in the 6th century BC plex spread over a remote semi-de- One of the saddest stories in but declined in the 13th century AD after Tamerlane and sert area in the Kakheti region of Georgian art history can be reserved the Mongol invasions. Today, the underground buildings eastern Georgia on the border with for Dimitri Shevardnadze who was are preserved as an open air museum. Azerbaijan. Fifteen monks still live involved in the establishment of in the Larva Monastery, which the National Gallery of Fine Arts in Georgian Military Highway, Ananuri was founded in the 6th century. Tbilisi but opposed Stalin’s right- Fortress and the Church of Tsminda Traditionally, the monks lived in hand man, his fellow Georgian, Sameba caves (which can still be seen) and Lavrentiy Beria, who had plans to The north of Georgia can be reached by the Georgian the complex contains the tombs demolish the Metekhi Church. Beria Military Highway. It served as a major trade link between of Davit and Lukiane, two of the had Shevardnadze executed for his Asia and Europe, connected Georgia with Russia, and 13 ascetic Syrian founders who troubles. was completed in 1817 at the request of Alexander I. returned from the Middle East to On the outskirts of Tbilisi, and next to the Highway, are spread Christianity to Georgia. The Joseph Stalin Museum refugee camps that still house people who fled the fighting monastery was sacked many times, The town of Gori, about 80km from between Georgia and Russia over nearby South Ossetia. including at Easter in 1615 when Tbilisi, is the birthplace of Joseph Ananuri Fortress is idyllically located on a hill above the Persian forces killed 6,000 monks. Stalin. Stalin’s parents rented a room Zhinvali Reservoir. The complex dates from the 16th and A steep walk beyond David-Gareja

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▴ Tbilisi - Peace Bridge is the Udabno Monastery complex. An array of churches can be reached by walking along an uneven track high above the grassland plains of Azerbaijan. Armed Georgian soldiers guard surveillance posts along the route. The main church has images of David-Gareja, Lukiane surrounded by deer, and various Kakhetian princes. The refectory has a large but damaged fresco of Christ and his disciples at the Last Supper. Many of the frescoes are in poor condition. Shepherds and their livestock sheltered in the churches and Soviet military forces at one point used the hills as an artillery firing range. These activities have caused considerable damage to the complex. Food and wine Two staples of the Georgian diet are khachapuri, or cheese pie, and khinkali, which resemble dumplings. Both are quite plain in appearance and taste – the pie made from dough and local cheese that looks and tastes like mozzarella, and the khinkali filled with beef, lamb or pork, and spices. Khinkali was the food of choice for shepherds as it was easy to carry and eat while they ▴ “Imereti – My Mother” (1918, oil on canvas, 139x157 cm) by David were walking and tending their flocks. Many cafes and Kakabadze. The Museum Director, Professor David Lordkipanidze, is restaurants throughout the country serve it today. thanked for granting permission to reproduce this image. Georgian wine is growing in reputation and many of the vineyards can be visited for sampling, particularly the cathedrals, churches and monas- difficult and fraught past. My lasting in the Kakheti region. The rich red Saperavi is perhaps tic sites. The barren steppes and the memory is of smiling pilgrims – men, the most notable wine and can be found in abundance mist-shrouded Caucasus Mountains women and children – grouped around along with other varieties in the many wine shops in can be foreboding, as can the remains a priest, reflecting on their visit to the Tbilisi’s Kala district. of ancient stone watchtowers that Church of Tsminda Sameba. ▪ Georgia sits at the crossroads of east and west, with overlook isolated mountain passes. Russia to the north, Armenia and Turkey to the south, and Everywhere, though, the people are David Josland is a solicitor Azerbaijan to the east. It is hard not to be impressed by the friendly and warm, and display a defi- employed by the New Zealand detailed religious iconography that appears in the murals in ant resilience that belies a sometimes Companies Office in Auckland.

