How I Survived the Death of My Business Partner

ISSUE 909 · August 2017

How I survived the death of my business partner

BY CLAUDIA KING

AML/CFT – Equity vs Complaints What is Grappling non-equity continue to a Social with phase 2 partners decline Enterprise?

Page 58 Page 44 Page 50 Page 34 Practical Guidance

Investor headaches?

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Introducing LexisNexis® Practical Guidance Investing in New Zealand Unscrambling the New Zealand investment process

New, investor information platform Professional content — written, compiled and updated by trusted industry experts Built for real-world legal and compliance professionals Centralised investor content, tools, Key content already translated forms and information into simpliﬁed Chinese. Web-based, accessible anywhere Save time, build credibility with investor clients To learn more or arrange for a demonstration, Remove the uncertainties from investor contact our team today on 0800 800 986 advising or visit www.lexisnexis.co.nz/pg/inztrial Gerard Dewar, Louise Sziranyi, Gerard Letts and Daniel Vincent are pleased to advise that on 1 July 2017 they were joined in partnership by Clare Stanley and Matt Freeman. LAWYERS

New Partners Clare and Matt have had long associations with the firm. UPCOMING Clare Stanley COURSES IN AUGUST Clare’s particular areas of expertise are property and local DATE COURSE PRICE* government law, criminal law and 22 Aug Māori Pronunciation & Greetings $345 civil litigation. 24 Aug Opportunities in the Māori Economy $460

31 Aug Understanding Millenials $345 Matt Freeman *Prices include GST Matt’s particular areas of expertise Workshops Held at The College of Law, Level 8, College are in all areas of litigation, specialising in civil litigation, of Law Centre, 3 City Road, Auckland relationship property and trust litigation. BOOK TODAY FOR THESE POPULAR COURSES Thomas Dewar Sziranyi Letts Call (09) 300 3151 PO Box 31-240, Lower Hutt Email [email protected] Phone: (04) 570 0442 Fax: (04) 569 4260 Visit www.collaw.ac.nz www.tdsl.co.nz

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People in the law 30 · Thinking about the children 6 · Overcoming gunpoint when dividing relationship negotiation as a lawyer in property ▹ BY HELEN TYREE Iraq ▹ BY NICK BUTCHER AND MCKENZIE COX 8 · On the move 32 · New Act has changed the liability landscape for rural 13 · NZLS at a glance fires ▹ BY VERONICA CRESS 34 · What is a Social 17 · Letters to the Editor Enterprise? ▹ BY STEVEN MOE 36 · The WJP Rule of Law Index Update 38 · Species-altering technologies 6862 20 · ACC and appeals to the need law fit for purpose ▹ BY Supreme Court ▹ BY DON RENNIE LYNDA HAGEN 21 · A New Land Transfer Act ▹ BY THOMAS GIBBONS Mediation 22 · Bank on change ▹ BY 39 · Better Conversations TINA MITCHELL Part 2 ▹ BY PAUL SILLS 24 · America's Cup 2017 ▹ BY JOHN WALTON Cover story 26 · Commerce Commission takes 40 · How I survived the steps to protect consumers death of my business from certain third-tier partner ▹ BY CLAUDIA KING lenders ▹ BY HANNAH MUSGRAVE 29 · Plants, Copyright and Practice Wine ▹ BY DOUG CALHOUN 44 · Equity vs non-equity 8864 partners ▹ BY EMILY MORROW

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4 Contents

46 · Why lawyers shouldn’t 62 · How money can be 72 · Watch out for those scam fear commoditisation ▹ BY laundered ▹ BY NICK BUTCHER apps ▹ BY ANGHARAD O’FLYNN MICHAEL SMYTH 47 · Why provisional tax ain’t so Pro Bono Legal information bad now ▹ BY CHRIS CUNNIFFE 63 · Wide range of projects for 74 · Privacy Law in New Zealand, 2nd Kensington Swan pro bono edition ▹ REVIEWED BY MARIA POZZA The New Lawyer team ▹ BY CRAIG STEPHEN 49 · You, human lawyer, are Classifieds allowed not to know Focus on 75 · Will notices things ▹ BY KATIE COWAN 64 · The West Coast ▹ BY 76 · Legal jobs KATE GEENTY 79 · CPD Calendar Complaints 50 · Complaints against lawyers Learning and Lifestyle continue to decline development 82 · The America’s Cup and its 51 · Common themes in complaints 68 · Family Law Conference colourful relationship with the against lawyers about keeping lawyers one step courtroom ▹ BY NICK BUTCHER Conveyancing ▹ BY LISETTE SOLIS ahead ▹ BY SONJA DE FRIEZ 84 · New Orleans Good times and 54 · Lawyers Complaints Service 68 · NZLS signs MOU with better times ▹ BY JOHN BISHOP Open Polytechnic 87 · New Zealand Legal AML/CFT Crossword ▹ SET BY MĀYĀ 58 · Hang on: help is on its way Technology for lawyers ready to grapple 70 · Video recruitment tool Spotlight on phase two ▹ BY NICK BUTCHER developed by former 88 · Locations ▹ BY GEOFF ADLAM 61 · What Internal Affairs is lawyer ▹ BY NICK BUTCHER planning ▹ BY NICK BUTCHER 71 · NoticeMATCH checks 90 · Tail-end deaths against client database ▹ BY CRAIG STEPHEN

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5 PEOPLE IN THE LAW August 2017 · LAWTALK 909

to negotiation, mediation, communication and storytelling through spending a lot of time telling other people’s stories in a courtroom helped me in what was probably one of the highest pressure situations you could find yourself in,” she says. With the gun at her head both the instinctive legal and military training she had took over. “You have to dig deep and remain calm and focused on what you’re doing, otherwise several lives including my own could have been in jeopardy. I wasn’t equipped for this, having not had any formal hostage negotiation training. “Survival instinct also plays a part in these situations and until that day I was unaware how profound it was,” she says. PEOPLE IN THE LAW PROFILE The importance of human connection Normally with litigation situations, Rabia Siddique says lawyers already Overcoming have some training to take the human connection and emotion out of the process. gunpoint negotiation “We talk about putting on our lawyer’s hats which traditionally meant taking the emotion away and as a lawyer in Iraq being sterile in our approach. We associate professional with almost being cold and strategic but the BY NICK Iraqi situation reminded me that BUTCHER there is room to maintain some A unique story humanity and personal connec- It involved the detention of two British SAS soldiers tion in our work. Never lose sight Irrefutably one of the best at a police compound in the city of Basra, who were of what people you’re representing skills a lawyer will ever take to a dressed in local attire. They were carrying out a covert are going through in that it is real meeting is excellent negotiation investigation of that police force over allegations of and important,” she says. skills, but imagine having to use infiltration by Shiite militants who were apparently Ms Siddique remained calm and those skills to negotiate the release taking vigilante revenge against Sunnis. was slowly resolving the situation of yourself and two soldiers in a Rabia Siddique was sent to the police headquarters by explaining to the Iraqi chief deteriorating war zone. to secure the release of the soldiers. legal officer in the station that it Australian-based criminal and She was the second-choice negotiator. The British was illegal to detain British soldiers human rights lawyer Rabia Siddique Army’s first option was rejected by an Iraqi judge who under an accord agreed between the was a guest speaker at the In-house said he would only deal with Rabia Siddique as he felt Iraqi Provincial Government and the Lawyers Association of New Zealand she was a lawyer he could trust. coalition forces. conference, held in May. However, it soon become apparent that this was a But the situation outside the com- Her story of an experience she very tense and dangerous situation. pound took a violent turn with mili- had as a military lawyer for the Ms Siddique soon found herself on her knees with the tants storming the facility after they British Army in Iraq in 2005 was cold tip of an AK47 pressed into her forehead. were fed false information by police both compelling and inspirational. “The training and skills I had as a lawyer in relation that the detained SAS soldiers were

6 LAWTALK 909 · August 2017 PEOPLE IN THE LAW

and expertise and strength to the table and you should take time to listen to what value they bring. That’s when you realise you don’t have to do everything and you’re not in this alone, and a collection of minds and talent has such potential to yield great results,” she says. Once her ordeal was over and they were all back at base, there was little appetite for Rabia Siddique’s version of the story at the police compound, yet she had been intensely involved in negotiating their release and wanted recognition for her part in the crisis. The battle for equal status She says there are parallels between her fight for recognition and that of the battle some women in law have to gain senior status in law firms, such as making partner. “The decision to write me out of the incident was a political one. With regard to what is happening in our profession and the challenges women have, I think it has a lot to do with the culture. We are still a very traditional and conservative profession,” she says. Ms Siddique says conservatism in the legal sector limits opportunity for diversity of thought and innovative approaches. “It’s that culture which is driving some women to leave the profession because the battle gets too hard and exhausting and they realise they don’t want to do it anymore. It’s a tragedy because we will lose talent and a pool of expertise. We need to challenge this and if so change our narrative and perspectives in relation to how we regard ourselves as a profession.” She says diversity is broader than just gender and includes age, experience and cultural diversity. “Better understanding and embracing diversity in its Israeli spies, making them a target broadest sense will only improve and strengthen the for reprisal attacks by both Shiites legal profession,” she says. ▪ and Sunnis who despised Israel. The militants stormed the com- Rabia Siddique is the author of a memoir, Equal pound and briefly took control of Justice, My Journey as a Woman, a Soldier and a the situation before Rabia Siddique’s Muslim (Macmillan, 2013). Rabia is holding an all-day captors regained the upper hand. leadership workshop for NZLS CLE Ltd in Auckland Eventually, after a further tense (19 September) and Wellington (20 September). stand-off, and the threat of exe- cution, negotiations between the governor of Basra and the British consul-general secured their release. Team-work in challenging situations

Reflecting on that experience, Ms Legal Accounting Bureau · Save time and money Kathy Kell Siddique says the legal profession provides comprehensive, · Always know your trust account [email protected] accurate, efficient and timely is balanced and your month end should put more focus on the impor- certificates are filed on time Ph 09 444 1044 management of solicitors’ trust Fax 09 929 3203 accounts. · Our service is completely secure tance of good team work, something and confidential www.accountingbureau.co.nz she says was vital to gaining their Outsource the management of · Trusted professionals with over your firm’s trust account. Either 20 years’ experience release. come to us or we can come to · 62 law firms currently use our Powered by juniorPartner. “Everyone brings a different and you remotely. services Practice Management software you can trust. diverse range of experience, skills

7 PEOPLE IN THE LAW August 2017 · LAWTALK 909

PEOPLE IN THE LAW ON THE MOVE

Pheroze Jagose Solomons acquires law firms in Christchurch and Dunedin appointed to High Court new staff before joining Solomons. Charlotte Carr has joined as a solicitor. Wellington barrister Pheroze Jagose A number of new staff have joined Dunedin Admitted in 2015, Charlotte has worked has been appointed a firm Solomons from another Dunedin- primarily in dispute resolution, including Judge of the High Court based firm. civil litigation, relationship property and and will sit in Auckland. Amy Marslin has joined employment law. She will continue with Justice Jagose graduated as a partner, specialising the same in combination with general LLB from the University in property, commercial, practice. of Auckland in 1987 and trusts, estate planning Feifei Zhou, law clerk who is studying MA in international and mental health law. law at the University of Otago has also relations from Lancaster Admitted in December joined along with PA Shelley Ross. Feifei University, England. He was admitted in 2002 after graduating is fluent in English and Mandarin and holds September 1988 and initially worked as a from the University of a degree in environmental science from legal officer at the Northern Government Otago Amy joined another Dunedin firm Anhui University in China. Shelley has Officers’ union and the New Zealand and became a partner there in 2011 before worked in Otago law firms for 28 years. Air Line Pilots’ Association. He joined joining the Solomons partnership in June Chapman Tripp in 1995 and became a part- 2017. She has acted as a court appointed Barristers set up at ner in 2000. Justice Jagose commenced Counsel for Subject Persons for 9 years. Left Bank Chambers practice as a barrister sole in February Dick Crush has joined 2016, specialising in competition and trade as a partner, specialising Richard Johnstone and Grant Slevin have practices as well as company, securities, in property, commer- together set up as barristers at Left Bank employment, public and administrative cial, rural law, trusts Chambers, 8/18 Bernard Street, Addington, law. and estate planning. Christchurch. Dick graduated from Richard Johnstone retired from partner- Gerard van Bohemen the University of Otago ship at Wynn Williams on 31 May 2017 after appointed to High Court and was admitted in over 27 years. His areas of practice remain December 1975. A former Air New Zealand civil litigation and disputes – primarily New Zealand’s United Nations Permanent director he has also worked as State insurance, construction, cyber and general Representative Gerardus (Gerard) Solicitor in Samoa and has extensive commercial – and professional standards Jacobus van Bohemen has been experience as a litigator. and liability. appointed a Judge of the High Court. Michaela Ryan has Grant Slevin was a member of Wynn Justice Bohemen graduated BA, LLB(Hons) joined as a partner, Williams’ insurance law team before from Victoria University of Wellington and specialising in dispute becoming a senior investigating solicitor practised at Russell McVeagh for two years resolution, litigation, at the Christchurch office of the Insolvency before moving to Buddle Findlay where employment and and Trustee service. He is co-author of The he spent eight years and became a part- relationship property. Law of Insolvency in New Zealand, and his ner. He then practised at Chen Palmer & Michaela was admit- practice focus will be insolvency and debt Partners in Wellington as a partner. Justice ted in May 2002 and recovery, trusts, estates and general civil Bohemen specialised in environmental returned to New Zealand in 2014 from the litigation/dispute resolution. law and resource management and civil Channel Islands where she was a senior litigation. He became Director of the associate with Mourant Ozannes. She is an Elizabeth Longworth Legal Division of the Ministry of Foreign experienced litigator and has appeared in appointed to FMA Affairs and Trade in 2005 and was subse- the District and High Courts and a range quently appointed Deputy Secretary for of tribunals. Former New Zealand lawyer Elizabeth Multilateral and Legal Affairs. In 2015 he Rob Pile has joined as Longworth has been appointed to the was appointed New Zealand’s Permanent a solicitor, practising in Financial Markets Authority for a three- Representative to the United Nations the areas of property and year term. She replaces outgoing FMA and led New Zealand’s mission during commercial law, rural board member Shelley Cave, who has its two-year term as a non-permanent transactions, trusts and been a member since 2011. Since 2003 member of the Security Council. He will estate planning. Rob was Ms Longworth has held a number of sit in Auckland. admitted in December senior leadership positions in the United 2013 and practised with Nations.

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David Gubb appointed Rights Commission’s Disability Rights Copeland Ashcroft Law Associate Commissioner on 31 July, replacing Paul promotes two lawyers Gibson. Ms Tesoriero holds an LLB, BA David Gubb has been and Postgraduate Diploma in Public Copeland Ashcroft Law has made two appointed Associate Management, and was General Manager, recent promotions. at Mount Maunganui Systems and Partnerships with Statistics Carolyn Moffat has firm Beachside Legal. New Zealand from February 2016. been promoted to David was admitted in senior solicitor. After 2004 after graduating Alexandria Till Harkness completing her law from Otago University. Henry Senior Associate degree at the University He joined the firm in of NSW in Sydney she 2016 after moving from Harkness Henry has joined the firm in March Hamilton and has also worked in Te Aroha, appointed Alexandria Till 2015, working in the Tauranga and London. David specialises in a senior associate in the Queenstown office. Before studying law property and commercial law. RMA, Employment and Carolyn worked in HR Management roles Alcohol Licensing team. in New Zealand, and overseas. She provides Fulbright Award for Alexandria is a specialist advice and guidance to both employers and Wellington lawyer employment lawyer and employees on a wide range of employment worked exclusively for law and health and safety matters. Buddle Findlay solicitor employers in her previous in-house role, Rebecca Laney has Lottie Boardman has but now welcomes clients from both sides been promoted to been awarded a Fulbright of the table. She moved to employment law senior solicitor. Rebecca Science and Innovation after time spent in the dispute resolution completed law and psy- Graduate Award. The group of a large multinational firm in the chology degrees at the award will assist her to United Arab Emirates. University of Otago and study towards a Masters joined the firm in May of Environmental In-house lawyer on 2013, initially working Management at Yale’s financial advice code in the Invercargill office but now based School of Forestry & Environmental Studies working group in the Dunedin office. She offers advice and in Connecticut, United States. Lottie starts guidance to both employers and employees her two year programme at Yale in August Auckland in-house lawyer Graeme on a wide range of employment law and 2017. Edwards is one of nine people appointed health and safety matters. by Commerce and Consumer Affairs New Partner at Minister Jacqui Dean to a working group New staff join Hesketh Henry to develop the new code of conduct for Fonterra legal team financial advice. Mr Edwards is General Hesketh Henry has Counsel and Company Secretary at ASB Jackie Floyd has joined promoted Helen Bank. Fonterra’s legal team as Macfarlane to partner. General Counsel – Group Helen was admitted as Former lawyer to lead Functions and Farm a barrister in London Expo 2020 involvement Source. Jackie was previ- before moving to New ously Associate General York to work as a litiga- Former lawyer Clayton Kimpton has been Counsel at Vector Ltd. tion attorney for 15 years. appointed New Zealand’s Commissioner- Before joining Vector She joined Hesketh Henry in August 2007 General to Expo 2020, which will be held in she was a principal at Chapman Tripp, as a senior associate in the role of special Dubai, United Arab Emirates. Mr Kimpton where she worked across a broad range counsel. Helen works in insurance, con- was a partner at Kensington Swan and of corporate and commercial law areas. struction law and commercial property chairman of the firm for eight years. He was Jackie was named New Zealand In-House disputes. appointed Regional Director India, Middle Lawyer of the Year at the East & Africa with New Zealand Trade and 2016 ILANZ In-House Disability Rights Enterprise in 2013, and Consul-General to Law Awards. Commissioner appointed Dubai and Northern Emirates before his Luke Facer has current role. joined the team as Disability advocate and former General Counsel – Paralympian Paula Tesoriero took up a Global Consumer and three-year appointment as the Human Foodservice. Luke joined

9 PEOPLE IN THE LAW August 2017 · LAWTALK 909

Fonterra from Orion Health, where he was WRMK Lawyers Promotions at Baldwins General Counsel and Company Secretary appoint new Director and Vice President-Asia. Luke started his Baldwins has promoted three staff in their career working in the legal team at Gen-i WRMK Lawyers in Auckland and Wellington offices. focusing on ICT procurement, before Whangarei have Kate Giddens of the spending six years working in private appointed a new firm’s Wellington office practice at Russell McVeagh in Auckland director. Chris Taylor has been promoted to and Cravath, Swaine & Moore in New York. graduated and was senior associate. A bar- admitted to the bar in rister and solicitor, Kate Scott Wight becomes 2005. In 2010, he joined specialises in trade mark Gascoigne Wicks partner the WRMK business protection, management department. Chris handles corporate and and enforcement. Kate Blenheim firm Gascoigne business legal matters, including securi- works with clients across a range of indus- Wicks has appointed ties, capital raising, funds management, tries including those in the automotive, Scott Wight a Partner. contract negotiation and drafting, finance, entertainment, food and beverage, sports- Scott was admitted in joint ventures, limited partnerships, and wear and telecommunication industries. February 2006 and has other general business law. Dr Victoria Argyle worked with the firm has been promoted to since shortly after his McKenzie Cox now associate at the firm’s admission. He works in solicitor at McWilliam Auckland office. Victoria the commercial and conveyancing area. Rennie Lawyers specialises in specialist chemistry and life- Rachael Schmidt- McKenzie Cox has been sciences and provides McCleave new promoted to solicitor at patent advice to clients censorship President Wellington family law operating in the chemical and biotech- specialists McWilliam nology industries; freedom to operate, Wellington barrister Rachael Schmidt- Rennie. McKenzie gradu- prosecution of New Zealand and Australian McCleave has been appointed President ated from the University patent applications, and advising clients of the Film and Literature Board of Review. of Waikato in December on infringement and patentability issues. She succeeds former President Kate 2016 with an LLB and Harriet Tregonning is Davenport QC whose term has expired. was admitted in the Hamilton High Court also a new associate in Ms Schmidt-McCleave was admitted in in June 2017. She practises in family and the Baldwins’ Auckland 1996 and worked at Chen Palmer and criminal law, and has a particular interest office. Harriet is a reg- Russell McVeagh before spending time in in relationship property, care of children istered patent attorney London. On her return she worked at the and domestic violence proceedings. and her main practice Crown Law Office from 2002 to 2011 and areas are in the fields then Minter Ellison Rudd Watts before Melissa Bourke appointed of biotechnology, agri- joining the independent bar in 2014. She Innes Dean Tararua cultural technologies, and animal and has extensive experience in public law and Law Ltd director human health. She also handles prosecu- judicial review and is an AMINZ Associate. tion of patent applications and resolution Melissa Bourke has of disputes before the New Zealand and Cameron Russell been appointed a direc- Australian patent offices. promoted tor of Manawatu law firm Innes Dean Tararua Deputy Banking Tauranga firm Cooney Law Ltd. Melissa joined Ombudsman – Lees Morgan has pro- the firm in 2012 and has Prevention appointed moted Cameron Russell experience in the areas to senior associate. After of property, relation- Tina Mitchell has been joining CLM in 2010 ship property, estates and trusts with a appointed Deputy Cameron was admitted special interest in elder law and mental Banking Ombudsman shortly thereafter before incapacity. She sits on the Manawatu – Prevention for the moving to Auckland Lawyer for Subject Person Panel and the Banking Ombudsman in 2012. He spent some time working in Manawatu branch of the New Zealand Scheme. Tina was admit- Sydney for two law firms before return- Law Society. Melissa also educational ted as a barrister and ing to CLM in 2016. Cameron specialises seminars for local medical practitioners solicitor in 1995 and has worked in a range in residential, office, retail and industrial on the developments in the law regarding of resolution and leadership contexts over property development and construction. mental incapacity. the last 20 years, including private practice,

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regulatory services, policy and advisory Katrina Hammon Sefton Powrie now roles. Her role at Deputy Ombudsman is to becomes partner at Grove Darlow associate capture prevention insights from customer Duncan Cotterill trends and sector developments, and share Auckland firm Grove Darlow & Partners those to encourage best practice by banks Katrina Hammon has appointed Sefton and informed decisions by customers. has become a partner Powrie an associate. in Duncan Cotterill’s Sefton graduated Minter Ellison Rudd Watts Auckland office. She from the University of promotes five lawyers specialises in franchis- Canterbury and was ing, distribution and admitted in 2014. He Minter Ellison Rudd Watts has announced licensing with a par- joined the firm’s litiga- the promotion of five lawyers into senior ticular focus on retail, tion department in 2015. positions. intellectual property, network growth and Charlotte Carey has international expansion. Before joining Wynn Williams become a senior associ- Duncan Cotterill Katrina was the senior promotes two lawyers ate in the Banking and legal counsel at SumoSalad Group and a Financial Services team senior associate at global firm Norton Rose Sinead Hart has joined Wynn Williams in Wellington. Charlotte Fulbright where she spent just under four corporate and commercial team in the joined the firm as a years as part of its Sydney practice. Auckland office as a senior associate. She senior solicitor in 2014 has over 15 years’ international legal expe- from a boutique law Kensington Swan rience gained at major accounting and law firm. Since joining, Charlotte has become promotes new Partner firms, and moved to New Zealand in 2010. instrumental to the firm’s insolvency and Sinead specialises in corporate advisory recoveries practice. Henry Brandts-Giesen work and has experience in litigation and Stephanie de Groot has has been promoted to settlement negotiation. become a senior associ- partner in the Private Lucy Hodgkinson has joined the firm’s ate in the Environment Wealth practice of corporate and commercial team in the team, Auckland. Kensington Swan. Auckland office as a solicitor. Lucy was Stephanie joined the Henry began his legal admitted as a barrister and solicitor in firm’s Environment career at Kensington December 2016. practice as a law clerk Swan and returned to in 2010 after spending the firm in 2016 after a decade practising Five lawyers promoted time at Auckland Regional Council in internationally. He specialises in private at Lane Neave their coastal and air quality compliance wealth and his advisory practice covers teams. She specialises in all aspects of family and offshore trusts, residency by Lane Neave has promoted Joshua Leckie to environment law. investment, estate planning, relationship the partnership. Based in the Queenstown Nick Frith has become property, collective investment scheme, office, Joshua was a senior associate in unit trusts, superannuation and employee admitted in July 2009 the Dispute Resolution share schemes. after graduating LLB, team in Auckland. Nick BSc from the University summer clerked with the Jane Searle new of Otago. He specialises firm before returning as a Child Matters CEO in resource management Dispute Resolution Law and commercial property Clerk in 2010. Since then Former lawyer Jane Searle has been and worked at a major he has developed expertise in insurance appointed the new chief executive of New Zealand law firm before joining Lane and brokering law. the child advocacy organisation Child Neave. Jeryl-lynn Govender in the Corporate Matters. Ms Searle worked as a bar- Four staff have been promoted to the team, Wellington has been promoted to rister and solicitor practising criminal position of senior solicitor, all in the firm’s senior solicitor. and family law before joining the New Christchurch office. Zoe Barnes in the Corporate – Tax team Zealand Police where she worked in the Rebecca Cook was in Auckland has been promoted to senior child abuse team as a detective. She admitted in August solicitor. has spent the last two years as general 2014 and holds LLB, manager of Child Matters. BA and LLM (first class honours) degrees. She specialises in building and construction law and has advised Crown

11 PEOPLE IN THE LAW August 2017 · LAWTALK 909

departments, building and construction specialises in immigration law and is fluent companies, and commercial and residential in Mandarin and Cantonese. As well as property owners and investors. providing immigration advice she provides Sophie Reese gradu- support to the firm’s Chinese clients across ated LLB, BA from the all practice areas. University of Otago and was admitted in July Peter Watts QC in 2014. She specialises in practice at Bankside resource management Chambers law and has advised local councils, major Former University of developers and community organisations, Auckland Professor of as well as commercial and residential Law Peter Watts QC property owners. has commenced full-time Sarah Copeland was practice at Auckland’s admitted in August Bankside Chambers. Mr 2014 after gaining an Watts specialises in the LLB at the University law of agency and com- of Canterbury. She is a pany and commercial law, and is editor of member of the firm’s Bowstead and Reynolds on Agency and co-au- dispute resolution team thor of Company Law in New Zealand. He and concentrates on civil and commer- was recently appointed Visiting Professor cial litigation and the at the Law Faculty, University of Oxford and resolution of insurance, will teach there in October each year. contractual and property disputes. Two new partners Winnie Chen graduated appointed at White LLB at the University of Fox & Jones Waikato and was admitted in July 2013. Winnie Christchurch firm White Fox & Jones has appointed two new partners. Stuart Stock joined the firm in September 2012 after spending six Information years as a partner in a boutique commercial in People property firm in London. Stuart was admitted as in the Law a barrister and solicitor in September 1993. He specialises in com- LawTalk is happy to publish informa- mercial property and insurance matters. tion free of charge about appoint- Mark Orman specialises ments, awards and other changes in commercial devel- in New Zealand’s legal profession. opment, buying and Please send your contribution to selling assets, leasing  [email protected], along and property finance. with a jpeg photo if appropriate. He was admitted as a To be able to include as many barrister and solicitor announcements as possible brevity in September 1998 and is key and material received may joined White Fox & Jones in January 2017 be edited. The information will also after working at national firms in Auckland be published in the NZLS website and Christchurch as well as time overseas On the Move section, which is ref- working for international firms in London, erenced in LawPoints each week. Abu Dhabi and Melbourne.

12 LAWTALK 909 · August 2017 NZLS AT A GLANCE

NZLS AT A GLANCE

Lawyers Complaints Service in its tenth year

he New Zealand Law and their resolution is transparent and easily accessible. Society is now into its tenth Elsewhere in this issue we provide some provisional Tyear as operator of the Lawyers information on the Lawyers Complaints Service in the Complaints Service. The Lawyers and just-concluded year to 30 June 2017. Conveyancers Act 2006 came into force The 2006 legislative reform also introduced a three-tier on 1 August 2008. The Act brought in system for resolution of complaints against members many changes to the regulation of legal of the legal profession and their employees. The Legal services, but perhaps the most signifi- Complaints Review Officer (LCRO) is funded by a levy cant was the requirement for the Law on all lawyers, but administered by the Ministry of Society to establish an accessible, fair Justice. The LCRO’s role is to review decisions made and efficient lawyers complaints service. by Law Society and Society of Conveyancers stand- This was a fundamental shift in ards committees on complaints against lawyers and the process for managing complaints conveyancers. Around 17% of complaints closed by the against lawyers. A national service Lawyers Complaints Service go on review to the LCRO. replaced the complaints handling The problem is that the LCRO has a backlog of over 500 measures of 14 independent district unresolved cases. It can take three years for a decision law societies and the limitations of to come from the LCRO. This is not acceptable. the former Law Practitioners Act 1982 which had little The Law Society is proud of the progress it has made built-in consumer protection. For complaints to be in introducing innovative processes in the Lawyers actionable, the conduct was required to reach a high Complaints Service. However, it is clear that the backlog threshold. From 2008 the governing legislation focus of cases filed for review by the LCRO must be fixed before shifted from lawyers’ fitness to practise to include and we can go any further. NZLS obviously has a big stake prioritise protection of the public. The Law Society was in helping resolve this. Each lawyer pays $125 a year to required to ensure the consistency and quality of the fund the LCRO. The worry and stress caused by waiting new complaints service throughout New Zealand. A for years for an LCRO decision is unfair on everyone. new threshold of unsatisfactory conduct with a stat- What could be a world-leading professional complaints utory definition was introduced. Non-lawyers were system is let down by the LCRO problems. required for the first time to serve on lawyers standards What needs to happen? It’s important to note that committees. The powers and jurisdiction of standards LCRO decisions are generally of a high quality. The prob- committees were significantly expanded. And the Law lem lies in the processes which the LCRO is required Society was required to report to the Minister of Justice to follow. What should be a quick and robust tribunal on the exercise of its regulatory functions and powers. is tied up with the need to hold a full hearing for every A lot has happened since 1 August 2008. The Law review unless the parties agree otherwise. From years Society and legal profession have embraced the broader of discussion and analysis – and I can assure you that horizons. The focus has been one of continuous improve- the Law Society has been active in pressing for change ment and development to ensure that all parties involved – it is clear a legislative change is needed. The Courts in legal services complaints benefit from an expeditious, and Tribunals Enhanced Services Bill is being drafted, impartial and very accessible process. A complaints and we are advised this will contain provisions which feedback system was introduced to assist with enhance- specifically target the LCRO’s problems. However, the ments. The Early Resolution Service introduced in 2013 progress of the bill is taking time. The New Zealand Law has made significant improvements in the time taken Society is aware of the growing exasperation of lawyers to handle complaints and in the experience of users. and others who are involved in the LCRO logjam. We Standards committee members receive focused training believe it is time to act and to introduce the bill into and regular reporting means information on complaints the parliamentary process. Christine Grice Executive Director, New Zealand Law Society.

13 NZLS AT A GLANCE August 2017 · LAWTALK 909

NZLS AT A GLANCE

Power to collect information on all NZ-written insurance urged

NZLS says the Reserve Bank should have the power – and where appropriate should exercise that power – to collect information about all insurance written in New Zealand, including insurance provided by foreign insurers. In comments to the Reserve Bank on its Issues Paper: ◂ At POLA, Review of the Insurance (Prudential Supervision) Act 2010, left to right, the Law Society says not all foreign insurers providing Kathryn insurance coverage in New Zealand are required to be NZLS President Beck and licensed. This is done on a case by case basis, and a Bronwyn recent IMF report has highlighted that there is no data attends POLA Jones on the number of overseas insurers offering insurance (NZLS), contracts in New Zealand without a licence. Majorie “The insurance prudential regulator needs to have New Zealand Law Society President Kathryn Beck Nichol and sufficient detail of the insurance business written in New attended the 28th Presidents of Law Associations of Pauline Zealand in order to be able to appropriately supervise Asia (POLA) Conference in Colombo, Sri Lanka from 22 Wright (Law insurers,” NZLS says in its comments. “The Law Society to 24 July. POLA was established in 1990 and its annual Council of recommends that the Reserve Bank be provided with meetings have been a valuable non-political conference Australia). more flexible exemption powers to permit appropriate for international knowledge exchange and co-operation oversight without inhibiting participation in the New between lawyers’ organisations. POLA is made up of 30 Zealand insurance market.” law societies, bar associations and lawyers associations across Asia and the Pacific. This year’s event was attended by over 300 delegates, and included sessions on professional privilege, tech- David Campbell nology and the future of the legal profession, the role of the legal profession in social justice, alternative dispute re-elected resolution and foreign direct investment. President of NZLS Auckland branch Agreement with David Campbell was re-elected unopposed as proposed Privacy President of the NZLS Auckland branch, as announced at the branch AGM on 21 June. Code amendments Mr Campbell is a partner with Kensington Swan and specialises in commercial and civil litigation and provides common law advice. NZLS says it agrees with proposed amendments Robert Makgill was elected to the Council and Chris to the Health information, Telecommunications Patterson and Sue Styants were re-elected. Information and Credit Reporting Privacy Codes Members of the branch Council after the AGM are to align them with changes introduced by the as follows: Intelligence and Security Act 2017. The Act comes President: David Campbell. into force on 28 September 2017 and NZLS has pro- Council: Sarah Armstrong, Robert Makgill, Chris vided comments to the Privacy Commissioner on Patterson, Charlie Piho, Suzanne Robertson QC, Sue the proposed changes. Styants.

14 LAWTALK 909 · August 2017 NZLS AT A GLANCE

CPD audits show Russell Boot elected increase in webinar/ NZLS Waikato online learning Bay of Plenty branch President The third full Continuing Professional Development (CPD) year ended on 31 March 2017. A target rate of 95% for declaration of compliance was Hamilton lawyer Russell Boot set, and by the declaration deadline of 7 April, 95.1% of has been elected President of lawyers had declared compliance. All non-declarations the New Zealand Law Society’s are followed up and by 30 June 99.89% of eligible law- Waikato Bay of Plenty branch. yers had completed declarations. Mr Boot was admitted as a bar- NZLS carries out audits of compliance with the CPD rister and solicitor in May 2001, requirements. A random process resulted in 1350 lawyers and was elected at the branch selected for audit – 10% of all lawyers. This was reduced AGM on 21 June 2017. He practises from 12% the previous year because of a high level of at Gavin Boot Law. compliance found in the two previous audits. A further Members of the branch Council 91 practitioners were added due to either a late decla- elected at the AGM are as follows: ration or where previous audit contact had suggested President: Russell Boot. a follow-up audit would be appropriate. By mid-July Vice-President: Terry Singh. 656 audits had been completed, with 71% meeting the Council: Phillip Cornegé, Brendan Cullen, James requirements. A further 13% were compliant with the Gurnick, Marie McLeod, Emma Miles, Rita Nabney, Johan CPD rules after receiving support from the auditor. Niemand, Adam Pell, Jesse Savage, Gene Tomlinson. NZLS Professional Development Manager Ken Trass says for the most part, the trends of the past two years have continued. Black hole “The average number of recorded hours in CPDPRs increased to 15.6 in the 2016/17 year, up from 12.1 in proposals 2014/15. CPD by learning area is spread among the various differing practice areas, but there has been a supported definite surge in in-house focused learning topics which were up 5.3% to 22% of all topics,” he says. “Significantly, CPD by webinar or online platforms Government proposals to seek has increased again and made up 28% of all training in greater certainty through legislation 2016/17, and this was up 8.2% on the previous year. By in respect of the tax treatment of contrast, external courses or seminars made up 32% of “feasibility expenditure” and to all CPD in 2016/17, which was down 9.2% on the previous address anomalous instances of year, and down 22% since 2014/15.” “black hole” expenditure are supported by the New Zealand Law Society. NZLS has commented on the discussion document Black hole and feasibility expenditure, which proposes a new, specific deductibil- Trusted practice management ity rule for feasibility expenditure that is based on the IFRS treatment software for NZ lawyers of such expenditure. Noting some Easy to learn, easy to use. Save time and potential issues with the definition ! of “feasibility expenditure”, NZLS increase profits. That’s what users say has suggested that further consider- New: Document management & Internet banking. Free installation and ation be given to the definition and training. Visit our website for testimonials from firms just like yours. in particular whether a time-based “commitment” element is necessary www.jpartner.co.nz [email protected] 09 445 4476 JPartner Systems Ltd or desirable.

15 NZLS AT A GLANCE August 2017 · LAWTALK 909

Law reform committee applications sought

The two-year terms of appointment to the Law Law reform Society’s law reform committees expire in September, and applications are now open for committees which involvement has will operate from September 2017 to September 2019. Section 65(e) of the Lawyers and Conveyancers Act 2006 many benefits requires NZLS to assist and promote, for the purpose of upholding the rule of law and facilitating the administration of justice in New Zealand, the reform of the law. Participation in the law reform process This continues a long history of involvement by the Law through membership of the NZLS Society in New Zealand law reform, with 15 specialist Employment Law Committee has been one committees and the NZLS Law Reform Committee at of the most rewarding experiences I have had the forefront. in my legal career. Like all the committees, Comprised of volunteers from across the legal pro- the Employment committee was made up fession, the committees have input on a wide range of of lawyers from around the country. What legal issues and prepare submissions on matters ranging brought us together was a shared interest from discussion papers, exposure drafts of legislation, in employment law and practice. I was legislation reviews, and parliamentary bills. Applications impressed with the collegial spirit which should be made before 5pm, Friday 11 August on the was there right from our first meeting, and application form. the working relationships which were struck between members have endured. I have a The form and information on the committees is passion for the law of employment and it available at lawsociety.org.nz/law-reform-2017 or is an invigorating experience to work with from [email protected]. others who have the same interests – even if we might respectfully disagree sometimes on the correct way forward. It’s very different, however, from representing and advocating NZLS Wellington for the interests of a client. The committee discussion is about the best way forward for branch election the law as it affects all New Zealanders. How will a proposal work in practice? What are not required the likely issues? Working on a NZLS law reform committee also gave me a feeling that I was there at the Because the number of nominations did not exceed development of an important area of law. Our the number of available positions, no election was committee had an underlying air of shared required at the AGM of the NZLS Wellington branch purpose and a sense that we were engaged on 21 June. Amendments made to the branch rules in an important collaborative exercise that in 2016 mean the new Council has been elected for a would have tangible benefits for our country, two-year term. now and into the future. This is important Members of the Wellington branch Council are: work and I would urge any member of the President: David Dunbar. profession who would like to indulge their Vice-Presidents: Annette Gray, Steph Dyhrberg. passion for the shape of a particular field of Council: Arti Chand, Chris Griggs, Yemo Guo, Jessie law with the chance to make a real contribu- Hunt, Mike Lennard, Cathy Rodgers, Mark Wilton, tion to the justice system. Gretchen Freeman (Wairarapa representative), Emma Kathryn Beck, von Veh (Young Lawyers representative), Mark Wilton President, New Zealand Law Society (ILANZ representative).

16 LAWTALK 909 · August 2017 LETTERS TO THE EDITOR

Letters to the Editor

Read your own achievement of those lawyers who were expiry date has now been transferred to All Blacks should still be celebrated and I the reverse of the licence. This now requires unconscious decided there was no reason not to publish two pages to be copied and retained with the story, as long as we also took steps each A & I form for each person on each bias articles to recognise the contribution made by transaction. women lawyers to New Zealand sport. Result: The profit of the practice of law A story on All Blacks who are/were As soon as the All Black article went off is hard to sustain as overhead costs eat lawyers might set the hearts of half your to print we started researching lawyer par- away at it. The change has doubled the readership thumping and even allow ticipation in other sports, and the results time and cost to obtain proof of ID. A minor them to spend a six-minute unit or two for our netball research can be found in cost individually but costly cumulatively. dreaming of swapping their pinstripes for Tail End on page 90. a pair of studded rugby boots, but spare Land transfer tax statement a thought for the 50% of lawyers who How did the Section allow a comparatively aren’t blokes. Yes, I’m talking about all Property Law simple one-page form to be converted to the women lawyers out there who are also/ a nonsensical three-page form? I hear the have been athletes. Where are they? Let’s Section – What change was due to “some lawyers” not find them and devote as many column being able to understand the one-page inches to their dual achievements as you does it do? form. If that is the case and they were have to the chaps. confused should they be entitled to prac- So I’m looking forward to a follow-up It being Queen’s Birthday weekend and tice in the conveyancing field? Hundreds story about all the women lawyers who having missed out, again, for I don’t know of lawyers practising as conveyancers did have represented New Zealand across a how many consecutive years on obtaining not find the form confusing. range of sports given you can’t do a story an award it seemed timely to put pen to Result: This change has resulted in three about women lawyers who are All Blacks paper if for no other reason than to fill the times the copying and storage costs (see because the NZ Rugby Union are yet to pages of your august journal. above). drag themselves, mauling and rucking into I don’t want to seem curmudgeonly but the 21st Century and ‘allow’ women to be what exactly does the Property Law Section full All Blacks too – with all the status, do about the pragmatic aspects of convey- opportunity and yes the tidy pile of money ancing which is, after all, about property that finds its way into the bank accounts law. It is appreciated that the section does of male professional rugby players. excellent service on the esoteric aspects of It’s pointless running endless articles the genre but the day-to-day grassroots on unconscious bias when the editorial lawyers seem not to be so well served. decisions which led to the All Black story Can this section answer the following? demonstrate the bias is alive and well - in the newsroom at LawTalk. Driver licence ID Josie McNaught Have representations been made to the Wellington government (or whosoever authorises driver’s licences – AA?) to revert to having LawTalk Managing Editor the expiry date of the licence on the front Geoff Adlam replies: of the licence document? Ms McNaught’s points are accepted. I’ll We are asked to police ID for LINZ point to myself as the author of the lawyer dealings. An acceptable, but not always All Blacks story. My worry about missing reliable, ID purports to be a photographic someone out (which was realised) was ID issued by the government. This is gener- equally matched by a feeling of unease ally accepted to be (only) a driver’s licence over the fact that half of New Zealand’s or passport. It used to be that a one-page lawyers were ineligible and concern at photocopy of a driver’s licence was ade- how this could be received. The possibility quate as it showed the licence currency. For of bias did come to mind. However, the some unknown, and an illogical, reason the

17 LETTERS TO THE EDITOR August 2017 · LAWTALK 909

LETTERS TO THE EDITOR

Liaison with the Bankers Association how many acres of storage they own e-dealing consultant on current practice What liaison does the Section have with in order to maintain their file copies of matters and legislative change. the Bankers Association? I have two issues paper documents. I suspect none. They The Section has regular relationship with the cost banking practices impose on are content to waste our paper, time and meetings with all manner of stakehold- practices apropos conveyancing. cause undue expense just to have the paper ers that impact on property lawyers. The first is an observation and a request. copy go to the tip. This is a monumental That includes a number of government Would it be possible for the Section to waste of paper, cost and time. The section departments such as LINZ, IRD, MBIE, advocate to the banks that they give an could perhaps advocate with the Bankers MOJ, etc. We also meet with senior bank- indication/estimation of the amount they Association a standardised process to ing representatives from major banks to expect to be paid in consideration of the enable the efficient conduct of what is after discuss current practitioner concerns. That discharge of mortgage at the time the all a commercial business for both parties. relationship is such that some banks are mortgage discharge is requested? now prepared to engage with the Section Reason. Colleagues have been sur- Why does the ANZ Bank as a ‘sounding board’ for changes to their prised at the last minute when settling a not trust lawyers? procedures and documentation. transaction to find the amount required They require a certified copy of an A & I Members of the Section are often asked by the bank is substantially more than form plus a copy of the title and VID prior to advise of issues or concerns they may indicated by the client who did not know to the drawdown of funds indicating that have with specific aspects such as bank that all advances, including personal loans, they not do not trust us to do our job. Every instructions. The Section then engages overdrafts, credit cards etc, would need to other bank appears to trust the profession. with the bank to discuss concerns and be repaid if the security was discharged. Result. Ask the ANZ to cease this make- look for mutually beneficial solutions. It This has also happened where a separate work, time-wasting and cost-incurring is also relevant to point out that all of the mortgage over a different property is also process. members of the Executive committee are “called up” on a sale. That is it, for now. involved on a daily basis with property files Result: if an indication was made early I look forward to a response from the and also have a vested interest in ensuring any problems could be sorted out and Section, hopefully with proposals as to the greatest efficiency possible. negotiated other than on settlement date. how it is intended that these problems It is important to note that while the be resolved by: Section welcomes constructive suggestions The law firm as a printing company • Having the expiry date returned to the for improvements that can be made in Banks are crowing about growing and front of the licence, property law practice, it is not a ‘lobby advertising their indecent profits. This is • Simplifying the tax form, group’ and must maintain a politically not surprising seeing conveyancers are • Bankers Association recommending an neutral stance. Its statutory function is now their printing companies. It is not indication of debt, electronic signature to provide services and facilities such as uncommon to be required to print 100 processes and the ANZ trusting the seminars, education, training and other pages of bank “stuff ” to satisfy the bank conveyancers. materials, in order to represent its mem- requirements for security and disclosure. Grant Aislabie bers and serve their interests (ss 66 and The bank is happy to electronically provide Auckland 68 LCA). As noted above, the Section does instructions to practitioners but provides make contact with its various stakehold- no means, or authority, for the documents Duncan Terris, Chair ers when appropriate, to try to achieve to be signed in an electronic form. Yes, of the Property Law solutions. there will be a valid (in their minds) reason Section, responds: The reality is that virtually all of Mr why they don’t – but we put a man on the The Property Law Section thanks Mr Aislabie’s points have in fact been histor- moon (I think!) So somehow it should be Aislabie for his letter and takes the oppor- ically addressed by the Section and some able to be done. tunity to clarify the role and the Section are ongoing. Some key ones are addressed Result: Signed scanned copies of bank and address some of the issues raised. as follows: documents are happily received by most By way of background, the Section has banks leaving the paper copies on our more than 1,400 members and provides Drivers licences as ID files to be destroyed. Some banks require regular practical and current information for LINZ dealings belts and braces. Not only do they require to its members via e-bulletins and The There was extensive analysis of how to mit- a scanned copy they also require the orig- Property Lawyer magazine publication. igate incidence of fraud with the abolition inal “blue ink” copy. When this bank was That magazine has regular columns from of duplicate paper titles almost 15 years ago questioned why they could not answer the Registrar-General of Land and NZLS in 2002. NZLS was involved extensively