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Crossword Across Down 1 See 13 1/28 Chairman rises at parting - SET BY MĀYĀ 4/33 Hammer in gaps for old- once they’ve gone, is the party fashioned lights (3,5) over? (5,5) 6 Barbara Stanwyck content to be a 2 Egyptian spirit and god have follower of Haile Selassie (5) good energy for a singalong (7) A C H R I S T M A S C A R O L 9 Rower from RSA upset while 3 Game with liquor I own (5) N I M A C I S A O X F A M G O E S T O P O T visiting sultanate (7) 4 Girl and two followers of former R A U G R R C I 10 See 24 lawyer (6) E N L A R G E B L A T A N T X U E R O I T U 11 Flatten with variable wit (5) 5 Regarding the “Aha!” moment... (6) I Q T E S T S C R E A S E D 12 Atlas, for example, is thing with a 6 P.C. is conservative and active (5,2) A I U U A I brown cover (5) 7 Zits, huh? Cure could be a small N O N S U I T O R T O L A N E N E N S I V A 13/1 Enigma involving 2 having lost dog! (4-3) R E G A L I A B I G H A I R vowels to the Earl of Warwick (9) 8 White, like a chicken (5) V I I R O R T I 15 Bend found in part of intestine 13 Acronymic advice to minimise O R G A N I S E R E R I C A S O E U N S O N turning back rolled oats (6) complexity may be offered by A N T I D E P R E S S A N T S 16 See 17 Down those about to make up (4) 18/31 Condenser said to get out of 14 Haloes? Not in my Biblical Solution to October bed once spring has ended (10) iconography! (5) 2017 crossword 19 See 29 15 Electoral system suited a Across: 22 Detain rock band with... (6) stammering politician? (3) 1 A Christmas Carol, 9 Oxfam, 24/10 ...what the E.U. wants to do 16/32 Medal, or different bauble of 10 Goes to pot, 11 Enlarge, over Brexit’s party leader? (4,7) office?(7) 12 Blatant, 13 Roi, 14 I q tests, 26 See 30 17/16A 29/19 says he has - but not, 16 Creased, 19 Nonsuit, 22 Ortolan, 27 What counts, in the end, is perhaps, of being 13/1! (3,6) 24 Ens, 25 Regalia, 27 Big small rodents getting time for 20 A number of workers may rent? (7) hair, 28 Organiser, 29 Erica, Liberal (5) 21 Retort concerning political party, 30 Antidepressants. 29/19 Party leader achieves or... (7) massive gain, then fizzles (out) 23 ...not many intrigues for Down: (7,6) opposition? (7) 1 Anorexia nervosa, 2 Hifalutin, 30/26 Revising “Jamaica Inn” 24 Shed’s a place to stay in bed (6) 3 Immures, 4 Taggers, advertisement caused a surge in 25 Spooner’s run beat congestion (6) 5 Acerbic, 6 Citrate, 7 RSPCA, party’s 27 (12) 26 Extinct herbivore, they say, used 8 Latitudinarians, 15 Tui, 17 R.U.R., 31 See 18 to crop grass (5) 18 Salvation, 20 Unlined, 21 Tears 32 See 16 Down 27 Outspoken against topless pub (5) up, 22 Osborne, 23 Tigress, 26 Gigot. 33 See 4 28 See 1

81 TAIL-END November 2017 · LAWTALK 912

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Generation X has as “Generation Me”. Looking at 12,822 New Zealand-based lawyers at 10 October 2017, the biggest taken over… group is now Millennials – who make up 38% of all lawyers. Not far behind is Generation X (37%) and then we go Defining generations is a popular game. generation are also rather broad, but back to the Baby Boomers who now Everyone should at least be aware of some of the most common – with a focus comprise just under a quarter of all the most common tags which have on workplace behaviour: lawyers, and pre-Baby Boomers barely evolved to provide a handy way of Pre-Baby Boomers: Sometimes called registering. explaining the often-baffling actions the “Silent Generation”. There are some distinct differences of other generations: Baby Boomers, Baby Boomers: Rejection or redefi- between the generations when it Generation X, and Generation Y (or nition of traditional values, expected comes to the type of legal practice. “Millennials” which we’ll stick to as it’s the world to improve, a special gen- Baby Boomers are the largest group of a more interesting tag). eration which has grown up with that barristers (46%). Generation X dominates The boundaries are not strictly knowledge. with in-house lawyers, however (48%). defined – starting and ending dates Generation X: Independent, resource- While making partner or becoming a vary, but there seems to be a rough con- ful self-managing, hard-working and with director is definitely not a goal for every sensus that Baby Boomers were born a strong work ethic. Sometimes called lawyer, it’s reflective of the power to between 1946 and 1964, Generation X the “latchkey generation” or “MTV make decisions in law firms. Prepare for from 1965 to the end of the 70s, and generation”. a surprise if you think the Baby Boomers the Millennials in the 1980s and 1990s. Millennials: A preference for a flat still dominate. Looking at the 8,600- We’ll go with these. corporate culture, work-life balance and odd lawyers who work in law firms The attributes handed to each social consciousness. Negatively seen with more than a single lawyer, just

All New Zealand Lawyers, 1 October 2017 In-house Lawyers in Partners & Sole Generation All Lawyers Barristers Lawyers firms Directors Practice Pre-Baby boomer 1.8% 3.3% 0.3% 2.0% 1.6% 4.1% Baby boomer 23.9% 46.2% 12.6% 24.1% 36.1% 60.4% Generation X 36.8% 39.3% 47.7% 32.7% 50.4% 29.3% Millennial 37.6% 11.2% 39.4% 41.2% 11.9% 6.2%