18 LAWTALK 909 · August 2017 LETTERS TO THE EDITOR

in those discussions. There needed to The Section is having ongong discussions be a balance between the risks and the with LINZ and IRD on specific aspects of Discharge of Mortgage pragmatism of day-to-day practice. It is concern or confusion. The rationale for the Repayment Estimate also important to note that there are other most recent change to the Tax Statement This has been addressed in the latest verification aspects required in addition to was due to inaccurate information being issue of The Property Lawyer magazine. just the ID, such as documentation linking collected on the forms. It had been discov- Mr Aislabie has really answered his own that person to the property address. ered that a number of clients were filling question by reference to the complexities The Section did liaise with the LTSA in the answer to question Q2.2 incorrectly, of most clients’ financial arrangements with the change in procedure to have the which invalidated the data collected in that in today’s banking. It is not possible to expiry date on the reverse of the licence. section. In addition, LINZ had worked assess in advance the amount required to The answer is simply that if there is more with Statistics New Zealand over a more discharge a mortgage: the way ‘all obli- than one class of licence, they all have logical layout for the Tax Statement form, gations’ mortgages are structured, with different expiry dates, depending upon the to provide for more accurate completion. multiple facilities such as revolving credit, requirement for each class. There can be a The data collected on the form complies business and personal overdrafts, credit number of ‘classes’ on one licence such as with statutory requirements. cards etc, means the repayment amount car, motorcycle, HT, Forklift, etc. There is can fluctuate daily. For that reason, most simply not enough space on the front of Liaison with the Bankers’ Association banks simply cannot provide the figure in a licence to include all that information. The Bankers’ Association (NZBA) is a forum advance of settlement day and it would be Modern photocopiers allow a piece of for member banks to work together on potentially misleading to do so. paper to be fed through twice, to allow non-competitive industry issues. It is both the front and back of a drivers licence funded by its member banks and governed Bank Requirements to appear on one page. by a Council that comprises the chief exec- Most of the major trading banks do not utive of each member bank. NZBA has a require hard copy signed documents to Tax Statements code of banking practice, to which Bankers’ be returned if they have been provided The Section was involved with both LINZ Association members agree to observe, but electronically. That is certainly the case for and IRD in extensive communications which is subject to other Codes, Acts of ANZ, BNZ, Westpac and Kiwibank. As for by way of correspondence and meetings Parliament, or internationally accepted the need to print documents for clients, regarding the initial and current Tax banking standards or practices. Some surely it is preferable to receive instructions Statements. The one originally proposed bank’s competitive products and services electronically than the inherent delays was in fact much longer than what was may have their own terms and conditions, caused by waiting for mail or courier. The ultimately used. therefore there is not always consistency costs of printing and copying are legitimate As part of this consultation, Section in systems or policies between banks. office expenses that a reasonable charge members were consulted. Large numbers Because of this, the Property Law Section may be made by way of an ‘office service’ of lawyers provided items of feedback on has instead established and continues to fee or absorbed in the general fee charged. the proposed layout of the form, all of build relationships with the individual The Section has had recent discussions which were considered by LINZ in the banks. with ANZ around documentation required, final version of the Tax Statement. which is currently under review.

19 ACC · UPDATE

UPDATE ACC ACC and appeals to the Supreme Court

BY DON RENNIE

On 1 April 1974 at the commencement of the amended Accident Compensation Act 1972, there was a massive and lasting change made to personal injury law in New Zealand. The common law right to sue for damages was removed and replaced with a statutory system that applied to all personal injury suffered in New Zealand by earners, non-earners and visitors. Since then, the legislation governing the accident compensation scheme has undergone a number of changes. One feature that has however remained unchanged is wrote to the ACC Minister, Michael Woodhouse, seeking that the right to appeal ACC’s decisions stops at the an amendment to the AC Act. The minister responded Court of Appeal (appeals to the Court of Appeal require that he did not consider there to be sufficient justification leave and are limited to questions of law). to consider amending the legislation to allow higher Limiting appeals to the Court of Appeal may have made appeals for ACC reviews. He noted that “the limitation some sense when New Zealand’s court of last resort on appeals relating to reviews to the Court of Appeal only was the geographically distant Privy Council, charged has been a feature of the Scheme since its inception.” As with hearing matters from the whole Commonwealth. appeal pathways to the Supreme Court fall within the However, since 2004, New Zealand’s highest court has Justice portfolio, the Minister for ACC referred the Law been the Supreme Court, based in Wellington. It is Society’s letter to the Justice Minister for her review. anomalous that such significant and complex legislation The Minister for Justice advised that at the time the (involving fundamental rights of individuals who have Supreme Court Bill was being drafted, a review was no legal right to bring private proceedings in respect undertaken to determine the appeal pathways. Because of their injuries, and are often vulnerable as a result of of the complexity of existing appeal rights, and the then those injuries) cannot be interpreted by New Zealand’s forthcoming Law Commission report on its review of highest court. the courts and tribunals system, the decision was made A recent Supreme Court decision, J v ACC [2017] NZSC not to change the general appeal provisions for “most 3, has highlighted this anomaly. In that case, the judge tribunals, including ACC”. The Minister noted that the noted that the advisory group reporting on the Supreme Law Commission report was not implemented at that Court Act 2003 was of the view that the jurisdiction time, and “a further review of appeal pathways is not of the Supreme Court should be comprehensive, and currently on the Ministry of Justice’s work programme”. that the Supreme Court Act was intended to achieve It appears that the reason the appeal pathway has “the general principle that any matter should be able not been opened is purely the result of administrative to be appealed to the Supreme Court with the leave of process (ie, that there was a pending Law Commission that court”. The AC legislation has not been amended report on its review of the courts and tribunal system, to achieve this end. Although the appeal in J v ACC was and the Law Commission report was not implemented dismissed, the court was not satisfied that the principle at the time) rather than for policy considerations. of complete comprehensiveness of its jurisdiction had With regard to the reference to tribunals in the been satisfied, nor could it identify a particular reason Minister’s letter, it is noteworthy that the Law why the law has not been amended. Commission report referred to by the minister, Delivering Following the decision in J v ACC, the Law Society Justice for All, contains in Part 7 a review of tribunals

20 LAWTALK 909 · August 2017 UPDATE · PROPERTY LAW

but makes no specific reference to the ACC statutory review and appeal UPDATE system. It deals with tribunals PROPERTY LAW described as “a statutory body with all or most of the characteristics that”: • It is independent of the admin- A New Land istration and deals with cases impartially between the parties before it; Transfer Act • It reaches binding decisions; • Its decisions will usually be made by a panel or bench of members BY THOMAS rather than by a single adjudicator GIBBONS who is not a judge and often not a lawyer; not land is transferred, and arguably • Its procedure is similar to but The main thing I remember from ‘Land Titles Act’ would be a more more flexible and simpler than a the land law class I took at law apposite description. court of law; school was the notion of ‘indefeasi- Some terminology is fixed; • It will have been established spe- bility’, a word I have still never heard other terminology is more flexible. cifically to deal with a particular used outside land law (by way of Lawyers should now get used to the type of case or a number of closely comparison, words like caveat, and phrase ‘record of title’ (rather than related types of cases. even moiety, have a place in other ‘certificate of title’, or ‘computer Obviously the ACC review and contexts). Fels v Knowles, and Frazer register’): see section 12. Title, appeal process does not reflect these v Walker, and all that. One of my we are reminded, is obtained by criteria or characteristics and is not theses – opinions – has been that registration: ‘Title by registration’, a tribunal. Frazer v Walker was such a lightning section 51. The ACC review and appeal bolt to a generation of land law system is designed to determine scholars that questions of imme- Manifest injustice the meaning of the wording and diate and deferred indefeasibility In one notable reform, a person intent of the legislation in relation to supplanted discussion of almost all (A) who is deprived of an estate a whole range of events. In addition other topics for a significant length or interest by the registration it deals with the legal rights not only of time, leading our land law study of a void or voidable interest by of claimants but also of employers, to focus attention on the register another person (B), or who suffers the self-employed, and other levy above almost all other topics. loss or damage by the registration payers. It deals with highly complex of a void or voidable interest by legal issues like ‘causation’, medi- The Land Transfer another person (B), may apply to cal injury, hearing loss, ingestion Act 2017 the court for an order cancelling the of toxic substances, self-inflicted It is entirely appropriate that 50 registration of B. This remedy is only injuries, injuries sustained during years after Frazer v Walker, new land available if the court is satisfied it the commission of a crime and transfer legislation will finally see would be “manifestly unjust” for B numerous other events which result the light of day. The Land Transfer to remain the registered owner, and in a claim being made. Bill received its third reading on 4 forgery or other dishonest conduct ACC law applies universally to all July 2017, and at the time of writing does not of itself constitute manifest aspects of unintended accidental is awaiting royal assent. It has had injustice. The notion of an ‘section injury suffered in New Zealand. It a reasonable gestation: the Law 57 application’ may yet gain traction is inexplicable that there is no right Commission’s Issues Paper was in LTA parlance. to appeal, with leave, to the highest released in 2008, and its formal court in the land to determine the report and draft bill in 2010. A bill Covenants in gross meaning of the legislation in rela- was introduced to Parliament in Section 115 allows for ‘covenants in tion to anything which results in a early 2016, and received the Royal gross’ to be noted on the register, claim on which the ACC has made Assent on 10 July 2017. and sections 240 and 244 of the an adverse decision. Where it is a Land Transfer Bill insert a number question of law the Supreme Court Terminology of new provisions into the Property must have the final say.▪ The terminology ‘Land Transfer Act’ Law Act. These reforms have been in goes back to 1870, but invites com- the works for some time, though it is Don Rennie  rendon@actrix. ment. There can be no doubt that useful to remember that it was only gen.nz is convenor of the New it facilitates transfer, by providing in the mid-2000s that the enforce- Zealand Law Society’s Accident clarity and certainty on land owner- ability of encumbrance instru- Compensation Committee. ship, but the Act applies whether or ments was decisively determined.

21 PROPERTY LAW · UPDATE August 2017 · LAWTALK 909

UPDATE BANKING Bank on change

BY TINA MITCHELL

This year marks the silver anniversary of the New Zealand Banking Ombudsman Scheme, and it is remarkable to look back on banking, and banking complaints, over the last 25 years. When the Banking Ombudsman Scheme started out in 1992, we had been dealing with our money the same way for decades. Banking was done at branches, payments were mostly by cash or cheque and EFTPOS machines were rare. But a technology boom was about to hit. ‘Brick’ phones were getting smaller, the internet was only two years away and text messaging was about to be invented – the world’s Encumbrances, of course, often of household wealth (conversely, first text was sent by a British soft- protect covenants in gross (that is, mortgages are an important compo- ware engineer on 3 December 1992. covenants in favour of a person, nent of household debt). It remains Fast forward 25 years and bank- rather than covenants in favour of important that land transactions ing has come a long way. Very few other land). My assessment is that can be carried out in a way that people visit a branch, most pay- it is likely that covenants in gross provides and promotes confidence. ments are cashless and we use our will become a common tool of land We have all got used to Landonline, phones to do the lot – bank, pay, lawyers, though encumbrances and further reform is ahead with the trade and budget. Anyone aged still have their place. Notably, the ASaTS (Advanced Survey and Title under 30 is considered a digital courts retain the power to modify Services) project. native as they have not known life or extinguish covenants in gross, as If land transfer legislation can be before the internet. they do with positive and restrictive made clearer and more modern – As banking has changed over covenants, but this will not extend more accessible – it should be, and the last 25 years, so have banking to existing covenants in gross con- the modernisation of this critical disputes. These days a banking tained in encumbrances. area of legal practice is therefore dispute is more likely to be about to be welcomed. online scams or the costs of lending Conclusion than cheques or fees. The timing is both appropriate and Thomas Gibbons  thomas. The Banking Ombudsman Scheme interesting: it’s not like technical [email protected] is a was the first of its kind when it land law reform is an election issue. director of McCaw Lewis Lawyers was established in 1992. The banks But modernising the Land Transfer in Hamilton and specialises in funded it as a free dispute resolu- Act is important. Property is a signif- property and commercial law. He tion service for their customers. icant part of the economy: our larg- is the author of Unit Titles Law and It meant customers could raise est industry (see www.propertynz. Practice (LexisNexis, 2nd edition, issues they wouldn’t have had the co.nz/economic-significance-report). 2015) and co-author of a number time or resources to pursue through Land is an important component of other titles on property law the courts. It was a fair, simple and

22 LAWTALK 909 · August 2017 UPDATE · BANKING

speedy way to resolve disputes, at no cost to the customer. Pioneering step It was a pioneering step for consumer protection – no other area of the private sector had taken up the ombudsman concept at the time. And it was a step the banks took upon themselves to progress, well before the government requirement in 2008 for all financial services and lenders to be part of an independent dispute resolution scheme. The scheme had to work hard in the early days to establish its independence, integrity and authority. Complaints generally required investigation, and a detailed determination much like a court judgment. Correspondence ▴ From left to right, Banking Ombudsman Nicola Sladden, Deputy Banking was comprehensive and formal, Ombudsman – Prevention, Tina Mitchell, Board Chair Miriam Dean CNZM QC largely to assure complainants that and Deputy Banking Ombudsman – Resolution Sarah Parker. the scheme had thoroughly considered all of the matters raised in the complaint. Overall the banks supported the scheme, but they and new standards of conduct. were often more adversarial than they are now, with But the scheme is still working at the forefront of at least two banks threatening to withdraw from the dispute resolution. It now has an increasing focus on scheme in response to receiving adverse decisions. prevention and education, for banks as well as custom- They struggled to get past their indignation at being ers. The lessons from casework are fed into the scheme’s the subject of a complaint, just as they found it hard website, social media and education material and, as to consider what might have led to a complainant to a result, the case numbers are changing, with a much becoming so unhappy. This is a far cry from today’s larger proportion of cases resolved at the early stages in attitude by banks, which is to see complaints as a way recent years. Remaining relevant and accessible, espe- to learn from and improve their practices. cially to younger customers, has been another priority. Once it had established its reputation for fairness and This will continue to shape the communication channels independence, the scheme was able to encourage direct the scheme uses to connect with its audiences. and early resolution, which meant a better chance of The scheme has been at the forefront of change in getting the bank-customer relationship back on track. more ways than one. It is led by an all-female leadership The scheme has the freedom to apply best practice, and team – the Chair of the Board, Miriam Dean CNZM QC, to look at what is fair and reasonable – while still being the Banking Ombudsman, Nicola Sladden, and her two guided by the law. Complaints are often resolved by deputies. In fact since its inception in 1992, the Scheme facilitation, either before or during the formal investi- has always been led by a female Banking Ombudsman, gation stage. Even disputes that go to an investigation namely Nadja Tollemache, Liz Brown and Deborah and formal decision are dealt with comparatively swiftly. Battell. If the past 25 years are any guide, the scheme will Changing expectations continue to have its hands full in the years to come. The Customer expectations have changed. With the rapid future of banking will be shaped by technology and inno- growth of technology in recent years, people now expect vation, by the law, and by our social and demographic the world to turn faster, and real-time solutions are the changes. But no matter what the sector may look like in priority. The scheme has to be faster and more innovative the years to come, the scheme will continue to provide with resolution services and use of technology to meet fair, fast and free dispute resolution. ▪ those expectations and remain accessible. As the global marketplace expands, new issues arise Tina Mitchell  [email protected] is the with customers dealing in different currencies and Deputy Banking Ombudsman – Prevention. Her role is payment platforms. Many of the intermediaries have to share insights from cases and sector developments been removed and customers now purchase directly to encourage best practice by banks and informed from the source at speed. But with that brings the risk banking decisions by customers. of cybercrime and the need for personalised controls

23 ▴ NZL-32 ‘Black Magic’ racing against Australia UPDATE during the 1995 Louis Vuitton Cup in San Diego. CONSTRUCTION LAW  Port of San Diego CC-By, https://flic.kr/p/9kggf8

requirements in sufficient detail America’s Cup 2017 to define a design brief. • Procure an amendment to the Local Government Act to enable Lessons learned from 1995 the ARST to carry out the development. BY JOHN WALTON • Finalise the overall design of the yacht basin, with the body to pay for them. agreement of the eight councils. After all the heartache of 2003 and 2013, the The Lighter Basin and surround- • Obtain consents (with urgency). America’s Cup is coming back to New Zealand; and ing land was, at that time, held Appoint a design and construct already the media is reporting the economic benefits by the port company; it was also contractor. of a possible defence in Auckland. heavily contaminated and a far cry • Negotiate grant funding from The odds are that it will be held in the City of Sails – from the vibrant area it is today. To the Government. and that seems the logical option – but there remains their credit, the ARST took a broader • Obtain a coastal permit for the a possibility of it being held elsewhere in New Zealand. view, looking for regional benefit, permanent occupation of the The Auckland Council says private enterprise will need rather than subsidising a new wharf seabed. to meet the costs, while the Government has offered for the port company; a “hook” The first task was to get widespread some financial assistance (it’s an election year after all). outside the bascule bridge, leaving acceptance that the Viaduct Basin There is a strong sense of déjà vu about all this. For the Viaduct Basin largely untouched was the logical place for the develop- 2017, much of what we learned remains relevant. (and un-remediated). ment, and to agree an overall design. In April 1996, the Auckland Regional Services Trust Extending a new wharf outside the (ARST) was visited by Peter Blake, as he was still known A long task list bascule bridge and creating a maritime then, representatives of the port company and the Yacht With challenging syndicates arena was not, in retrospect, as difficult Squadron. Their message – Auckland needed new facil- expected to arrive in the next 18 to agree as it might have been. ities for the syndicates competing in the America’s Cup months, the task list was long: The legislative amendments defence in 2000, and the ARST was the most appropriate • Establish the syndicates’ were similarly not as problematic

24 LAWTALK 909 · August 2017 UPDATE · CONSTRUCTION LAW

as we feared, and resource consents enjoyed relatively wide community support. No one wanted to appear to be obstructing a sporting event with such popular support. Selecting and appointing the construction contractor was more challenging. While we had an overall design for the new yacht basin, we needed to engage a designer and contractor to provide the detailed information as soon as we could for consent purposes. Procurement The most logical procurement method for the ARST was a single point of responsibility, design and construct contract. The driving factor was a suitable development, ▸ Sir Peter delivered on time. From a design Blake and perspective, while we had every Team New faith that Team New Zealand would Zealand at retain the Cup, it was never the a victory intention to keep the Viaduct Basin parade as a permanent facility. When the along Cup was wrenched from our hands George St on that dreadful day in 2003, the in Dunedin Basin was always going to be turned following over to alternative uses by the City the and adjoining land owners. successful Rather than engage in an alli- America’s ance or collaborative working Cup arrangement (effectively cost-plus defence in contracting), we selected a contrac- 2000. tor, following a public invitation to  Dunedin City Council Archives submit statements of capability, for CC-By-NC, https:// a two-stage appointment; the first to flic.kr/p/VCz71z and https://flic. complete detailed designs and con- kr/p/VCz6Hk struction methodologies to support the resource consent applications of all intellectual property in all design and construction and 2003 America’s Cup events is and to prepare detailed pricing for documentation prepared in stage 1 and prices reviewed there for all to see. a lump sum design and construct by quantity surveyors, supported the prices provided From the 2000 defence, the contract; and second, to carry out by the contractor. In the event, stage 2 was awarded. ARST requiring the development of the construction work. facilities which provided long term This had the considerable advan- Similar challenges now benefit to the region was critical. tage of helping to define the project In 2017, the challenges are similar. A walk around the Basin, across and to provide a certain price for Once a suitable area has been found which provides the new lifting bridge to the Wynyard construction. The downside, of suitable space, which guarantees public involvement Quarter on any day or night of the course, was that this process lacked and Team New Zealand, as defender, and the challenger week is testament to that. ▪ the price tension of a traditional of the record, Circolo della Vela Sicilia, have settled on competitive tender. the boats to be used, the detail of procuring property John Walton  john@johnwalton. To provide some comfort on rights, resource consents and appointing a construction co.nz is a barrister practising at pricing, we reserved the right in the contractor can begin. These are tasks which are made Auckland’s Bankside Chambers original tender process and in the considerably easier by getting all interested parties and specialising in construction stage 1 appointment, to benchmark together and to have them work to the common goal law. From 1995 to 2002 John was pricing and if we were uncomforta- of making the event a success. That the Swiss and the legal adviser to the Auckland ble with the prices provided, to put Italians have already indicated that they will return Regional Services Trust (and subse- the works back to tender. To this to Auckland in four years to challenge for the Cup is quently Infrastructure Auckland) on end, the ARST procured ownership testament to that. The goodwill generated by the 2000 property and construction matters.