❝ It is not difficult to infer that the company’s non-compliance amounted to a calculated and contemptuous disregard Notable Quotes for the AML/CFT requirements, and that non-compliance was a cultural norm within the business. ❞ — Toogood J, imposing pecuniary penalties totalling $5.29 million on the respondents in Department of Internal Affairs ❝ I got the shits, to tell you the truth, at the end of the day, v Ping An Finance (Group) New Zealand Company Ltd after comments that people had made about us lawyers. [2017] NZHC 2363. You know, some of the most common comments are, ‘How can you defend scumbags like that?’ The fact of ❝ In addition to the number of members of which by any the matter is, you can’t defend someone who is pleading law for the time being in force it may be provided that guilty because there is nothing to defend. ❞ the House of Representatives shall consist there shall be — Australian lawyer Sam Macedone, who angrily reacted four members of the said House who shall be elected on Twitter to the many trolls who were critical of his under the provisions of this Act to represent therein the representation of Australian journalist Ben McCormack, who inhabitants of the Colony of the Māori race. ❞ pleaded guilty to two charges of transmitting, publishing — Section 3 of the Māori Representation Act 1867, beginning or promoting child pornography messages. 150 years of guaranteed Māori representation in Parliament.

82 LAWTALK 912 · November 2017 TAIL-END

Two New Zealand legal over 50% of the partners and directors are from Generation X – even though they contribute just 33% of all lawyers landmarks working in multi-lawyer firms. Baby Boomers are next, contributing 36% … Lawyers Head: 34 metres high, this is found at Dunedin’s St and a long way back to the Millennials Kilda Beach. “This striking headland was supposed to have (12%). Of course, experience and time some resemblance to the nose of James Howorth, provincial in practice are traditionally important crown prosecutor of Otago in the 1850s and 1860s” says The criteria for moving into partnership Reed Dictionary of New Zealand Place Names (Reed Books, … for the moment. Has there been a 2002, page 263). James Howorth died in 1867 aged 75, a year quiet revolution with the focused and after resigning his role because of blindness. The head itself resourceful Generation Xers taking over commands a view across the city’s southern suburbs and along and just getting on with things? the Otago coast for over 80km to the southwest. The Māori Sole practices with just one name is Te Ika-a-Parehika (Parehika’s fish), with the headland lawyer are still dominated by Baby itself being the fish. Boomers, who make up 60% of all sole practitioners. Judges Bay: Found at the northern end of Auckland’s Parnell The major changes in gender makeup suburb. “When the capital was shifted from Russell to Auckland of the legal profession over the last three [in 1841], Sir William Martin, chief justice, took up residence decades are also reflected in the gener- in this bay,” says The Reed Dictionary of New Zealand Place ational breakdown. Nearly half – 47% – of Names (at page 229). “It was also nicknamed Judicial Bay all women lawyers are Millennials. And and by a vitriolic newspaper editor, Inequity Bay, which was just 13% are Baby Boomers – compared shortened to Equity Bay.” The Māori name is Taurarua, which to 34% of male lawyers. ▪ Reed translates as “witchcraft”.

By Gender, 1 October 2017 Correction: Spotlight on legal services industry Generation Female Male No, everyone in the legal services industry did not earn $214.5 million each in 2015/16 (page 66, LawTalk 911, Pre-Baby boomer 0.2% 3.4% October 2017). The heading on our table “Financial ratios, Baby boomer 13.3% 34.3% legal services, year to 30 September” should have stated Generation X 39.3% 34.2% “($ thousand)” instead of “($ million)”. Our apologies to anyone whose hopes were raised. Millennial 47.3% 28.1%

❝ Having sex with a robot does not constitute adultery. ❝ That’s legal in this country! It’s legal in this country Adultery is only conducted between a respondent and a arsehole. That’s glue. That’s a legal product in this country. person of the opposite sex. ❞ Abuse of solvents and glue is legal in this country! ❞ — Decoded Legal lawyer Neil Brown gives some advice to — Caught on video and shared on Reddit, a concerned the British media after an August survey revealed that 40% member of the public advises Auckland police that of Britons did not believe sex with a robot constituted they should not have confiscated glue from a group of cheating on a partner. children.

❝ I do not suggest that our criminal justice system is in ❝ It’s clear to me there are savings to be made if we make comparable crisis to that in the United States. But it is better use of artificial intelligence. It’s also clear to me deeply worrying if the early reports on the new system that clients expect a better level of service – they expect of police warnings are showing indications of unequal 24/7 service. ❞ treatment and discrimination. The criminal justice system — Chen Palmer partner Mai Chen, launching the online lawyer cannot afford such taint. It shakes confidence in the finding serviceMyAdvice.Legal . system. ❞ — Chief Justice Sian Elias sounds a warning to the Criminal Bar Association’s annual conference.

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