25 COMMERCIAL LAW · UPDATE August 2017 · LAWTALK 909

UPDATE COMMERCIAL LAW Commerce Commission takes steps to protect consumers from certain third-tier lenders

BY HANNAH incomes and poor credit histo- In 2014, the Commerce Commission began a year-long MUSGRAVE ries. Mobile traders are often investigation into the conduct of mobile traders to mon- referred to as ‘truck shops’ itor, educate on and improve compliance with consumer these are businesses that do not protection legislation. The resulting report entitledMobile After a wave of investigating have fixed retail premises in the Trader 2014/2015 Project found that 31 out of 32 mobile and prosecuting mobile traders, the traditional sense. Some oper- traders were in breach of the CCCFA and FTA by: Commerce Commission appears to ate mobile shops usually from 1 Failing to include required information in their have redirected its attention to lend- trucks, whilst others employ contracts, ers as creditors who offer high-cost, sales staff who sell goods door 2 Failing to deliver goods purchased or delivering them short-term loans (third-tier lenders). to door, using catalogues and much later than represented, Since March 2016, five lenders brochures. 3 Preventing customers from exercising their statutory of short-term personal loans have “They sell predominately or and contractual rights to cancel agreements, been ordered, or have agreed, to exclusively on credit, lay-by or 4 Using terms in contracts to ensure continued payment pay over $3 million for breaches of other deferred terms and often such as obtaining multiple signed direct debit forms, the Credit Contracts and Consumer to those, as I have said, with requiring customers to continue to make payment Finance Act 2003 (CCCFA) or the Fair low incomes and poor credit after the item is fully paid to build an account credit Trading Act 1986 (FTA). histories. The price of goods is and requiring a home visit that the customer pays The most recent of these is Acute often significantly higher than for before a refund is granted, Finance Ltd. On 23 June 2017, Acute would be charged for compara- 5 Failing to promptly pay refunds, was fined $22,000 for charging an ble goods by mainstream retail 6 Using advertising that does not specify the total cost unreasonable waiver fee – a man- traders.” to the customer or the details of the product to be datory fee for which Acute would — Commerce Commission v purchased. meet the borrower’s obligations if Betterlife Corp Ltd [2016] In response to these findings, the Commission initially they died, became disabled or were NZDC 10579 at [7]-[8]. provided compliance advice to mobile traders, which set made redundant. out business practices that the Commission considers This article discusses the to be unlawful. The Commission then commenced pros- Commerce Commission’s investi- ecutions of those mobile traders who continued to be gations and prosecutions of mobile Mobile traders non-compliant, in a further attempt to change industry traders and third-tier lenders, and are often referred behaviour (R v Smart Shop Ltd [2016] NZDC 19377 at [14]). the key provisions of the CCCFA and to as ‘truck The Commission has successfully prosecuted 12 mobile FTA that impose obligations on to shops’ these are traders since January 2016. In the majority of cases, the these lenders. It then suggests that, businesses that mobile trader was fined for breaches of the CCCFA and in future, the Commission is likely do not have fixed FTA. The Commission notes that the five mobile traders to take a more rigorous approach retail premises sentenced in 2016 were fined a total of $510,000. to prosecutions, which may include in the traditional To date, mobile traders sentenced in 2017 have been the prosecution of more directors of sense. Some fined a total of almost $200,000. Some mobile traders lending companies. operate mobile have also refunded fees that were charged when they shops usually were not entitled to do so (for example, Commerce Mobile traders from trucks, Commission v Ace Marketing Ltd [2016] NZDC 19165). Mobile traders are described by the whilst others The director of one mobile trader, Flexi Buy Ltd, was Commission as traders that: employ sales staff sentenced to two years’ imprisonment as a party to Flexi “…[sell] high priced consumer who sell goods Buy’s misrepresentations to customers. The company goods on credit, using a vari- door to door, made false representations that it would deliver goods ety of sales techniques and using catalogues after partial or full payment for goods, and omitted to often to those who have low and brochures. inform customers of a material particular (namely that it

26 did not intend to supply them with the goods they had lenders in the market. purchased). Of Flexi Buy’s over 300 customers, only nine The nature of third-tier lenders’ Credit Contracts received their goods. Judge Cunningham found that the non-compliance also seems to be and Consumer director aided Flexi Buy to make such misrepresentations more limited than mobile traders. Finance Act 2003 (R v Mehta [2016] NZDC 233773). This flows from third-tier lenders’ The CCCFA applies to “consumer narrower role. Mobile traders are credit contracts”: where the debtor Third-tier lenders involved in both financing and is a natural person and the credit is In February 2016, the Commission announced the providing the goods purchased, intended to be used for personal, commencement of a project similar to that carried whereas third-tier lenders are only domestic or household purposes out in relation to mobile traders, but which focuses on involved in the former. For this (CCCFTA, s 11). third-tier lenders. reason, the Commission’s interest As a result of amendments to the The Commission’s interest in the conduct of third-tier in third-tier lenders focuses on the CCCFA that came into force on 6 lenders naturally follows from enforcement action taken failure to disclose information and June 2015, the regulatory framework against mobile traders. Third-tier lenders have the same charging fees that are unreasonable. available to the Commission when target audience as mobile traders, namely those who Directors of both mobile traders investigating third-tier lenders is have low incomes or poor credit history who therefore and third-tier lenders are nev- broader than when it produced cannot access mainstream credit facilities. ertheless exposed to the risk of the Mobile Trader 2014-/2015 Project The Commission began reviewing third-tier lenders’ being prosecuted personally. The report. However, some mobile trad- websites for compliance with their obligations under director of Twenty Fifty Club Ltd ers were also ultimately prosecuted the CCCFA and FTA. Whereas the Commission found was convicted under the Crimes under these new provisions. For 31 out of 32 mobile traders to be non-compliant with Act 1961 as a party to the lenders’ example, Best Buy Ltd was charged these obligations, by February 2016, compliance notices offending, which involved failing to with misleading customers into had been issued to only 15 of the 100 third-tier lender provide key information to debt- thinking it had a right to repossess websites that had been reviewed. The findings of the ors, charging unreasonable fees, goods when it did not. Commission’s investigation suggest that non-compliance and misrepresentation (Commerce Of note, Lender Responsibility with statutory provisions is not as widespread as mobile Commission v Twenty Fifty Club Ltd Principles were introduced that traders, particularly given the number of third-tier and Marsich [2016] NZDC 7242). require lenders to:

27 PROPERTY LAW · UPDATE August 2017 · LAWTALK 909

• Make reasonable enquiries to Providers (Registration and Dispute Commission has three options. It can give a warning, determine whether the credit will Resolution) Act 2008 and be a issue an infringement notice or commence prosecution. meet the borrower’s requirements member of a dispute resolution Mobile traders and third-tier lenders were initially given and objectives, and that the scheme, which must be disclosed a warning: compliance advice and an opportunity to borrower can make repayments to consumers. If a creditor wishes rectify their loan documents and behaviour. without suffering substantial to take security for a loan, the However, the Commission is unlikely to continue to hardship; items over which the security is show such leniency. The Commissioner alerted lenders • Assist the borrower to reach an taken must be specified in the loan to as much in a media release in May 2016: informed decision as to whether contract and cannot include essen- “Lenders had 12 months prior to the law changing or not to enter into the agreement tial items such as beds, cooking to get up to speed with the changes and to ensure and to be reasonably aware of the equipment and washing machines that their documents and processes complied with full implications of the agreement, (CCCFA, s 83ZN). the law. Detailed information on the changes has by ensuring that advertising is not The available fines were also been available to lenders and the Commission misleading, deceptive or confus- increased by 20 times by these ran a number of workshops to help lenders to ing, and the terms of the contract amendments, so that an individual understand what is required of them. There is no are clear; and can now be fined up to $200,000 excuse for non-compliance and the Commission • Treat the borrower and their and a company can be fined up to will take enforcement action against those that do property reasonably and in an $600,000 (CCCFA, s 103; Commerce not comply.” ethical manner. Commission v Betterlife Corp Ltd at Furthermore, the Commissioner’s powers to issue Failure to meet the Lender [70]). These are consistent with the infringement notices and require the payment of Responsibility Principles means penalties available for breaches of infringement fees is limited. Infringement notices can the court can make an order under sections 9 and 13 of the FTA, which only be issued in respect of non-disclosure of required section 94. The amendments to the have provided the basis for a signif- information, and the infringement fee is limited to CCCFA also allow the Minister of icant number of the prosecutions $2,000. There is no mechanism by which the Commission Commerce and Consumer Affairs to date. can impose fines or recover fees that the lender obtained to develop a Responsible Lender Most mobile traders and third- as a result of breaches of the CCCFA without a court Code to provide guidance to lend- tier lenders were prosecuted under order. ers on how to satisfy the Lender section 17 of the CCCFA, which The Commission is therefore likely to treat prosecution Responsibility Principles. requires initial disclosure of key of lenders who do not comply with their legal obligations Other amendments to the CCCFA information to borrowers such as as the best way to deter and protect vulnerable con- in 2015 follow the Supreme Court’s the initial balance, details of any sumers. Whether or not the lender has been previously decision in Sportzone Motorcycles fees to be charged, the number of identified as being non-compliant is unlikely to factor Ltd (in liquidation) v Commerce payments required, and the debtor’s heavily into the Commission’s decision to prosecute. Commission [2016] NZSC 53, provid- right to cancel the contract within For example, the Commission laid charges under the ing that a lender can only charge five working days. Failure to pro- CCCFA against Zee Shop, despite not recognising its fees that reflect the costs and losses vide adequate disclosure prevents non-compliance in the Commission’s 2014/2015 Report. associated with the particular activ- a lender from enforcing the contract The Commission’s educational efforts and warnings ity for which the fee is charged. or recovering any fees for any period given to other lenders could be regarded as sufficient Creditors must also be regis- that the lender failed to comply to treat any further non-compliance as serious enough tered under the Financial Service with its disclosure obligations to warrant prosecution. (FTA, s 40). If a lender is prosecuted It is also possible that there will be an increase in under section 17, a court can require the number of directors of lenders who are prosecuted. repayment of fees collected during In Commerce Commission v Betterlife Corp Ltd, the the period of non-compliance as Commission had interacted with the sole director and part of sentencing. For example, shareholder of Betterlife when he was involved with the Court ordered repayment of another mobile trader. The Commission’s 2014/2015 fees in Commerce Commission v Ace Report notes that there are low barriers to entry of the Marketing Ltd. mobile trading industry, meaning participants can enter When non- A court can also order that fees be and exit the market fairly rapidly. The deterrent effect of compliance with refunded or are not required to be financial penalties is undermined in these circumstances. the CCCFA or FTA paid where lenders have breached If the situation allows it, the Commission may view the is identified, the sections 39 and 40, which prohibit prosecution of directors as more effective, particularly Commission has the charging of unreasonable fees given the successful prosecution of the directors of Flexi three options. and limit the fees that can be Buy Ltd and Twenty Fifty Club Ltd. ▪ It can give a charged (FTA, s 40). warning, issue Hannah Musgrave  hannah.musgrave@bellgully. an infringement Observations about the com is a senior solicitor based in Bell Gully’s General notice or Commission’s approach Liltigation team in its Auckland office. She specialises commence When non-compliance with the in dispute resolution, regulatory prosecutions, civil prosecution. CCCFA or FTA is identified, the litigation and insurance.

28 UPDATE bill in 2005, but that was called off to await the 2011 Wai INTELLECTUAL PROPERTY 262 Report. Since then the delay has been attributed to negotiations over the Trans Pacific Partnership IP standards. Now, it seems, it is finally time for action. The UPOV 1978 exclusive rights are limited primarily Plants, Copyright to the reproduction for sale and the sale of reproductive material of a protected variety. In one example the rights are in a kiwifruit vine – but not the kiwifruit produced and Wine from that vine, even though the “distinctness” of the variety is in the fruit. UPOV 1991 rights include rights in several other activities in respect of reproductive This Month’s Degustation material and rights downstream in the value chain, ie, rights in harvested material and, optionally, products of harvested material. In addition, the rights for a protected BY DOUG Innovation and Enterprise (MBIE) variety extend to a variety essentially derived from a CALHOUN might also have a look at the short- protected variety. The new legislation could well do with comings of the existing law. some examples to allow readers new to PVRs to get their The UPOV convention sets out the heads around these concepts. Plant Variety Rights Act principles of sui generis legislation The Wai 262 Report has been out for six years – without Review – Not Before Time establishing rights for breeders in a response from the government. Trying to reconcile The least well-known of our IP new plant varieties. UPOV has gone the Wai 262 claims with PVR law is a round hole/square statutes, the Plant Variety Rights through three generations: in 1961, peg exercise. Act 1987, is now undergoing a full 1978 and 1991. New Zealand was an The Wai 262 report suggested three applicable review. Its two main objectives early member of UPOV 1961 with its principles: are to expand the bundle of rights Plant Varieties Act 1973. It was quick • The kaitiaki relationship with taonga species should protected to conform to UPOV 1991 off the mark in signing up to UPOV be respected, (the governing international treaty) 1978. However, the 1987 Act has still • The provisions put in place must protect that rela- and to address the recommenda- not been upgraded to UPOV 1991. tionship, and, tions made by the 2011 Wai 262 The delay has been largely due • The interests of IP holders, the public good in research (the flora and fauna claim) Report to uncertainty (since 1991) in the and development, knowledge itself and species is also of the Waitangi Tribunal. While they outcome of the Wai 262 inquiry. An important. are at it, the Ministry of Business, abortive attempt resulted in a draft Not surprisingly, negotiations between MBIE and iwi,

29 INTELLECTUAL PROPERTY · UPDATE August 2017 · LAWTALK 909

UPDATE RELATIONSHIP PROPERTY hapu and the wider Māori community are continuing. There are few, if any, procedural provisions in the 1987 Act and 1988 Regulations to guide parties or the commissioner in resolving disputes. The grounds upon Thinking which a third party can apply to revoke a PVR grant are not matched by the grounds upon which the commissioner can revoke a PVR grant. These examples suggest about the that the Act and Regulations could well stand a thorough coherency review while MBIE is on a roll. Although MBIE has outlined the next steps, they have children not indicated their timing. Copyright Act Review – At Last when Following on from their Copyright and the Creative Sector study (LawTalk 906, May 2017), MBIE has announced a sweeping review of the copyright regime. dividing The objectives of the review are to: • Provide incentives for the creation and dissemination of works, relationship • Provide reasonable access to works for use, adaption and consumption, • Ensure effectiveness and efficiency, clarity and -cer property tainty while maintaining integrity and respect for the law, and, • Meet New Zealand’s international obligations. BY HELEN TYREE Photo by Flickr user Cayusa CC-By-NC Flickr user Cayusa by Photo

A mix of lofty aspirational goals, but they had to start AND MCKENZIE COX  somewhere – and these objectives are not set in stone. The creative sector study may assist MBIE in deter- mining what incentivises creators and disseminators. A recent LawTalk article by Kimberley Lawrence But will copyright rules be able to balance the power and Greg Kelly (“Joining adult children to their parents’ relationships between those who create works and those relationship property proceedings as trust beneficiaries, who disseminate them? LawTalk 906, May 2017, page 28) discussed adding adult The reasonable access objective will bring into focus children into their parent’s relationship property pro- whether New Zealand should maintain its fair dealing ceedings. But what about when the children are minors? provisions or move to American-style fair use. Should we be thinking about them too? The Australian Productivity Commission’s recent crit- Section 26 of the Property (Relationships) Act 1976 ical review of Australia’s IP laws came down in favour (“the Act”) provides for the court to consider children of fair use in Australia, but the Australian government when settling relationship property. has yet to respond to that report. The section has two purposes: The first is to impose The third objective is the mandatory motherhood a duty on the court to have regard to the interests of affirmation. any minor or dependent children of the relationship That particular objective begs the question: which when making orders under the Act. This duty applies international obligations? Does New Zealand retain the to any proceedings under the Act, and so has relevance sweeping changes made in 2016 to comply with the both to the sections where the interests of children are TPP standards? explicitly mentioned such as the making of occupation The next step in the review will be an issues paper orders under section 27 and an award of compensation in early 2018. under s 15 and s 44C, and also to applications where no mention is made of children. For example, s 26 has been A pinot noir toast to the GI Act debut relevant to the court’s discretion under s 2G to depart After a long and convoluted fermentation (LawTalk 903, from hearing date valuation. February 2017) the Geographical Indications (Wine and The second purpose is to give the court the power to Spirits) Registration Act 2006 came into force on 27 July. ▪ settle relationship property for the benefit of the children of the relationship. The word ‘child’ is defined very broadly. Doug Calhoun [email protected] is a The court’s approach tos 26 is set out best in the old member of the NZLS Intellectual Property Law case R v R [1998] NZFLR 611 as follows: Committee. He is a former partner of AJ Park, where 1 Prima facie the property is to be regarded as the he worked from 1974 to 2006. property of the parties.

30 UPDATE RELATIONSHIP PROPERTY

2 In every case where there are minor or dependent father wanted to retain the funds would be a misuse of the section for children, the court is obliged to have regard to the for care of the children if the mother it to be used as a tool for succession respective interests of each such child. died while the children were still planning, but it may be relevant to 3 The context of consideration of the welfare and best dependent. The respondent argued proceedings commenced under Part interests of the child is in the light of the property that she would need the funds to 8 of the Act after the death of the division between husband and wife to ensure their care for the children if she became spouse or partner. financial protection during minority or dependency. sick again. In light of the mutual Section 26 is also very unlikely 4 The court is not precluded from considering the inter- purpose of using the funds to care to lead to the making of an order ests of adult children and may have jurisdiction under for the children, the court created that totally displaces the spouse’s s 26 to settle property for the benefit of an adult child. two trusts, vesting half of the policy or partner’s interests. In WMM v 5 It would be the exceptional case where the consider- value in each. The overall effect was SJM [2012] NZFC 5019, the child in ation leads to an actual award for a child. that the proceeds of the policy were question had physical disabilities, 6 It would be wrong in principle to use s 26 to anticipate retained by both parents for the but there was no order made under succession. benefit of the children. s 26(2) because the relationship 7 Default or inability of a parent to provide appropriate There is conflicting case law about property pool was modest, and maintenance, upbringing, shelter, or nurture for a whether the power can be exercised “there [was] simply insufficient to child, are relevant factors whether or not the default in favour of adult independent chil- apply funds to [the child]”. is wilful. dren. Adams, Re Roberts [1994] 1 NZLR Section 26 is not commonly used 8 Generally a s 26 order should not be used to substitute 200 (HC) and Lockie v Lockie (1993) in proceedings under the Act to settle or supplement child support arrangements. 11 FRNZ 81 are cases in which it was property on children, but should not 9 Section 26 is not a backhanded means of pro- held that s 26 orders can be made be forgotten. It also has potential to viding damages to a child for ordinary parenting for adult independent children. be useful for alternative and creative shortcomings. However, more recently, the court in settlement solutions for parties who 10 An award under s 26 must be reasonable in all of Babylon v Babylon (2009) 27 FRNZ 622 cannot otherwise reach agreement. ▪ the circumstances. (HC) concluded that s 26 could only A recent example of s 26’s application is Hader v Hader be used to make orders for minor Helen Tyree  [email protected] [2015] NZFC 4376. The respondent was a recovering or adult dependent children, that is an associate and McKenzie Cox cancer patient whose life expectancy had decreased interpretation being consistent with  [email protected] is a solic- as a result of her illness. She had a life insurance policy the purposes of the Act in sections itor at the specialist Wellington that was held in the applicant’s name. The applicant 1C and 1M. It is considered that it family law firm McWilliam Rennie.

31 RURAL FIRES · UPDATE August 2017 · LAWTALK 909

UPDATE RURAL FIRES New Act has changed the liability landscape for rural fires

BY VERONICA CRESS • fines of up to $300,000 for an to 159 are positioned in the FENZ Act individual and $600,000 in any under the heading “other offences”. other case. These offences are more serious than Section 43 of the Forest and Rural Fires Act 1977 Sections 60 and 61 contain offences infringement offences but less serious (1977 Act) was a useful provision for recovering fire losses that fall within the serious cate- than offences involving risky behav- from the person responsible for causing a rural fire. gory and most closely resemble iour with fire. All offences in this Compensatory damages could be sought for firefighting the repealed s 43 of the 1977 Act. category are punishable by impris- costs, property damage and any other losses that were These offences are “knowingly or onment and/or fines. Other offences not too remote. It was not necessary to prove intention, recklessly”: at similar levels of criminality and negligence, or lack of care. The person responsible was • causing or allowing a fire to get with comparable penalties are also strictly liable once the cause of a fire had been agreed out of control and spread (s 60); scattered through the Act. or established by civil action. and On 1 July 2017 the Fire and Emergency New Zealand • leaving a burning or smouldering New offence of causing Act 2017 (FENZ Act) repealed the 1977 Act and effectively substance in open air without a fire to get out of replaced s 43 with a new offence and penalty regime that taking the prescribed precautions control or spread includes serious criminal offences punishable by up to (s 61). Section 60 of the FENZ Act intro- two years imprisonment. The stated purpose of the new Sections 53 to 58 (inclusive) also duces a new criminal offence for regime in s 3(d) is “to improve fire safety.” As stated in create criminal offences falling “knowingly or recklessly” causing the Department of Internal AffairsReport to Government within the most serious category. or allowing a fire to get out of Administration Committee on Fire and Emergency New These are all offences for “knowingly control and spread to vegetation Zealand Bill 2016 (October 2016 at [9.79]), the rationale or recklessly” lighting fires in the or property. is that serious criminal penalties ought to deter risky open air in breach of the various fire This section will apply to some of fire behaviour. prohibitions and restrictions that the same fire incidents that would It remains to be seen whether this public policy shift Fire and Emergency New Zealand previously have been caught by s 43 away from civil cost recovery and towards criminalising is authorised to impose under the of the 1977 Act but with some major risky fire behaviour will achieve the stated objectives. FENZ Act. These can relate to fire differences: In the meantime, the liability landscape has changed seasons, geographical areas, and • Section 60 does not apply if FENZ significantly for those who cause rural fires that get out activities. is notified “…as soon as practica- of control and those who suffer loss as a result of them. ble after discovering the fire”. Infringement offences • The fire must now spread to veg- The new offence and penalty regime Infringement offences will be cre- etation or property. Previously, The FENZ Act has introduced a comprehensive offence ated for breaches of the FENZ Act s 43 had applied if property was and penalty regime. The offences in the Act broadly fall or regulations. The detail is yet to “safeguarded from a threat of within three categories: be provided by regulation, with outbreak of fire”. • serious criminal offences (for intentionally risky just one offence (failure to provide • Proof is now required of the mental behaviour with fire that increases the likelihood of information or evidence (s 154(4)) element of “knowingly or reck- fire spread and harm to others); under the “Infringement Offence” lessly” causing or allowing a fire • infringement offences (for contravening the FENZ Act heading in the Act. However, the to get out of control and spread. or regulations); and penalties for infringement offences • The maximum penalty for the • other offences (for intentional conduct more serious will be payment of either: (a) an offence is a period of imprison- than infringement offences but not falling within the infringement fee, or (b) a fine if ment and/or fine. There is now no most serious category). proceedings are commenced in the statutory provision for seeking an District Court under section 14 of the award of compensatory damages. Serious criminal offences Criminal Procedure Act 2011. • As with all criminal offences, The maximum penalties for the most serious criminal every element of the offence must offences in the FENZ Act are: Other offences be proved to the criminal standard • imprisonment for up to two years, and/or The offences contained in sections 156 of beyond reasonable doubt.

32 vegetation) is covered. event that foreseeably causes or threatens, continuing Expanded offence of • The maximum penalties for the or recurring, unreasonable interference with the use leaving a burning or offence have increased signifi- or enjoyment of other land). smouldering substance cantly. For periods of imprison- • Possibly, the rule in Rylands v Fletcher (1868) LR 3 HL It is also an offence under s 61 of ment the increase is from 2 months 330 (requiring a foreseeable escape of a potentially the FENZ Act to leave a burning or to 2 years, and for fines the increase harmful substance). Although there is debate about smouldering substance in the open is from $7,500 to $600,000. whether this is technically a separate cause of action, air without taking precautions. it is frequently pleaded as one in this context. Leaving a burning or smouldering Common law causes In every case, proof of reasonable foreseeability is substance “in a way that increases of action remain required in addition to the other necessary elements the likelihood of harm or damage Now that s 43 of the 1977 Act has of the cause of action. As a result, successful recovery from the start or spread of fire” is an been repealed, those who suffer loss of rural fire losses under the common law will require offence if the accused ”knowingly as a result of rural fires will only be more of a plaintiff than simply proving the cause of a or recklessly” fails to: able to recover compensatory dam- fire, as was previously the case under the now repealed • take reasonable steps to reduce ages if they can establish a cause s 43 of the 1977 Act. the likelihood of harm or damage of action under the common law. as soon as practicable; and Section 43 had expressly stated that Conclusion • notify FENZ as soon as practicable other rights of recovery were not The FENZ Act has significantly changed the liability land- after taking those steps. affected by the section. The FENZ scape for those that cause uncontrolled rural fires and This offence is an expanded version Act is silent on the point. Without those who suffer loss as a result of them. In summary: of the offence previously contained an express provision to the contrary, • Those who cause rural fires are no longer strictly liable in s 26 of the 1977 Act. The key common law causes of action will to pay compensatory damages for the losses they changes are: continue to be available alongside inflict on others but now face the threat of criminal • The mental element of the offence the FENZ Act. liability, possible imprisonment and hefty fines that has changed from “wilfully or The three causes of action that are are payable directly to the Crown. negligently” leaving a substance often pleaded in this context were • Those who suffer loss as a result of rural fire will to “knowingly or recklessly” fail- recently discussed by Thomas J in need to establish a common law cause of action to ing to take precautions. Double J Smallwoods Ltd v Gisborne recover compensatory damages and much more • The danger at which the offence District Council [2017] NZHC 1284 will be required for successful recovery than simply is directed has expanded from from [96]. In very simple terms, proving the cause of a fire .▪ “creating a fire hazard in vegeta- they are: tion” to “increasing the likelihood • Negligence (requiring knowledge Veronica Cress  [email protected] is of harm or damage from fire”. of a hazard that could cause fore- an Auckland barrister. A former insurance litigation The words “harm or damage” seeable harm and a failure to take partner in the New Zealand operation of DLA Piper, indicating that danger to both reasonable precautions against it). Veronica specialises in civil litigation, insurance law, people and property (including • Nuisance (requiring an act or civil liability, and professional risks.

33 UPDATE SOCIAL ENTERPRISES What is a Social Enterprise?

BY STEVEN MOE

different meanings for different ccednet-rcdec.ca). It gives a slightly different angle with The Social Enterprise World people, depending on the back- more of an emphasis on the non-profit nature: “The term Forum will be held in Christchurch ground and experience of the person ‘social enterprise’ is used to refer to business ventures this September. More than half hearing it for the first time. As one operated by non-profits, whether they are societies, of the 1200 available tickets are objective reference point outside of charities, or co-operatives. These businesses sell goods already taken, with involvement New Zealand, it is useful to see how or provide services in the market for the purpose of by participants from dozens of the European Social Enterprise Law creating a blended return on investment, both financial countries. In a relatively new sector Association defines it in their paper, and social. Their profits are returned to the business or like social enterprise there are often “Developing legal systems which to a social purpose, rather than maximising profits to assumptions about what is actually support social enterprise growth”. shareholders.” being talked about. For example, They see three key elements: It goes on to say: “Others use a broader definition what exactly does the term ‘social • Entrepreneurial dimension: that includes privately owned ventures that have a very enterprise’ really mean in a New engagement in continuous eco- strong blended financial and socially responsible return Zealand context? Is it another term nomic activity; on investment.” for a charity that makes money with • Social dimension: primary and an op shop or is there something explicitly social purpose; and How about in New Zealand? more to it? • Governance dimension: mecha- Ākina Foundation (www.akina.org.nz) has been working In seeking to understand and ana- nisms to ensure priority of social for years to promote social enterprise in New Zealand. lyse this there are a lot of concepts purpose. The definition put forward on their website seems to and ideas that will be thrown on The association concludes that a focus more on a distinction between an entity which to the table in this article – some of good definition is: “an autonomous is ‘for profit’ and one which is ‘for purpose’. This is them contradictory. However, it is organisation that combines a social summarised down to: “Social enterprises are pur- hoped that by doing this there will purpose with entrepreneurial activ- pose-driven organisations that trade to deliver social be a clearer understanding about the ity”. It is interesting in this definition and environmental impact”. Ākina doesn’t comment issues involved in understanding that there is no mention of the on whether the organization is a not-for-profit or not, and defining ‘social enterprise’ in organisation being exclusively not which would be an assessment of structure. Instead it a New Zealand context, and that for profit or for profit. focuses on the ‘purpose-driven’ aspect and the main will foster better discussion and Canada has many similarities to intention for the entity. understanding. New Zealand, so it is good to look at some of the thinking going on there. Is there a spectrum of ‘goodness’? How is the term The Canadian Community Economic All these definitions are helpful but, focusing on the used overseas? Development Network includes a point of difference, it seems to come down to some The term ‘social enterprise’ has description on its website (https:// part of the entity being involved in an aspect that is

34 more than just the traditional goal of making a profit surely has immense positive value. verified social and environmental for shareholders. So the challenging point is, perhaps, performance, public transparency, But there is clearly a spectrum ranging from ‘self to take these lenses off and not to and legal accountability, and aspire focused’ to ‘other focused’ and it is worth asking at think in these sorts of terms at all. to use the power of markets to solve what point an organisation crosses over and can be given Instead, can we work out how to social and environmental problems”. the label of a social enterprise. For example, is there a encourage all organisations to begin In New Zealand there are around a certain percentage of ‘good’ that they need to be involved to take on board some of the con- dozen companies who have taken the in – and how is that defined? How do you reconcile this cepts underlying social enterprise step to become B Corp certified and it focus on a ‘purpose’ with the fact that simply providing motivations. Even a ‘for profit’ will be interesting to see if it takes off. employment for people is very important as that helps company could switch its sourcing individuals provide for their families and communities of products and services in order A way forward to thrive. Where are the cut-off points? to help some social enterprises When you first became involved in Turning to that idea of a spectrum on which different become economically viable. How this sector the terms and concepts legal forms of entity sit, it can perhaps be described like do you increase engagement with can be confusing, so this article this – with some overly broad characterisations thrown such companies, so it is not just has explained some of the things in to make the point: left to ‘social enterprises’ to be the to consider regarding what a ‘social ones who are seen to have some enterprise’ actually is. The great part Really ‘good’ – Not for profit responsibility in this area? is that this is a growing and evolving These are usually traditional charities and do not exist to area so it is actually possible to be create a profit but instead help disadvantaged or others. How does B Corp part of the debate and even shape status fit into this? what happens next in New Zealand ‘Good’ – Social enterprises One example of a label which some and globally. In a New Zealand These have community purposes at their heart but companies are applying for to show context it will be important to look operate as businesses and do make profits that support where they fit on the spectrum are ‘B at all the different definitions and their purpose. Corporations’. It is worth describing discussions overseas and use these them in some detail as it is another as a basis for constructive dialogue Pretty ‘good’ – Businesses which donate dimension to consider. The B stands about defining and enabling more These are companies which focus on profits but do set for ‘benefit’ and it involves a certifi- Social Enterprise in Aotearoa. aside a proportion of their profits for some community cation system for companies which Next month we will turn from purpose as well. meet certain criteria that show this discussion of what a social they have a focus on more than just enterprise is and look at whether Not as ‘good’ – Profit-focused companies profits. B Corporations are certified the legal framework in New Zealand These have no charitable or community purpose (except by B Lab which is a not for profit that exists is enough to support perhaps a token gift to disaster relief from time to time). organisation. In some states in the their development or if a new legal United States there are dedicated structure would help. ▪ Is such an analysis really fair? It seems to overly weight Benefit Corporation legal structures the ‘goodness’ of some organisations over others. There that take the certification further. Steven Moe  stevenmoe@ is a danger of going too far either way. Obviously, the Probably the most famous example parryfield.com is a senior asso- above is a really crude analysis, but it has been done of a company which has become a B ciate at Parry Field Lawyers in through certain lenses. Corporate is Ben & Jerry’s ice cream. Christchurch. He recently returned As mentioned above, the fact that an organisation The B Corporation website says: “B to New Zealand after 11 years over- offers employment to staff and contributes some product Corps meet the highest standards of seas in London, Tokyo and Sydney.

35 RULE OF LAW · UPDATE August 2017 · LAWTALK 909

UPDATE RULE OF LAW The WJP Rule of Law Index Interpreting its results

so results do not purport to provide The World Justice Project (WJP) produces an annual Rule insights into even perceived cause of Law Index. The Index brings together information from and effect. As WJP states, the Index “does not identify priorities a wide range of sources. The 2016 Index covered 113 for reform and is not intended to countries and jurisdictions and provides an authoritative establish causation or to ascertain analysis of how the rule of law is faring in each. While the complex relationship among different rule of law dimensions in New Zealand is always well placed, there has been some various countries”. discussion of what it means when we are overtaken in Secondly, being dependent upon the rankings. The New Zealand Law Society’s Rule of subjective responses to questionnaires, sample size and statistical Law Committee looks at how the Index works and what methods (such as the “z-score” can be concluded in relation to New Zealand. method) are important in terms of mitigating the impact of skewing, outlier responses. WJP claims to use local polling companies to obtain a representative sample of 1,000 Compared to respondents and to identify, on The Rule of Law Index provides scores and rank- 2015, our scores average, more than 300 local experts ings based on eight factors: constraints on government are now down per country. Spread across the eight powers; absence of corruption; open government; for the factors factors, this translates to only 37 or fundamental rights; order and security; regulatory of “fundamental 38 experts per factor. enforcement; civil justice; and criminal justice. Each rights”, “order Thirdly, as expected of a world- of these is assessed by reference to 44 sub-factors, scores and security” wide survey the questionnaires for which are also published. and “criminal appear designed to assess rule of law The methodology giving rise to these indexed results justice” but up maturity in both undeveloped and turns upon responses to questionnaires specific to each for “constraints developed contexts. To understand factor. These are completed by general members of the on government why one country is scoring highly public and “experts”, namely in-country practitioners powers” and another poorly, it is helpful to and academics with expertise in civil and commercial and “open understand the sort of universal law, criminal justice, labour law and public health. So government” metrics that the questionnaires they reflect lay and informed perceptions and experi- and unchanged target. ences that, WJP says, are equally weighted “in most for “absence Respondents are generally given cases”. of corruption”, a hypothetical scenario and either “regulatory asked to rate the likelihood of a Limitations to methodology enforcement” certain consequence of that scenario As WJP acknowledges, there are inherent limitations to and “civil on a scale of “very likely” to “very the methodology underpinning the Index that should justice”. unlikely” or to identify the most condition the interpretation of its results. likely of a number of given conse- First, the Index does not purport to offer policy quences. For example, to cater for insights of a kind offered through other international the undeveloped end of the criminal evaluation mechanisms, such as “mutual evaluation justice spectrum expert respondents reports” undertaken by the Financial Action Taskforce are asked about the likelihood of a (in the money laundering / counter terorrist financing detained suspect being tried and context) or by the OECD Working Group on Bribery (in convicted in a secret trial or of an the anti-corruption context). Rather, the Index provides arrested drug cartel member being a snapshot of a country’s preceived performance. The severely physically harmed during questionnaires do not explore underlying dynamics, police interrogation or killed by

36 LAWTALK 909 · August 2017

police before trial. Not all questions so bluntly target the potential for such outcomes but all questions do permit responses reflective of a very low level of rule of law maturity. Comparing scores Given that questionnaires target different factors, it is probably too much of a stretch to use compari- sons between scores across factors as a means of indicating of where a country’s limited resources should be deployed. Is a bruised apple worse than a slightly dented orange? For these sorts of reasons, WJP emphasises that “the Index is generally intended to be used in combination with other instruments, both quantitative and qualitative. Just as in the areas of health or economics, no single index conveys a full picture of a country’s situation”. All that said, a particular country’s improvement or decline can be gauged by comparing its results from year to year. Although questions do change (to some extent) from year to year, WJP states it has “normalised” the 2016 results to a 2015 base year. For the past few years, WJP has also used a “boot- • the factor “criminal justice” of steady improvement. strapping” procedure to illustrate dropped from 0.79 in 2013 to 0.72 Doubtless, New Zealand’s lack of corruption is a signif- whether changes in factor scores in 2014; and icant driver of our high performance and on that front, are statistically significant at the • the factor “constraints on according to Transparency International’s Corruption 95% level of confidence. Government power” dropped Perceptions Index, we are the best in the world (along That additional analysis is telling from 0.88 in 2014 to 0.85 in 2015. with Denmark) with a score of 90 out of 100. We have for practitioners, academics and These changes were not indicative jostled for that number one spot with Denmark and policy-makers – particularly here of any trending decline. “Criminal Finland since that index was first published in 1995. in New Zealand. justice” climbed to 0.77 in 2015 and At least since 2013 our “absence of corruption” scores currently sits at 0.75, still well up on the Rule of Law Index have all been in the range of Comparing New from the 2014 drop. “Constraints on 0.9 – 0.92. Zealand’s 2016 and Government power” is also now up, In terms of rule of law, this means more than a good 2015 scores sitting at 0.86. score on one factor. As Transparency International Compared to 2015, our scores New Zealand’s “overall score” is New Zealand notes, top performers on the Corruption are now down for the factors of currently 0.83. If you presumed that Perceptions Index share key characteristics: “high levels “fundamental rights”, “order and this is a good score, you’d be right. of press freedom; access to budget information so the security” and “criminal justice” but The highest possible score is 1.00. public knows where money comes from and how it is up for “constraints on government A score of 0.83 places us first in the spent; high levels of integrity among people in power; powers” and “open government” WJP’s “East Asia and Pacific Region” and judiciaries that don’t differentiate between rich and and unchanged for “absence of cor- and eighth of 113 countries world- poor, and that are truly independent from other parts ruption”, “regulatory enforcement” wide. This (arguably) represents a of government.” These characteristics clearly avail any and “civil justice”. Further compar- drop from 2015, when we were sixth country’s performance in terms of adherence to the ison going back to 2013 indicates out of 102 countries, but it has to be rule of law. ▪ that scores across all factors bob asked whether the challenge is to up and down from year to year but maintain or improve our own scores The NZLS Rule of Law Committee consists of Austin within very small margins. The only or to be the best in the world at all Forbes QC (convenor), Gregor Allan, Isaac Hikaka, statistically significant changes in cost. It can be said, though, that Professor Philip Joseph, Sir Geoffrey Palmer QC and that period have been as follows: our scores are not demonstrative James Wilding.

37 August 2017 · LAWTALK 909

◂ Nuclei (green), and neuronal marker Tuj1 (red) of a mouse motor neuron, differentiated from an embryonic stem cell engineered with CRISPR/Cas9.

and harm a population that is highly valued in its native environment. New techniques like “CRISPR” (that delivers a gene drive) have made it faster, easier and cheaper to modify genes, but they have also opened up new risks and issues. Among these are: how would removing a particular species impact on the overall ecosystem, what “off-target” effects could result, and how would New Zealand respond to unexpected and unintended impacts? Debates on managing the revo- UPDATE lutionary new gene drive technol- BIOTECHNOLOGY ogy are taking place around the world as scientists and regulators become aware of its potential, and its risks. Last year the US National Species-altering Academy of Sciences, Engineering and Medicine endorsed continued research on the technology technologies need through carefully controlled field trials, noting there was insufficient knowledge of the unintended con- law fit for purpose sequences of gene drive to justify release into the wider environment. There is considerable research BY LYNDA into gene drive underway in New HAGEN arrangements needed to manage it. Zealand currently, including a Royal “The researchers are clear that developing a gene drive Society review of gene editing, but for mammals will take at least a decade, and even then this is not focused on what govern- The Government’s Predator Free it may not work. ance may be required to meet New 2050 strategy is sometimes touted “Current techniques like traps and poisons are going Zealand’s interests around gene as depending on the feasibility of through a revolution equally as impressive as advances drive and related techniques. “gene drive” biotechnology, which in biological science. There have been exponential gains “This project will assess the ade- allows an infertility gene to be from extending such existing approaches, and conser- quacy of the governance arrange- introduced to a pest species with vation experts recognise these will have to do the heavy ments in place. It is important to the aim of wiping it out. lifting – with or without gene drive,” he says. know where the gaps are before But Law Foundation-backed However, conservation is just one area where the proposed uses of the technology arrive researchers believe there are many new biotechnology applications could impact and the on our doorstep” Simon Terry says. questions about how potential uses study is not focused on any sector or application. The Potential beneficiaries of the of the technology would be regulated. researchers are looking at the bigger question of whether project include agricultural pro- The Sustainability Council of New the law as it stands is fit for managing all the potential ducers, lawmakers, government Zealand is starting a six-month project challenges coming forward. departments, conservation groups, examining the legal and regulatory “For example, twenty years ago, regulation was the scientific community as well as requirements for managing some of developed on the understanding that these technol- the wider public. ▪ the new biotechnology applications, ogies would be contained in a laboratory, a field, or at with a focus on gene drive. least within national boundaries. But the gene drive Lynda Hagen  lynda@lawfound The Council’s executive director technology relies for its effectiveness on its spread,” ation.org.nz is Executive Director Simon Terry says that the promotion Mr Terry says. of the New Zealand Law Founda- of gene drive as a tool for conser- An article in Nature reports that if possums were tion. For more information on Law vation has got well ahead of its targeted in New Zealand as a pest, there is a risk that Foundation-funded projects, visit current capacity to deliver and the such GM possums could somehow end up in Australia  www.lawfoundation.org.nz.

38 LAWTALK 909 · August 2017 MEDIATION

MEDIATION Better Conversations Part 2: How to have difficult conversations

BY PAUL SILLS

blamed them in the first place. So the conversation goes If the parties We live in a blame culture. around in circles, and nowhere useful. are subjectively When things go wrong we protect If the parties are subjectively engaged in a dispute engaged in a our identity (our egos) by finding their chances of having a balanced and considered con- dispute their somebody, or something, to blame. versation are significantly reduced. They stop engaging chances of having This allows us to ignore our own role, with the relevant subject matter in a calm and balanced a balanced and and to avoid considering whether way, and instead focus on what they perceive to be considered we might be (at least) partly respon- an attack on their views, their identity and themselves conversation sible for difficult positions we find personally. When the parties are in that space then the are significantly ourselves in. problem becomes a hostile dispute between the person- reduced. It suits our egos to make somebody alities involved, with the pertinent issues of the dispute else pay for what has gone wrong. taking a backseat. An already difficult conversation is This leads to a lot of finger-pointing made worse by self-righteousness, subjective perception and self-righteous behaviour, but of ‘the facts’ and a desire not to be blamed for what not a lot of meaningful dialogue or has occurred. analysis as to what exactly occurred. This is not the backdrop for a great conversation, but The identity conversation When we then try to ‘engage’ with it is the typical backdrop for a mediation. How do the Conflict shakes our sense of identity the other party we find that our parties work their way through the mess they have cre- to the core, causing us to question blame game and self-righteousness ated? In their book Difficult Conversations: How to Discuss our competence and worth. When prevents us from having a good What Matters Most (Douglas Stone, Bruce Patton and in conflict we need to explore which conversation. Why is this? Sheila Heen, Penguin, 2010) the authors explain that of our hot (subjective) buttons are Typically we listen and respond every difficult conversation is made up of three separate being pressed. Fear of rejection or autobiographically. That is, we don’t conversations: what happened, feelings and identity. a sense of inadequacy (yes – even actually “hear” the other party. in commercial disputes) are both Instead we make assumptions The What Happened conversation examples. The parties need to look and judgements about what the Arguing about who is to blame prevents the parties from beyond black-and-white identities other party says and does that are finding out what actually happened. Instead, the parties and to consider the impact con- coloured by our own experiences, need to be curious and ask open questions and engage flict has on self-image (both the conditioning, subjective view of with each other in order to learn what the other party’s self-image of the parties in conflict the dispute and our desire to blame intentions were. Once you know that, you can share and the self-image of the individual others. We also respond autobio- your own version of the story. Instead of choosing which egos involved). The parties need to graphically, based on our view of story is right and which is wrong (because most disputes understand that everyone makes the world. Since the life experiences are not right/wrong) the parties should be encouraged mistakes, and acknowledge their of the parties are different, they to embrace both stories and to understand where any own contributions to the problem. are unlikely to agree. That is hardly miscommunication or misunderstanding has come from. That will allow the relationship to surprising – the parties have not strengthen. ▪ heard each other, but have simply The feelings conversation reacted to the message that they While we would all love to ignore the underlying Paul Sills  paul.sills@paulsills. subjectively extracted from what emotions in a dispute and focus exclusively on objec- co.nz is an Auckland barrister the other party did and said. tively solving problems, that is not realistic. When left specialising in commercial and We talk past each other or at each unaddressed, negative emotions deepen the conflict by civil litigation. He is also an experi- other, and then feel angry because blocking our ability to listen. Instead, parties that are enced mediator. This is the second the other side has not listened or trying to have a better conversation need to acknowledge of three articles on how to have understood us. This feeds back into the range of complex feelings the parties have so as to better conversations – at the heart our egoic justification for having best promote mutual understanding. of good dispute resolution.

39 SUCCESSION · COVER STORY August 2017 · LAWTALK 909

How I survived the death of my business partner

BY CLAUDIA KING

Claudia King is well known for her thinking and initiatives on the delivery of legal services online. The CEO and co-founder of Automio, she was until recently a director of Dennis King Law. Recently she wrote a blog post on the Automio website about the death of her father and business partner, innovative Taranaki lawyer Dennis King, and the impact it had on her and their legal practice. The issues around succession in New Zealand’s legal profession are relatively little explored but increasingly important, and LawTalk is very pleased to be able to share Claudia’s thoughts.

40 LAWTALK 909 · August 2017 COVER STORY · SUCCESSION

◂ Claudia and Dennis King at the 2014 Plain English awards

hen people would ask my business partner and father, Dennis King, what Whis succession plan was, he’d jokingly reply with a one word answer: “Claudia”. Dad and I used to think we had the succession planning stuff pretty well sorted. If something happened to me then Dad could run our business. If something happened to Dad then I could run the firm. We had a signed shareholders’ agreement, we both knew how to run the business, and we were both qualified trust account supervisors.

Last year Dad died.

It turns out we weren’t as prepared as we thought we were.

The art of getting shit done The denial stage

Dad and I worked together for 8 years and were As Dad was a very private person, when he was in business together for 6 of them. Dad and I diagnosed he decided he didn’t want anyone to were the two directors of Dennis King Law, a know about it. We respected this and didn’t tell New Plymouth law firm with a team of 15 people. anyone except a few close family members and When I started working with Dad I’d had a couple friends. I think Dad went into denial about the fact of years’ experience working as a tax advisor for that he’d die soon. So did I. In fact, it was like we KPMG so Dad pretty much had to train me from almost forgot that Dad was terminally ill. Which scratch as a commercial lawyer. Dad taught me sounds ridiculous but that’s what happened. to be organised, meticulous, efficient and hard- Because Dad and I were in denial, we failed to working. Basically he taught me how to get shit plan for how our firm would survive without him. done, which is a skill I’ve come to realise a lot of There were times when I tried to talk to him people struggle with. about things, but he wasn’t keen and I didn’t push Dad got sick in December 2015 and died 3 it. We didn’t talk about who would look after his months later on 16 March 2016. Dad got sick really demanding litigation practice, or how we’d replace fast, one week he felt fine and the next week he all the fee revenue Dad earned for the firm. Looking couldn’t work at all and never came back to work back we should have used this time to bring in again. Dad was actually diagnosed with terminal an experienced lawyer to replace him. In fact, we cancer in September 2014 and was given 12 months were so badly in denial that towards the end of to live. He showed no signs of being sick for about 2015 we bought new premises that we planned to 15 months. renovate and move into in mid-2016. Interesting decision you might say.

41 SUCCESSION · COVER STORY August 2017 · LAWTALK 909

massive backlog of work. Looking • I had a client who wanted some The financial back I can’t believe I put myself and work completed on the day Dad my unborn baby at risk like that. But died. I asked the client for an stress I was so stressed I didn’t think I had extension, to which he responded a choice. “I’m sorry your Dad died, but that’s I knew before Dad died that our firm I wasn’t prepared for some of the not my problem”. Yep, seriously. would get no financial relief from bad stuff that would happen after I experienced a number of situ- our insurer because we didn’t have Dad died. You expect that everyone ations where clients and othwer keyman insurance in place for him. will wrap you up in cotton wool and lawyers were unfairly inflexible Dad had an earlier brush with cancer be nice to you. While most people and unforgiving in the few weeks just after I started working with him were kind, here’s some of the bad after Dad died. in 2008. At this time Dad had an eye stuff that happened: • Some clients tried to take advan- removed due to eye melanoma, and tage of our situation and used this meant we couldn’t get keyman Dad’s death as an excuse not to insurance for him. When Dad died I was pay their bills. We’ve had to use The stress I encountered when Dad a variety of dispute resolution got sick was intense. I was so flat out 6 months pregnant. So methods to sort these out. with client work and stressed about I couldn’t even drink • Our staff were understandably the firm’s finances that I forgot to tell upset and productivity dropped most people I was pregnant until I wine. Even though I was for some time. This was hard was well over 20 weeks. I was in a a crazy, tired pregnant on cashflow. So I had to work constant state of overwhelm. harder to try and make up for this When Dad died I was 6 months woman, I had no choice shortfall. pregnant. So I couldn’t even drink but to suck it up and • Speaking of cashflow, another wine. Even though I was a crazy, thing that’s hard on cashflow tired pregnant woman, I had no put in the hours to get is your firm’s biggest fee earner choice but to suck it up and put in my firm and my team not generating fees anymore. the hours to get my firm and my Cashflow became a big issue for team through this dark time. It took through this dark time. a while there and our overdraft enormous hours to get through the took a hammering. Again, I had no ▾ Claudia King choice but to work like a cray-cray lady to bill enough fees to get us through. I was determined to keep the firm going without reducing staff numbers. • Dad had a couple of Law Society cost complaints from years ago that had been tied up in the LCRO process for a couple of years. No sympathy is given to your situation when the person who has knowledge of the matter is dead, and I had to spend many hours reading old files to get up to speed in order to provide responses and information. • Taking leave was almost impossible. I couldn’t take time off to have my baby, and was signing solicitor’s certificates and undertakings from my hospital bed. • Just after Dad’s death we had to move to our new premises. I should have been stoked about it but I wasn’t. I was overwhelmed by the grief I felt about moving out of our old offices where Dad and I had run our law firm together – it felt like I was leaving him behind.

42 LAWTALK 909 · August 2017 COVER STORY · SUCCESSION

It seemed so unfair that he didn’t negotiating for 2 years and it’s Dad was a very get to be part of it. never been signed. strategic lawyer It could have been worse though – • Have a meeting with your business I’ve shared war stories with a firm partners, your spouse/partner and and I loved whose deceased partner was the all the spouses/partners of your watching his trust account supervisor so within business partners, so everyone a couple of weeks of his death understands the process if one of tactical moves. another partner had to quickly do your business partners dies. One of his best the 50 hours study required for the • Your firm or business needs trust account supervisor course and keyman insurance on all the part- tactics was attend the course so the firm’s trust ners/directors. Sole practitioners pretending to be account wasn’t suspended, and there need it too. If you don’t have this were issues around which version organised then you need to do it a hick lawyer from of their partnership deed was the asap. New Plymouth. His legitimate version, which resulted • If you have a law firm with only in the deceased partner’s family one trust account supervising opponents often lawyering up and everything got partner, then organise for another underestimated him very messy. But on the upside, this partner/director to do the trust firm did have keyman insurance in account supervisor course asap. and it was fun to place for their deceased partner so Those two partners should then watch him use this the financial stress wouldn’t have take turns at being trust account been as bad. supervisor on a 12-24 month rota- to his advantage. tion so they both keep up to date with current practices. What does • Where possible, create passive revenue streams for your business I was blessed to have a healthy baby all this mean to assist with the financial strain boy last year. Hopefully he won’t if something bad happens. have picked up any workaholic ten- for you? dencies from my crazy work hours while he was in the womb. Over the last 18 months I’ve realised So how did I’d like to make a brief tribute to that the business succession plan- Dennis who was such an amazing ning stuff we hear and read about I survive? mentor to me, as well as many other is actually bang on the mark. You lawyers over the years. Dad was a need to do it properly. Here are my I’d love to have something really very strategic lawyer and I loved recommendations for you: profound to share with you but I watching his tactical moves. One of • Whatever stage you’re at with don’t. I basically just kept good lists his best tactics was pretending to be your law firm or business, you of everything that needed doing, and a hick lawyer from New Plymouth. need to start succession planning I kept chipping away at them. I learnt His opponents often underestimated now, even if you and your business to delegate more. As soon as Dad him and it was fun to watch him partners are younger. Go through died I realised I urgently needed an use this to his advantage. When it each different scenario of each assistant to help me sort out a bunch came to technology and the future partner not being able to work of stuff and to hold the fort when I of law Dad was way ahead of his anymore and consider the impact took a couple of days off to give birth. time. What I didn’t mention above of that partner’s exit on your firm I employed someone straight away is that while I was busy trying to by running the numbers, and then and it was a massive help. keep my firm afloat last year I was put a plan in place to mitigate this. After a real rough patch last year, also getting Automio off the ground. • If one of your business partners things did improve in my business. Automio is making great strides with has health issues and he/she I’ll be honest though, I wasn’t at all documentation automation due to a doesn’t want to start making plans myself last year and I wasn’t at all lot of hard work by our very talented for their exit, they are probably pleasant to be around. This year I’ve team, but it wouldn’t exist without in denial so you need to have an put much more focus on my health Dad’s vision. Dad, I’m so sad you’re honest chat about why it’s impor- and wellbeing, and make time to not here to be part of bringing tant to do some planning asap. exercise and have fun. I’m also taking Automio to life, but I know you’ll be • Get your partnership agreement time off now and then. I’m looking watching our every move with a big or shareholders’ agreement sorted forward to being a digital nomad for smile saying “go you good thing go”. asap. So many firms and busi- a month during June/July and doing nesses don’t have one. Or they’ve an Aussie roadie with my family. To getting shit done, got a draft one that they’ve been Oh, and in case you’re wondering, Claudia

43 PRACTICE August 2017 · LAWTALK 909

PRACTICE Equity vs non-equity partners What are best practices?

BY EMILY MORROW

in new partners with less of a finan- to partnership meetings but excuse Succession planning is a compelling issue for the cial commitment, while creating them from all financial discussions. New Zealand legal community as many ‘baby boomer’ a status for individuals who will Frequently, it is the practice man- lawyers are, or soon will be, retiring. This is good and benefit from having a partnership ager who is tasked with either bad news. The good news is that there are likely to be title. NEPs typically fall into one ‘hiding’ the financials or disclosing opportunities for younger lawyers to become partners. of two categories; those for whom them, a situation that can prove to The bad news is there could be insufficient lawyers to NEP status is a clear step towards be fraught for all involved. fill these positions, particularly outside of the main equity partnership and those who My preference is for full or close to urban areas. will likely never become EPs. I tend full financial disclosure with NEPs. Successful succession planning is closely associated to think it is a better practice to use I realise this can create friction, with bringing lawyers in as new partners, whether NEP status in the former rather than particularly over compensation through internal promotion or lateral hires. Whether or the latter context. Having long-term issues. However, if this is handled not to have a non-equity partner (NEP) status available in NEPs can create structural problems in a fair and appropriate way, both a firm is an important consideration in this regard. Firms for a firm which can be problematic for EPs and NEPs, then, at least in often struggle with the advantages and disadvantages over time. On the other hand, it can theory, there should be nothing to of doing so and the answers are not always self-evident. work well to have NEPs ‘in waiting’ hide. If there is, a firm would be Consider the following: Brown & Baker is a fictitious who spend several years as such well advised to revisit its partner law firm located in a smaller regional centre in New before entering into equity, often compensation structure. Zealand. It currently has eight lawyers, five of whom in a lock-step arrangement. If an NEP comes in as a senior are full parity equity partners (EPs) and three of whom One of the disadvantages of NEPs lateral hire, that individual will want are over 60. The three staff lawyers have between two (from the perspective of EPs), is that to see the firm’s finances and under- and five years’ experience. Brown & Baker’s practice has NEPs do not share in the firm’s full stand the partner compensation been growing steadily as smaller regional firms close due financial liability in the same way system, etc before joining the firm. to the retirement of older practitioners whose clients that EPs do. This can consolidate In that case, I think there needs to have migrated to Brown & Baker. liability amongst a relatively few be full disclosure. If an NEP comes The managing partner explained there were two EPs and potentially create a disin- through the ranks, then I suppose sources of new partners for the firm; existing solicitors centive to move into a full equity it is more acceptable to share less in the firm who had the potential to become partners position. Why buy the cow if you information with him/her, and there and more senior lateral hires. Despite being a regional can just buy the milk? Assuming EPs may be less of an expectation to do market leader, Brown & Baker has struggled to attract earn more than NEPs, the income so. Again, however, I think it is a and retain talent because many lawyers prefer to live differential must be large enough better practice to be open about the in larger urban areas. Accordingly, the firm needs to to compensate for these liability finances. make the pathway to partnership particularly appealing. concerns. Another instance in which NEP Brown & Baker has never had NEPs and all EPs have status can be helpful, is when there is been full parity partners. The partners have differing The financial aspects considerable disparity between the views on whether they should have NEPs. Some wel- of NEP status billings and business development come the idea as a way of bringing talent into the firm Assuming NEP status is used as a of partners within a firm. For exam- without the significant commitments, on both sides, of segue to full equity, a firm should ple, if a partner is less productive equity partnership. Others are concerned it would result optimise that process. For example, financially and brings in less new in relatively few EPs carrying the full personal liability for some firms are very transparent business, due, for example, to the the firm and the creation of a permanent ‘second class with their NEPs as to the firm’s need to devote more time to family partnership status’. What should the fictional firm do? finances, EP compensation, expense or other ‘outside’ interests, moving allocation and the like, whereas into NEP status can be an excellent The pros and cons of NEPs others are quite non-disclosing. solution. Without that, friction can NEP status can be an excellent way to gradually bring Some firms will invite their NEPs develop within the partnership due

44 to perceived inequities in billings encourage a lawyer who lacks busi- is a matter of judgement and the decision will vary and/or expense allocation amongst ness development, leadership and/ from firm to firm. However, I do think there are some partners. Stepping out of equity can or management abilities but who arrangements that will likely withstand the test of time mitigate these contentious issues is a good, ‘solid’ lawyer to remain better than others. ▪ and keep a partnership together for indefinitely as an NEP. Although this the long term benefit of the firm as can work well, it can also be prob- Emily Morrow  [email protected] was a a whole. lematic. For such an arrangement lawyer and senior partner with a large firm in the to succeed long term, there must United States. She now resides in Auckland and Integration of NEPs be complete alignment between the provides consulting services for lawyers, focusing into the partnership individual’s and the firm’s personal on non-technical skills that correlate with professional To set the stage for a smooth and professional goals. It can be a success. transition from NEP to EP status better practice to encourage an NEP over time, I suggest firms do the who clearly will never move into following: equity to find a more appropriate • Have NEPs attend all partner position in another setting. meetings, • Encourage NEPs to assume firm Should a firm continue governance/leadership roles, to have NEPs? • Invite NEPs to all partners’ off- If a firm has had NEPs historically, site planning retreats and social it may be appropriate to consider events, whether that structure remains • Provide ‘soft skills’ training to appropriate. For example, a firm that NEPs to expedite their readiness has made NEPs part of its succes- Recognised industry for equity, sion plan may later find it no longer experts. Serving legal • Equalise the playing field between needs to do so to attract/cultivate/ documents for over equity and NEPs internally and retain new EPs. Frequently, the most 27 years. externally, robust firms only have EPs, albeit • Encourage NEPs to participate ones with unequal equity interests. Fast, professional, nationwide actively in partner meetings Eliminating NEP status may require process serving for solicitors & and vote on all matters except rethinking whether a parity part- government agencies. uniquely equity issues. nership model is the best way to P: (09) 302-2476 handle partner compensation. That E: [email protected] Movement from said, it may be worth moving away W:www.docuserve.co.nz NEP to EP status from parity and towards percentage Generally, I have found NEP status interests that reflect individual EP works best as a transitional role, contributions rather than having rather than a permanent position for long term NEPs. a lawyer. Firms will often, however, Whether or not to have NEPs

45 PRACTICE

PRACTICE Why lawyers shouldn’t fear commoditisation

BY MICHAEL SMYTH

When I first started practising law in New Zealand the law firm at which I worked charged $1500 + GST for an employment agreement. In most cases, the agreement was formulaic and based off a template which didn’t require much alteration other than in perhaps 20% cases)? As I write, I am already hear- [employment law].” of cases. I don’t know what they charge now, but I do ing the horror cries from lawyers The good news is that it doesn’t need know that a New Zealand business owner can build and protesting that their conveyancing to be that way. download a legally compliant employment agreement service or employment agreement for free from the internet and my observation is that a is far superior to the one offered as Consider coffee significant number of businesses do that. a ‘commodity’. That may be, but it To make a cup of coffee you add When I practised in the UK, I recall some conveyancing is what the consumer thinks and coffee powder to a cup, add boiling firms would adopt a charging methodology based upon understands that matters. water and then milk and sugar (if 0.5% of the transaction value for their fees. Conveyancers desired) to taste. Whilst a con- would bemoan real estate agents who would charge What causes tainer of instant coffee is relatively significantly more for doing comparatively less (in their commoditisation? inexpensive I can’t remember the eyes at least). Then they moaned when rival firms started It would be tempting to think that last time I did that, despite being offering low-priced fixed fees and there was increasing fixed fee pricing is the cause of com- a coffee drinker. That’s because I competition. The subsequent introduction of licensed moditisation. That’s what seemed am one of those people who spend conveyancers meant that you didn’t have to have a law to happen to conveyancing in the upwards of $3.50 on one or more degree to do conveyancing, and prices fell further. UK. However, the notional 0.5% of barista-made coffees each day. I What I witnessed in both scenarios was the effect of transaction cost was a fixed fee of even have my favourite cafés and commoditisation. sorts because the consumer knew in am reluctant to drink coffee in a advance what they would be paying. chain coffee store. What is commoditisation? It was just more expensive than the So, whilst you could argue that Wikipedia defines commoditisation as: rival firm down the high street. coffee is a commodity because it “The process by which goods that have economic What causes commoditisation is attracts a fixed price, people are value and are distinguishable in terms of attributes a perception in consumers’ minds willing to pay a lot of money (the (uniqueness or brand) end up becoming simply com- that the service being offered no profit margin on a cup of coffee is modities in the eyes of the market or consumer. It longer adds value to the outcome. As between 300-400%) and demon- is the movement of a market from differentiated to one user of legal services put it in a strate evangelical brand loyalty to undifferentiated price competition and from monop- recent survey of legal service users: get their regular cup of Joe each day. olistic to perfect competition. Hence the key effect “I have always viewed lawyers What does this mean for lawyers? of commoditisation is that the pricing power of the as very expensive for what manufacturer or brand owner is weakened: when they offer. Legal advice can The lawyer’s answer products become more similar from the buyer’s be hard to quantify the return to commoditisation point of view, they will tend to buy the cheapest.” on and the expenses quite Brands like Apple spend billions In many consumers’ eyes, acquiring an employment unpredictable. With a couple of dollars on advertising to inform agreement has become a commodity. Similarly, the of exceptions (court cases) I the consumer of their latest product conveyancing process has become a commodity. Why have only used them when because they understand that they pay several thousand dollars for the same outcome you absolutely essential, primarily cannot fight commoditisation in the can get down the road for half the price (or free in some around conveyancing work and digital age. They are continually

46 PRACTICE

PRACTICE Why provisional tax ain’t so bad now

BY CHRIS CUNNIFFE Photo by Flickr user Andrii Stashko CC-By-NC-ND Flickr user Andrii Stashko by Photo 

A disliked aspect of the New Zealand tax system delivering more features to their phones and devices to should no longer draw the ire of legal professionals. justify the price tag they want to charge and differentiate For so long provisional tax has been difficult to get themselves from their competition. They understand right and expensive to get wrong for lawyers because that because commoditisation is a way of life, they must of the uncertainty which so often accompanied it. keep delivering more for less to maintain their profit That is no longer the case. margins. I offer the same cautionary tale to lawyers and On 28 August, many will pay their first instalment will suggest some strategies. of provisional tax under a new set of rules that will First, identify which parts of your practice can be provide greater certainty. Base your payments on a 5% commoditised and deliver that commodity better than uplift of the previous year’s income tax bill and you will anyone else. We have all turned our noses up at the not face IRD interest. ‘clunky’ downloaded document, so figure out how to This represents an improvement on the somewhat deliver a better document at a lower cost than you would unfair system of old. In the past, you had to forecast normally. Perhaps technology can assist you? exactly how much tax you would have to pay, and were Second, identify what areas of your practise can’t be then subjected to steep IRD interest if you underpaid. commoditised – and be honest here, because if it can Why? Because the taxman operated with the benefit be commoditised at least in some way, someone else of hindsight. will figure out how to do it and leave you behind. Those For lawyers, IRD’s previous stance made things some- areas of your practice that can’t be commoditised are what challenging. After all, most clients tend to pay on your profit centres. Lawyers have great minds which the completion of work, meaning billing can be lumpy. need to solve complex business problems. How do you Only those who kept a crystal ball in the top drawer know what those problems are? Ironically, delivering a ever got provisional tax right. commoditised service can sometimes help identify to But don’t get too excited about the new rules. This is you and your client, where those complex problems lie. tax. Legal professionals know all too well that the devil That’s why commoditisation is not always something lurks in the detail when it comes to legislation. to fear. ▪ Outlined below is a brief overview of how provisional Have you noticed the effects of commoditisation in your tax will work under the revamped regime. This will give practice area and how are you addressing it? you an idea of what you need to pay and when you need to pay it. Michael Smyth  [email protected] The biggest change applies to what IRD calls the ‘safe is a sole practitioner and director of Approachable harbour’. If: Lawyer Ltd. He has been in private practice for 22 • Your actual income tax liability is less than $60,000; years, six of those working in London. Michael has and a particular interest in understanding how legal • You paid the amounts of tax required as per the services can be delivered more efficiently to meet standard method at your three provisional tax dates client needs and is exploring some of the themes for that year. uncovered by his research, including a survey of 79 Then: legal services users. • You will not be charged IRD interest if you did not pay

47 enough provisional tax, provided any final balance is Capping the liability at the uplift IRD has prescribed dates on paid by your terminal tax date. amount for the first and second which it expects provisional tax to The safe harbour threshold was previously $50,000 and instalments provides certainty. In be paid. You will be charged interest applied to individuals only. Increasing the threshold and the past, additional income derived of 8.22% if you pay less than the extending it to companies and trusts is a significant win was treated by IRD as if it was uplift amount on the dates required. for lawyers working at the small end of town. earned evenly throughout the year Interest will be charged on the lower The second change affects medium and larger legal and interest would accrue from the of uplift or one third of the actual firms. If: date(s) of any underpayment. liability. Late payment penalties will • Your actual income tax liability is $60,000 or more; and Having the final balance due at also apply if tax is not paid on time. • You paid provisional tax for that year based on the the third provisional tax instalment One option to consider when standard method. is sensible because you should have looking at tax planning and cashflow Then: a good estimation of your actual management is paying through an • You will not be charged IRD interest if you paid the liability. IRD-approved tax pooling interme- amounts of tax due as per the standard method at diary. This lets lawyers settle their your first and second provisional tax dates for that But what about cashflow? tax liability when it suits them and year, even if your actual liability is higher. For all the work IRD has done to when they know exactly how much • The final balance will be due at your third provisional improve the provisional tax system, they need to pay, at an interest cost tax date. IRD interest applies on any underpayment there remains one challenge: man- that is much cheaper than what IRD of tax from the third provisional tax date. aging cashflow. charges, and without incurring late payment penalties. As always, be sure to speak with your accountant if you have any questions about the changes to provisional tax. ▪

Chris Cunniffe is the chief executive Providing Professional Indemnity and specialist insurance of Tax Management NZ, and the products to the Legal Profession former head of the BNZ and Air Visit www.justitia.co.nz for further information and application forms New Zealand tax teams. He is also a Or Contact: Mr Ross Meijer, Aon New Zealand member of Chartered Accountants 04-819-4000 ANZ’s tax advisory group, which [email protected] meets regularly with the Minister of Revenue and senior IRD officials.

48 LAWTALK 909 · August 2017 THE NEW LAWYER

THE NEW LAWYER You, human lawyer, are allowed not to know things

BY KATIE COWAN I don’t know what they teach in schools now, but I don’t know what when I was there mistakes, failure, and not knowing they teach in schools were definitely not in vogue. They were covered up or now, but when I was I grew up in a house with a erased or ignored, definitely not confronted and dealt there mistakes, failure, poster titled Life’s Little Instructions with. And you know what they say, that which you and not knowing hung up in the bathroom. It included resist, persists. I never learned how to be okay with were definitely not instructions like, “call your mother”, inadequate performance and incomplete knowledge, in vogue. They were “return borrowed vehicles with the or the fear those states prompted. I thought that any covered up or erased gas tank full”, and “know how to evidence of not knowing was a mark against me. At the or ignored, definitely make homemade brownies”. All fair time, it probably was. not confronted and enough, if rather Americo-centric. I know I am not alone in this because there is a dealt with. I would sing the contents of the whole industry of books and counselling and reform poster to the tune of Castle on a programmes targeting the imposter syndrome such a results felt counterintuitive: both Cloud, from Les Misérables. If you background begets. We are a profession of all or nothing supervisors and clients seemed to didn’t need the lines to make sense, perfectionists, unable to come to terms with our innate have more trust in me after I said I you could make them rhyme: “Sing (human) limitations. didn’t know something. Apparently in a choir, treat everyyy / one you meet When I became a lawyer, this pattern was so rein- knowing someone is not inclined like you want to be / treated watch a forced it felt like the only way. My capacity to manage to bluff their way through legal sunrise at least / once a year leave the the discomfort of not knowing a thing someone clearly research or advice is a comfort. toilet seat*…” and so on. It was very expected me to know already would prompt a full on This thing is an example of how clever of me. fight/flight/freeze response in me. I would pretend to one person’s experience of an inter- One of the instructions made no understand and then go back to my desk and frantically action can be radically different sense to me as a child: “don’t be research to try and figure out whatever it was I didn’t from the other person’s in the same afraid to say I don’t know”. I did not know. interaction. You feel terrified, but get why that needed an instruction; Time passed, and I soon had to delegate work to most lawyers delegating work do if you didn’t know something, you more junior lawyers. Despite my best efforts to dele- not expect you to know everything could just say it. No big deal. It gate perfectly, work would sometimes come back to already, and even if they do, they also made scansion into the song me unusable, incomplete, or wrong. I had forgotten to would much rather you alerted difficult so I resented it for many ask whether my intelligent and well-meaning junior them before you started doing work reasons. knew what I was talking about when I had given the than after. But then I became a teenager, and instructions. Often, it turned out, they had not, and Obviously there is a time and later an adult, where I was perpetu- had been paralysed by the same fear that stopped me place to disclose you do not know, ally aware of what everyone thought flagging it in my early years. but my point is that there is a time of me. And suddenly not knowing, When I had been in the junior’s position, when it and place. And when you are in that and admitting to not knowing, was discovered that I did not know something I should time and place, feel free to speak up. became frightening indeed. have known, I remember feeling humiliated and scared So that is one instruction down; Being a precocious, high achiev- of being uncovered as a fraud who knew nothing and now to call my mother. ▪ er-type, it was very important that I definitely should not be a lawyer. But in the delegator’s knew all. Otherwise my cred would position, when it turned out my junior did not know Katie Cowan  katie@symphony be shattered. You might scoff that what I had assumed they knew, I did not see them as a law.co.nz founded Christchurch- the cred one garners in an advanced shameful excuse for a lawyer. My concerns were more based litigation services provider maths class is not cred worth temporary and far less personal, usually only that we Symphony Law Ltd. She also set having, but I doubt it. Most lawyers had wasted some time we could have avoided wasting. up The New Lawyer fortnightly were once precocious children. Having had that experience a few times, I resolved to podcasts at thenewlawyer.co.nz do better both at checking in with juniors on whether for new and prospective lawyers * This line finished “in the down posi- they knew what they were doing and, when I was a with the aim of thinking in new tion”, in case anyone is alarmed by junior myself, on declaring easily and quickly when I ways about the practice and the sudden tonal shift. did not know something. When I started doing that, the culture of law.

49 COMPLAINTS August 2017 · LAWTALK 909

COMPLAINTS Complaints against lawyers continue to decline (ALL 2017 FIGURES PROVISIONAL) COMPLAINTS LODGED WITH LAWYERS COMPLAINTS SERVICE, YEAR TO 30 JUNE

Complaints lodged with the Lawyers Complaints Direction 2015 2016 2017 * Service against lawyers have fallen each year for the last three years. Provisional information from the New Lawyers 1528 1363 1331 Zealand Law Society’s Lawyers Complaints Service for the year to 30 June 2017 shows that 93.7% of complaints Former lawyers 34 25 28 lodged were against practising lawyers. Complaints against lawyers were down 2.3% on the previous year, Non-lawyer employees 29 48 39 while all complaints were down by 2.8%. Of all com- Former non-lawyer employees plaints received, 68% were against men and 32% were 0 0 1 against women. Incorporated law firms 20 23 18 Resolution of complaints by Lawyers Complaints Service Former incorporated law firms 0 0 2 Since 2013, all complaints when received have been Total 1611 1459 1419 assigned to one of two processes. If assigned to the standard track process, a complaint is copied to the RESULT OF ALL COMPLAINTS CLOSED, YEAR TO 30 JUNE lawyer and the lawyer’s response is copied to the com- Result 2015 2016 2017 * plainant. The complaint is then considered by a lawyers standards committee. This will make a decision after Decision to take no action 1137 1253 1101 further investigation if seen as necessary. TheEarly Resolution Service (ERS) was established Referred to and resolved by negotiation, 143 97 116 in 2013 to introduce a faster and more flexible resolution conciliation or mediation process for complaints considered less serious. A triage Withdrawn, discontinued or settled 64 45 15 system is used by the lawyers complaints service to Orders made by lawyers decide if a matter is suitable to be sent to ERS. Where a standards committee 186 170 189 complaint goes to ERS, the parties are invited to explore resolution by negotiation or the standards committee Complaints outstanding at 30 June 702 564 516 may make a finding of no further action. In the year to 30 June 2017, 1467 complaints were Complaints closed during year 1529 1595 1467 closed and 41% of these were concluded through ERS. Of the complaints closed during 2016/17, 75% resulted EARLY RESOLUTION SERVICE, YEAR TO 30 JUNE in a decision to take no further action. When complaints Measure 2015 2016 2017 * which were resolved by negotiation, conciliation or Complaints accepted (regardless mediation plus those which were withdrawn are of when opened) 686 679 644 included, 84% of all complaints investigated resulted Complaints where decision in no further action being required. to take no action 452 495 488

Time to resolve complaints Complaints resolved 186 120 110 One difference between the Early Resolution Service Complaints closed during year process and the “standard track” process is shown by 638 615 598 the average time taken to conclude complaints which Complaints outstanding at end of year 43 20 14 were closed in 2016/17. Complaints closed by ERS took an average of 28 days, while the average time to conclude Complaints not resolved and 65 76 52 standard track complaints was 231 days. Overall, the returned to standard process average time to conclude all complaints closed in the Proportion of all complaints received 43% 47% 44% year to 30 June 2017 was 148 days. This was down from an average of 160 days in the year to 30 June 2016. ▪ Proportion of all complaints closed 42% 39% 41%

50 Common themes in complaints against lawyers about Conveyancing

BY LISETTE SOLIS

property complaints monthly in that supervising solicitors check Property complaints seem to be a growing area 2016. REINZ reports that 4,307 that the conveyance is being done of complaints in New Zealand. For the past two years, homes were sold in January 2017, properly and are available to answer property has been the area of practice which the Lawyers but the Lawyers Complaints service questions should any issues arise. Complaints Service has received the highest number of has received an average of 27 prop- In one complaint, the legal execu- complaints in. This year there has been a 7% increase erty complaints per month this year. tive had agreed to a fee from the other in property complaints from last year. In the year to This again suggests a slight increase party’s lawyer without consulting 30 June 2016, 308 property related complaints were in the number of complaints about their supervising solicitor or the received from 1,458 complaints received. In the year conveyancing, despite a decrease in client. The client later complained to to 30 June 2017, of 1,419 complaints received, 327 were the number of homes being sold. the Lawyers Complaints Service about property related. the other lawyer’s fees, at which point Within property law, conveyancing is by far the most Supervision and the other lawyer responded that the common type of work that the Lawyers Complaints conveyancing legal executive had approved the Service receives complaints about. However, it should It is common to delegate conveyanc- fees. Supervising solicitors should be noted that while a high number of complaints ing work to junior lawyers or legal ensure that legal executives are clear about conveyancing are received, the number of com- executives. For this reason, issues on what needs to be referred to the plaints received is minuscule relative to the number of of supervision are raised in prop- supervising solicitor. homes being sold in New Zealand. REINZ reports that erty complaints more often than In another complaint, the set- 5,048 homes were sold in January 2016. The Lawyers they are in complaints about other tlement was delayed three times Complaints Service received an average of only 25 areas of practice. It is important because the legal executive assigned

51 COMPLAINTS August 2017 · LAWTALK 909

Undertakings play an legal costs being paid demonstrated Another unsatisfactory conduct finding was made important role in legal an unfamiliarity with the terms of against a lawyer for a vendor who failed to comply with practice, so any breach clauses 3.12 and 3.13 of the stand- an undertaking by not releasing the transfer on the set- of an undertaking is ard Auckland District Law Society tlement date due to work commitments. In upholding WANTED: taken very seriously Agreement for Sale and Purchase. the decision the LCRO referred to its previous decision by the committees. These clauses set out a specific (LCRO 239/2010) where it said that the complainant Complaints about process that is to be followed in in that matter was right to express concern that the conveyancing often the event of late settlement due settlement process could be compromised by lawyers Lawyers keen to make a contribution allege that someone to the purchaser’s default and in who do not take care to organise matters to enable them has breached an the event that a dispute should to attend to their obligations. undertaking when they arise between the parties as to any to New Zealand law reform have failed to release an additional expenses and damages. Deadlines and conveyancing e-dealing as promised. The committee said that in its view There are strict deadlines around conveyancing, and it while a lawyer is entitled to require is important for practitioners to recognise that missing penalty interest is paid before these deadlines can have serious implications on the to the file did not know how to lodge releasing an e-dealing, any addi- personal lives of their clients. A NZLS legal standards documentation required by LINZ to tional expenses and damages must officer has recently noticed complaints about poor advice issue new titles for a subdivision. be dealt with in accordance with resulting in missed deadlines for KiwiSaver withdraw- The New Zealand Law Society plays an active If you are: She had advised the supervising clause 13.3. Ultimately, a finding of als and HomeStart grants. These funds are available to and important role in the reform of law in New partner of this when she was unsatisfactory conduct was made KiwiSaver contributors who are purchasing their first Zealand. The Law Society has a reputation for · enthusiastic about, and have skills and expertise in a producing high quality, impartial and considered given the file, but he did not offer against the lawyer for the vendor. home. The applications must be completed by the client relevant area of law, her any help and was not available It is important that lawyers are before settlement and the funds cannot be accessed after submissions on a wide range of legal issues, on · keen to share your knowledge and to work for questions. The standards com- familiar with the specifics of these settlement. There have been several complaints about behalf of the legal profession and in the public mittee ultimately made a finding processes to avoid misunderstand- lawyers who have failed to advise their clients of these interest. This is possible thanks to the dedication collaboratively with other practitioners, and hard work of members of the profession of unsatisfactory conduct against ings such as this. rules and whose clients have borrowed funds from other · willing to volunteer your time and expertise for the the lawyer for failing to supervise Any breach of an undertaking, places to settle initially, thinking that they would be able who volunteer their time and expertise to serve benefit of the profession and the community, and and manage his employees. The even if done so unintentionally, is to repay these loans with the money from KiwiSaver. on the Law Society’s law reform committees. committee stressed the fact that a serious matter. In one complaint However, once settlement has been completed they are · available to respond to consultation on law reform The Law Society is now calling for applications the legal executive reached out to two lawyers were unable to honour no longer eligible to receive KiwiSaver funds. This puts when required several people for help and had not an undertaking to transfer the clients in the stressful situation of needing to find other from lawyers and associate Law Society members received any guidance from the property immediately because the ways of repaying the money they have borrowed. In interested in serving on the Law Society’s Law ... then we need you. Reform Committee or one of these specialist supervising partner. sale proceeds were not enough to one of the complaints the couple had borrowed $9,000 committees: repay the mortgage on the house. which put a serious, unexpected financial burden on Breach of Undertakings They had given the undertaking them when they were unable to receive the HomeStart · Accident Compensation Committee Undertakings play an important based on the client’s belief that the grant as they had planned. · Civil Litigation and Tribunals Committee NZLS committee membership is a great way to get role in legal practice, so any sale proceeds would be sufficient to One firm includes a section in their initial letter to involved and have your say on law reform issues. It is · Commercial and Business Law Committee breach of an undertaking is taken cover the mortgage and there had the client about KiwiSaver withdrawals and HomeStart also an excellent basis for professional development as very seriously by the committees. been no intent to deceive; however, grants which makes it clear to the client that they must · Criminal Law Committee well as collegiality and networking. Your contribution Complaints about conveyancing the committee considered that the submit their documents to Housing New Zealand after · Employment Law Committee to NZLS law reform may also count towards your CPD (Continuing Professional Development). often allege that someone has lawyers still had an obligation to they receive a “pre-approval” letter and before settle- · Health Law Committee breached an undertaking when they honour the undertaking. ment. This is a good practice because it makes it very have failed to release an e-dealing clear to clients that they must complete these forms and · Human Rights and Privacy Committee Go to lawsociety.org.nz/law-reform-2017 for information as promised. Usually this happens the time frames that they need to be aware of. · Immigration and Refugee Law Committee on the committees and role descriptions, and to apply. Application forms and information packs are also available when an unforeseen complication · Legal Services Committee arises and the lawyer for the vendor There are strict New Clients and Conveyancing via email from [email protected]. believes they have the right to delay deadlines Conveyancing is one of the most common types of work · Public and Administrative Law Committee completing the e-dealing. around that lawyers are engaged to do, and for many clients is · Rule of Law Committee Convenors will be appointed by the NZLS Board in late August and committee members will be appointed by In one example, the lawyer for conveyancing, the first time they have ever engaged a lawyer. Lawyers · Tax Law Committee the purchaser complained that the and it is working in this area cannot assume that these clients the President in early September. Appointments are for · Youth Justice Committee lawyer for the vendor did not com- important for know what to expect, so clear and regular communi- a two-year term from September 2017. plete the e-dealing after receiving practitioners to cation is important. For instance, clients often do not the settlement amount and penalty recognise that realize that they will be billed for sales or purchases interest. The lawyer for the vendor missing these which fall through. To avoid confusion and conflicts had delayed because of a dispute deadlines can over this, information about fees and billing should be over additional legal costs incurred have serious made clear to clients in the Terms of Engagement and due to late settlement. The standards implications on communicated to them throughout. ▪ Applications close at 5pm Friday 11 August 2017. committee said that the lawyer’s the personal conduct in failing to release the lives of their Lisette Solis is an employee of the New Zealand Law e-dealing prior to the additional clients. Society. To view the role descriptions and information lawsociety.org.nz/law-reform-2017 about the committee, and to apply, go to 52 WANTED: Lawyers keen to make a contribution to New Zealand law reform

The New Zealand Law Society plays an active If you are: and important role in the reform of law in New Zealand. The Law Society has a reputation for · enthusiastic about, and have skills and expertise in a producing high quality, impartial and considered relevant area of law, submissions on a wide range of legal issues, on behalf of the legal profession and in the public · keen to share your knowledge and to work interest. This is possible thanks to the dedication collaboratively with other practitioners, and hard work of members of the profession · willing to volunteer your time and expertise for the who volunteer their time and expertise to serve on the Law Society’s law reform committees. benefit of the profession and the community, and · available to respond to consultation on law reform The Law Society is now calling for applications when required from lawyers and associate Law Society members interested in serving on the Law Society’s Law ... then we need you. Reform Committee or one of these specialist committees: · Accident Compensation Committee · Civil Litigation and Tribunals Committee NZLS committee membership is a great way to get involved and have your say on law reform issues. It is · Commercial and Business Law Committee also an excellent basis for professional development as · Criminal Law Committee well as collegiality and networking. Your contribution · Employment Law Committee to NZLS law reform may also count towards your CPD (Continuing Professional Development). · Health Law Committee · Human Rights and Privacy Committee Go to lawsociety.org.nz/law-reform-2017 for information · Immigration and Refugee Law Committee on the committees and role descriptions, and to apply. Application forms and information packs are also available · Legal Services Committee via email from [email protected]. · Public and Administrative Law Committee · Rule of Law Committee Convenors will be appointed by the NZLS Board in late August and committee members will be appointed by · Tax Law Committee the President in early September. Appointments are for · Youth Justice Committee a two-year term from September 2017.

Applications close at 5pm Friday 11 August 2017.

To view the role descriptions and information lawsociety.org.nz/law-reform-2017 about the committee, and to apply, go to COMPLAINTS August 2017 · LAWTALK 909

COMPLAINTS

Lawyers Complaints Service

Censured client, Mr Y, the committee made three name, be published in both cases. findings of unsatisfactory conduct. “In the committee’s view, the conduct and fined for The first finding related to Mr Faleauto was serious and the need to protect con- receiving cash from his client’s sister before sumers of legal services outweighed the “high-end” rendering an invoice and failing to pay that interests and privacy of Mr Faleauto and money into a trust account. his relatives [and] clients. unsatisfactory The second finding related to failing to “In particular, the committee believed complete the retainer, failing to keep the that the community in which Mr Faleauto conduct client informed of progress on the retainer, practised was entitled to know of its find- and failing in his obligations of courtesy ings in relation to his conduct in deciding Edward George Tanu (Ted) Faleauto owed to the client and his sister. whether or not to instruct him to under- Johnston has been censured and fined The third unsatisfactory conduct find- take work for them,” the committee said. for “high-end unsatisfactory conduct” in ing related to Mr Faleauto not having an two separate lawyers standards committee instructing solicitor. LCRO Review decisions. Mr Faleauto said he left New Zealand for Mr Faleauto applied to the Legal Complaints In both cases, Mr Faleauto, who was Samoa part way through 2013 but always Review Officer (LCRO) for reviews of the practising as a barrister, represented cli- intended to return to New Zealand for Mr two decisions that his name be published. ents facing criminal charges in the District G’s defended hearing in October. However, In LCRO 99/2015 and LCRO 100/2015, Court. Due to his absence overseas, Mr constant court delays and the fact he was the LCRO confirmed the two decisions Faleauto did not appear for the clients at working on a very involved case in Samoa to publish Mr Faleauto’s name, directing scheduled hearings. As well as the two at the time made it impossible. He said that in each case that “the materials the com- censures, in each case he was fined $5,000. after leaving for Samoa he had overlooked mittee publishes should be linked to this In each decision, the committee said it Mr Y’s case, for which he apologises. decision”. gave “serious consideration” to referring “The committee considers Mr Faleauto’s “Mr Faleauto has provided no good the matter to the New Zealand Lawyers conduct to be high-end unsatisfactory reason to reverse the committee’s direc- and Conveyancers Disciplinary Tribunal. conduct,” each of the two decisions states. tion,” the LCRO said in both reviews. ▪ First standards Unacceptable conduct committee decision “It is unacceptable for a lawyer to accept Former lawyer In the first case, a standards committee instructions to act for a client, then travel found two counts of unsatisfactory con- overseas and fail to return to appear at censured duct by Mr Faleauto. a court hearing without so much as con- One was that he failed to complete a tacting the client or arranging an agent and fined retainer for a client, Mr G, failed to keep to appear. Mr G informed of progress of the retainer, “A client is entitled to have confidence Former lawyer Murray Withers has and fell “woefully short” of the obligation and trust in his or her lawyer,” the com- been censured and fined $3,000 for a series of courtesy he owed Mr G. Mr Faleauto mittee said. of breaches relating to the administration did not appear to represent Mr G at his In the first case, Mr Faleauto was ordered of an estate. defended hearing in the District Court in to cancel his $1,000 fee and refund $1,000, The lawyers standards committee October 2013. to apologise in writing and to pay $500 dealing with the matter also ordered Mr The second finding was that he received costs. Withers to reduce the account for estate money directly from Mr G before rendering In the second case, Mr Faleauto was administration by $3,000 plus GST and to an invoice and failed to pay that money ordered to cancel his $500 fee and refund make two refunds – one of $3,000 plus GST into a trust account. his client’s sister the $500, apologise in and one of $1,500 plus GST – to the estate writing to his client and the client’s sister administrator. Second standards and to pay $500 costs. Mr Withers was struck off by the New committee decision The committee also ordered that a sum- Zealand Lawyers and Conveyancers In a separate case related to a different mary of its decision, including Mr Faleauto’s Disciplinary Tribunal in July 2013 – [2013]

54 LAWTALK 909 · August 2017 COMPLAINTS

NZLCDT 39 – (see LawTalk 835, 14 February omission to pay the … account constitutes 2014). unsatisfactory conduct.” Sewage easement Mr Withers acted in the estate of a The title to the section was subject to a man who died intestate in the spring of House cleaning three-metre wide sewage easement, run- September 2010. The complaint against Mr Withers had been expressly instructed ning the full length and width of the land. him related to three issues: to employ commercial cleaners to clean This meant the clients could not construct • Fees charged in relation to the estate; the deceased’s house. a house to the design specifications or in • Failure to pay an outstanding account in Mr Withers had advised that commer- the position they had planned. the course of the estate administration; cial cleaners had estimated an amount The clients learned of the easement and between $1,500 and $2,000. from their builder after the purchase was • Mr Withers’ engagement of a non-com- Instead, Mr Withers paid an organisa- complete. mercial organisation to clean the tion with which he was associated with “The title to the property and any ease- deceased’s house, contrary to the fam- to clean the house as a fund-raiser $2,500. ments, conditions or covenants affecting ily’s instructions. Twice in correspondence, Mr Withers’ firm the title are standard documents for law- expressly referred to an agreement to pay yers to review,” the standards committee Fees charged the organisation $1,000. said. The standards committee found there did That “clearly constitutes unsatisfactory It was not sufficient for the lawyer to not appear to be any basis for charging conduct,” the committee said. It directed simply advise the clients to read the docu- fees beyond the time spent on the matter. Mr Withers to pay $1,500 compensation ments, without providing any explanation The committee noted that in a letter to to the estate administrator – being the or advice on the title and the implications the estate administrator, Mr Withers stated difference between the stated payment of the registered interests. that “our fees were just on $13,000.” of $1,000 and the $2,500 actually paid. The clients, as non-lawyers, “cannot be That, the committee said, was “palpably As well as the censure, fine and com- expected to understand the implications incorrect”. The total fees were $18,298. pensation, the committee ordered Mr of the easement or the restrictions and “Even if one excluded the contemporane- Withers to pay $1,000 costs, and ordered conditions applying to the easement land ous sale fee, the estate administration fee publication of both the facts and Mr without legal advice.” was still $16,100 excluding disbursements. Withers’ name. The committee also noted that P had Mr Withers, in quoting $13,000, clearly also included “perusing the title” in his invoice omits to refer to the GST on the charges. LCRO review and for this and other reasons found that Having regard to the time records, the Mr Withers sought a review from the a review of the title formed part of the time costing up to the date of the bill was Legal Complaints Review Officer (LCRO). agreed retainer. $11,884, the committee noted. The LCRO noted that because of the time A further reduction of $1,000, to $1,200 of filing the review, the only matter it No LIM plus GST, must be made to provide a “fairer had jurisdiction to consider was whether P told the committee that he did not allowance for drafting time” (for drafting the committee’s direction to order name consider that a Land Information Mem- Letters of Administration, which had publication should be confirmed. orandum (LIM) was necessary because proved difficult). The LCRO confirmed name publica- the purchase was bare land in a new sub- “The committee is satisfied that the over- tion, stating that it was “necessary and division, with which P was familiar. The charging of the main account constitutes desirable in the public interest”. The LCRO clients also did not seek a LIM and had a unsatisfactory conduct. also directed that the organisation that copy of one for the underlying subdivision. “In all the circumstances it is appropriate conducted the cleaning should not be The clients had advised P’s assistant they to reduce the bill of costs … from $14,000 identified.▪ were happy to obtain a LIM but relied on to $11,000.” P to advise whether it was needed. The committee said it considered P was Outstanding account Censure and fine wrong to determine a LIM was unneces- Mr Withers’ firm was aware of a debt owed sary. The reasons for that included: to another law firm “from an early stage,” for inadequate • A LIM is an important component of a the committee noted. purchaser’s due diligence and a standard A letter from that firm “is illuminating,” advice document for lawyers to review before a the committee said. It referred to signifi- purchaser commits to buying a property; cant correspondence to Mr Withers’ firm A lawyer who failed to properly • The LIM the clients had was issued some but a “dearth of responses” in reply. advise the buyers of a property has been nine months before the contract, was It was clear that the debt was not paid censured and fined $2,500 by a lawyers out of date, and pertained to the subdi- and residuary estate funds were distributed standards committee. vision as a whole and not the property to beneficiaries without the firm making The lawyer, P, was also ordered to cancel the clients were buying; provision for payment of the debt “in cir- and refund his $1,201 fee for work on the • New information can be included in a cumstances where Mr Withers and his firm purchase. LIM by a council at any time; had responsibility to address payment,” The clients, a husband and wife, bought • Buyers should obtain their own LIM the committee said. a property where they planned to build a rather than relying on one provided to “The committee is of the view that the new energy efficient home. someone else, as they will have no claim

55 COMPLAINTS August 2017 · LAWTALK 909

COMPLAINTS

against the council if the information not provide advice on indemnity issues at his disposal to provide it with advice is inaccurate or incomplete because because he had acted for the insurer. on that.” the council only owes a duty of care in This meant that there was more than a respect of information contained in the The complaint neglible risk that D would not be able to LIM to the party requesting and paying Mr L later discovered that D had provided discharge the obligations he owed sepa- for it. advice to his insurer on indemnity issues. rately to D and the insurer. The committee found P’s determination Mr L then lodged a complaint with the D was ordered to pay $1,200 costs in that a LIM was unnecessary and his fail- Law Society, stating that D ought not addition to the $1,000 costs to the com- ure to provide adequate advice about the to have accepted instructions to act for mittee. As the parties had reached a private title and the easement was unsatisfactory him. This was because he had a conflict of agreement as to compensation, no other conduct. interest given that he advised the insurer order was made. ▪ As well as the censure, fine and order about indemnity. to cancel fees, the committee ordered P D’s counsel said that Mr L’s and the to pay $1,500 costs. ▪ insurer’s interests diverged only on Lawyers must indemnity and that Mr L took advice from another lawyer on indemnity. He said adhere to terms Acting for insurer that there was no breach of rule 6.1 of the Lawyers and Conveyancers Act (Lawyers: of agreement and insured was Conduct and Client Care) Rules 2008 in the circumstances. A lawyer acting for the seller in a unsatisfactory Rule 6.1 states that a lawyer must not property transaction has been fined $1,000 act for more than one client on a matter after refusing to release the e-dealing until conduct where there is a more than “negligible risk” additional costs were paid. that the lawyer may be unable to discharge A lawyers standards committee found A lawyer, D, who acted for an insurer the obligations owed to one or more of that the lawyer, J, had breached an under- and for the insured was guilty of unsatis- the clients. taking J had given to release the e-dealing factory conduct a lawyers standards com- At the point D obtained information from on receipt of confirmation of deposit of the mittee has found. The Legal Complaints Mr L so that he could file a statement of settlement funds. This was unsatisfactory Review Officer (LCRO) upheld the commit- defence, D was “plainly acting both for the conduct. tee’s decision on review. insurer and the insured,” the committee The purchaser had delayed settlement Another lawyer, Mr L, represented said. because there was a dispute about removal a defendant who was charged with Mr L needed to be represented by a of rubbish from the property. importing a Class C drug. The defendant lawyer who could give “disinterested and The purchaser’s lawyer paid J the bal- was convicted and sentenced to three objective advice” both on defending the ance of the purchase price, plus penalty years’ imprisonment. The Court of Appeal claim and on any claim for indemnity. interest, the day after settlement day. J quashed the conviction and ordered a The committee also said that a lawyer’s then refused to release the e-dealing until retrial. The defendant was discharged. responsibility to act diligently without any additional legal costs of $250 were paid. conflict of interest “does not reduce simply Although the purchaser’s lawyer did not Negligence proceedings because the client happens to be another agree J was entitled to the additional costs, and insurance lawyer”. he paid it as J insisted it be paid before she The defendant’s solicitors then wrote to would release the e-dealing. Mr L giving notice of an impending claim. Conflict risk arose at J’s conduct in failing to release the Mr L had professional indemnity insurance an earlier point e-dealing before the additional legal costs and notified his insurers. The LCRO upheld the committee’s determi- were paid “demonstrates that [the lawyer] His insurers instructed a lawyer, D, to nation (LCRO 332/2013) but found that the is not familiar with the terms of agreement advise on indemnity issues and to prepare risk of conflict arose at an earlier point. At for sale and purchase,” the committee said. a statement of defence to the claim against the point that the insurer asked for advice Clauses 3.12 and 3.13 of the agreement Mr L. on indemnity more than a negligible risk sets out a specific process to be followed Following D’s advice, the insurer of conflict arose. The LCRO said that: in the event that a dispute arose between declined cover. Unaware that D had pro- “It is not always the case that a lawyer the parties about any additional expenses vided advice to his insurer on indemnity cannot act for an insurer and insured. and damages, the committee said. issues, Mr L instructed D to represent him The distinguishing features of the present Clause 3.13 says the purchaser shall pay in the negligence proceedings and then facts are that [the insurer] had not decided a reasonable “interim amount” to a stake- to challenge the insurer’s decision on whether it would indemnify [Mr L] or not, holder agreed by the parties or nominated indemnity. Mr L advised D that he could and it wanted D to use all the information by the NZLS President. The stakeholder

56 LAWTALK 909 · August 2017 COMPLAINTS

shall lodge the interim amount on inter- that the mortgage had been released, foreign judgments were eventually regis- est-bearing call deposit with a bank in the given there was no mortgagee consent or tered in the New Zealand High Court. Mr joint names of the vendor and purchaser. mortgagee attestation on the insurance E made an application for the caveat to The amount subsequently determined to be settlement documentation. lapse. The company instructed G to take payable shall not be limited to the interim steps to sustain the caveat. amount. No further action on complaint There was to be a hearing of the com- “Any additional expenses and damages As a result, the committee decided to take pany’s application to sustain the caveat must be dealt with in accordance with no further action on the complaint. together with an application by Mr E for the provisions set out in clause 3.13 of the “Wisely, [N] accepts in his submissions a stay of enforcement of the judgments. In agreement for sale and purchase,” the that it would have been better practice for the meantime, there was correspondence committee said. him to ensure that all three trustees were between G and Mr F (counsel for Mr E) The committee was of the view that copied at least by email with all significant regarding a proposed resolution which clause 3.13 was “specifically designed” so correspondence concerning the instruc- would involve consent orders for the as not to delay settlement of a transaction tions,” the committee said. removal of the caveat and registration of in the event that a dispute arose about “However, [N] understood that Mr a charging order in its place. additional expenses and damages. [K] was authorised by his co-trustees to G urged the company in very strong “It is important for lawyers to be familiar instruct him and that Mr [K] was passing terms to agree to such an arrangement, with the terms of agreement for sale and relevant information on to his co-trustees.” but the company would not agree. Despite purchase,” the committee said. They must While the committee accepted that Mr O that, a joint memorandum of counsel was also adhere to them. had valid concerns, it considered that the subsequently filed, in which G agreed with As well as the fine, the committee issues raised could have been promptly Mr F that the company would discontinue ordered J to pay $500 costs. ▪ resolved through courteous discussion. its application for an order to sustain the “Adopting the consumer focus that is caveat and the caveat would be substituted central to the Lawyers Complaints Service with an interim charging order over the Communication function, the committee is satisfied with New Zealand property. [N]’s concession that he has learned a salu- G reported what had happened to the with all tary lesson and will ensure that, in similar company, which immediately terminated circumstances in the future, robust and his retainer. The company engaged alter- clients vital meaningful communication is engaged,” native legal representation and its appli- the committee said. ▪ cations were restored. A lawyer, N, told a standards commit- G gave a number of explanations for his tee that in future he will be “vigilant” in actions to the standards committee. For ensuring that all his clients are copied in Acting contrary to example, he said he considered there was on all correspondence. a real risk with arguing the validity of the The committee was considering a com- client instructions caveat. G further explained that he consid- plaint from another lawyer, Mr O, that N ered the proposal was the most efficient had failed to: A lawyer, G, has been fined $8,000 for way to ensure that a charging order was • Obtain consent from all three trustees acting contrary to his client’s expressed obtained over the property and to avoid a of a family trust he acted for in relation instructions. costs award against the company. to an insurance claim for damage to a In setting the penalty, a lawyers stand- None of his explanations justified his property owned by the trust; and ards committee said that it considered actions, the committee said. “His advice • Failed to consult with Mr O, who was a the conduct to be at the “higher end of may well have been sound but that is not trustee of the trust, regarding a discharge the scale of unsatisfactory conduct and the point. His client chose not to follow of mortgage over the property. deserving of a relatively large fine”. that advice. That is a client’s prerogative.” • Received invalid instructions to act on The client, a company, was involved in The issue, the committee said, was behalf of the trust; litigation in a number of jurisdictions about “clear cut”. G acted “contrary to his cli- • Acted without proper authority as he a business transaction involving a former ent’s express instructions”. He breached was aware that Mr O was a trustee of director and employee, Mr D, and one of rule 13.3 of the Lawyers and Conveyancers the trust and solicitor of the trust. the company’s former clients, Mr E, a New Act (Lawyers: Conduct and Client Care) The other two trustees were a Mr and Mrs Zealand citizen living overseas. Rules 2008. K. N’s instructions “by and large came from The company considered that certain Rule 13.3 states: “Subject to the lawyer’s Mr [K],” the committee noted. shares transferred to Mr E were proceeds overriding duty to the court, a lawyer must “It is critical to the committee’s deter- of Mr D’s breach of his contractual and obtain and follow a client’s instructions mination that Mr [K] assured [N] he was fiduciary duties owed to the company. on significant decisions in respect of the keeping his co-trustees, including Mr [O], The company engaged G to arrange reg- conduct of litigation. Those instructions fully informed.” istration of a caveat against the title to a should be taken after the client is informed The committee also noted that Mr O New Zealand property Mr E owned and to by the lawyer of the nature of the decisions signed the insurance settlement docu- obtain reciprocal recognition of judgments to be made and the consequences of them.” mentation without questioning it, and obtained in a Caribbean court. As well as the fine, the committee he would have been aware, at that time, The caveat was duly registered and the ordered G to pay $2,500 costs. ▪

57 AML/CFT August 2017 · LAWTALK 909

AML/CFT Hang on: help is on its way for lawyers ready to grapple phase two

BY NICK BUTCHER

So it’s about knowing if you’re in about whether they truly need to do Phase two of the AML/CFT Act is clearly going to or if you’re out – that’s the most this,” she says. affect how lawyers and law firms do future business, important thing,” she says. New Zealand Law Society but is it as daunting as it appears? Fiducia offers online DIY AML/ General Manager, Regulatory, Mary Not if you’re organised and have a plan and stick to CFT templates which Ms Piper Ollivier, warns that there are a lot it, is the general consensus from lawyers and financial says will serve as the foundations of so-called compliance experts that advisors who are working with the legal sector to ensure of any regime for businesses in New have popped up over the past six compliance. As phase two approaches, the number of Zealand as a risk assessment and a months. individuals and companies offering advisory services programme. “The best advice is that lawyers grows. “We have boiled down all of the should do their own due diligence Advice is as saturated as a rainy season, yet it pays essential methodologies, formats on any firm they’re intending to to investigate the best option as opposed to accepting and materials that any reporting instruct to assist them to comply the first cab off the rank. A number of advisors are now entity in New Zealand needs to be once the Act comes into force. Make targeting lawyers who want help to navigate through compliant, to put it into an easy- sure you find a firm you can trust, phase two implementation. to-use template that can be down- that has a good reputation and Fiducia has offices in both Tauranga and Auckland. loaded instantly from our website. that they’ll charge appropriately,” The company was established in 2013 by Claire Piper, a “That means you get all of the she says. former lawyer with a background in policy development expert knowledge that our consult- There’s also a danger of outsourc- and commercial negotiation. ants have put together but without ing too much, to the point of not “What we are seeing elsewhere in the financial sector the expensive consultancy fees. You being aware of what’s really going with current reporting entities is that they’re doing too can then build your own capacity on within your own clientele. much. They’re alarmed and it becomes counter-produc- within your legal team.” “Perhaps outsource assistance tive because they’re throwing resources, money and Obviously there is a cost but it’s with your first assessment, but people at a problem they don’t completely understand. a fraction of what an independent do the required work and analysis They start knee capping themselves down the line consultant would burn up, she says. yourself,” she says when the cost and confusion becomes too expensive “An entry level consulting pack- to handle,” she says. age to do a risk assessment and What are lawyers Ms Piper is a member of the Association of Certified programme with the templates is protecting against? Anti-Money Laundering Specialists. about $1,000, whereas an independ- Claire Piper says specifically what ent consultant would normally cost lawyers are protecting themselves Be strategic rather than reactive about $5,000,” she says. from is civil and criminal liability Her best advice to lawyers that are perhaps puzzled by that they’ll face for not fulfilling the the ordeal is to be strategic rather than reactive. Cost the biggest concern requirements of the Act. Claire Piper says all lawyers need to be up to speed And cost appears to be the biggest “It’s not about proving that you’re on section five of the Anti-Money Laundering and concern of law firms and lawyers. not laundering money, it’s about Countering Financing of Terrorism Act 2009 so that “Yes, it’s the cost and the lack of proving that you are fulfilling your they’re 100% sure they are indeed reporting entities. understanding as to whether spend- obligations under the Act to do “I’ve dealt with reporting entities who have been coming this money is necessary. I find everything you can to prevent that plying under the rules of the Act over the past four years, most people want to spend what is from happening,” she says. yet they didn’t need to at all and I’ve saved them $20,000 needed to protect themselves, but “Under the Act as it currently a year by explaining what their actual obligations are. they also get nervous and frustrated stands there is civil liability of up to

58 LAWTALK 909 · August 2017

about $3 million in penalties. There is also criminal liability attached to the directors, the compliance officer and possibly individual staff. That’s what we’ve seen happen overseas.” The first cases are already in the High Court. Ms Piper says these cases before the court are examples of the worst end of the spectrum. “The reputational damage alone could destroy you and your firm,” she says. Lawyers already have some reporting requirements under the Financial Transactions Reporting Act 1996. “But I’m yet to meet a lawyer who has filed a STR – suspicious transaction report – under Mr MacKenzie advises on how money laundering style issues. the Financial Transactions Reporting Act. That means to build compliance programmes. There are compliance programmes the legal industry as a whole are failing their obligations. “It’s going to be difficult to get such as ‘Safe Trac’. It’s an on-line There’s been no enforcement in that area as far as I can bespoke advice. The small town tutorial programme. Staff would sit see. But what the AML/CFT Act is, is a beefed up version sole practitioner in a small town a test to show what they do and of the FTRA, with the spotlight more honed on the legal doesn’t really have the resources don’t know about the AML/CFT Act sector,” she says. to get someone in to give them all phase two. She says if there is money laundering occurring in New of the whistles and bells like a bank He says the important thing is Zealand, it is happening because it is being facilitated could with phase one.” to get an AML/CFT compliance by lawyers and particularly in the property sector. He says there are cheap ser- programme in place and stick to it. “Anecdotally I have dozens of examples of situations vices out there providing what “Make sure the people in your where if lawyers were caught by the AML/CFT Act, there he describes as a cookie cutter business who are responsible for would have been much more information reported to approach, but then for every dollar it know how the regime works. the Police. That’s why the legal industry needs to be a lawyer spends, it’s a dollar they’re Ensure they’re training and telling part of this network. The financial institutions can’t do not taking home. the people who interface with the it themselves. Lawyers and accountants are the leaky “Small practices just don’t have legislation and the firm’s compliance boat. We only have anecdotal evidence of that in New the same resources to invest as obligations that they know what to Zealand but there are plenty of examples internationally banks were able to in phase one. look out for in terms of suspicious in other jurisdictions where the legal profession has There are software services that activities, that they know what they been caught. automatically monitor transactions have to do in terms of identifying “A lot of the time it is just naivety and this Act is and suspicious transactions but a their own clients. Make sure that saying, no more naivety. You can’t ignore it anymore.” sole practitioner might need to think you can show a regular pattern of Ian MacKenzie is a senior associate at about whether that’s appropriate for training. That all starts with getting MinterEllisonRuddWatts. His specialty is banking and them because if the only person that a compliance programme in place finance. has access to a trust account is the and working out how you’ll address sole practitioner, then they proba- and answer all of these questions.” Phase one and two contrast bly don’t need to invest heavily in He says there is a contrast between AML/CFT Act phase automated transaction monitoring Client Privilege one entities and phase two, the area lawyers fall under. software, as it can be done on a There are circumstances when law- “The difference with lawyers as opposed to a lot of manual level,” he says. yers can go beyond client privilege, the phase one reporting entities is that there are a lot to prevent a crime occurring, says of small organisations such as sole practitioners or one Staff training for Ian MacKenzie. or two partner law firms where there is quite a different new lawyers “Lawyers are in a different subset of people that are being caught by this compared For bigger law firms that employ position to some of the phase one to the first time around,” he says. new graduate lawyers, Mr reporting entities though because Is this something people should be more worried MacKenzie says staff training should they do owe duties to keep things about than other areas of their law practice? be a priority. confidential but equally bankers “Probably not, It’s not the thing to forsake all other “This might be the first time new owe duties of confidentiality to their compliance in favour of it but you do have to understand employees at law firms have really clients but have still had to report your obligations and comply,” he says. had to think about how to recognise transactions,” he says.

59 AML/CFT August 2017 · LAWTALK 909

Recently the AML/CFT invoke privilege, the lawyer could be sanctioned for lawyer who doesn’t do conveyanc- Amendment Bill returned from the breach of professional duties. ing or trust work is captured under Select Committee with an altered This may result in a number of applications to the District the legislation. defence to failing to provide a sus- Court for guidance in these borderline cases,” he says. “You’ll learn about what your picious activity report because the Fiducia’s Claire Piper says how phase two affects legal obligations are as a lawyer,” he says. information is subject to privilege. privilege is a grey area for many lawyers. The New Zealand Law Society’s “The Select Committee has rec- “I was speaking to a Queens Counsel who was doing continuing legal education provider ognised there is a conflict between arbitration work in The Hague and she said this exact NZLS CLE Ltd is running a webinar being required to report information issue came up during one of her hearings and no-one on phase two on 4 September which under the AML/CFT regime, and knew how to resolve this problem. Where were the legal will be presented by Henry Brandts- legal privilege requiring lawyers obligations and who held them in terms of reporting Giesen and Neil Russ. not to disclose information,” he says. potential terrorist or criminal activity under the AML/CFT Mr Mackenzie says the Bill gives related legislation in those jurisdictions versus a lawyer’s How do you do a a clear steer that privileged infor- professional responsibility to keep confidentiality for risk assessment? mation should be maintained as their clients. There are court cases happening in Canada Mr Manthel says when AML such by; and the UK about this issue,” she says. Solutions undertakes a phase two • Providing an altered defence for Richard Manthel is a director at AML Solutions, a risk assessment of a law firm, there’s not filing a suspicious activity company set up in 2012 before the legislation came into a range of areas they scrutinise. report where a person reason- force for the phase one entities. He is also a Certified “We’re across a wide range of areas ably believes that the relevant Anti-Money Laundering Specialist. including jurisdictional risk, where information is privileged; AML Solutions has assisted over 650 companies are the customers based and what’s • Opening up lawyers to liability with phase one and says it is the country’s leading and their product. We also explain the where there were reasonable largest AML consultancy firm specialising in helping methodology we use to come to grounds to believe that informa- companies develop and implement their risk assessment our conclusions. These are usually tion subject to a suspicious activ- and compliance programmes, or conduct their statutory reports of about 30 pages,” he says. ity report was privileged, but the AML audits. Richard Manthel doesn’t think a lawyer disclosed it anyway; and “We’ve had many inquiries from both lawyers and template do it yourself assessment • Including a mechanism for the accountants. There are a lot of people motivated to be ahead is the way to go. District Court to resolve disputes of the curve. They all want to know what their obligations “People need engagement. about whether information is are and we can do that to a certain extent, remembering They’ve got to have engagement subject to privilege. that the legislation hasn’t passed yet,” he says. because when the Department of “However, this represents some- Internal Affairs turns up at your thing of a muddying of the waters Practical advice is the focus office and asks the compliance from the first iteration of the Bill, Mr Manthel says AML Solutions is geared to providing officer to talk through the risk where there was no reasonable- practical advice. assessment and you can’t do it, well ness requirement imposed on the “That’s what you need. We educate compliance officers there’s their first red flag,” he says. assessment of what was privileged,” and teams, train their staff and help them understand Mr Manthel says he is aware of he says. some of the complexities of the legislation.” examples where people are unable Mr Mackenzie says the revised He says simply reading the legislation and hoping for to even find their risk assessment draft puts lawyers in a potentially the best isn’t enough. documentation. awkward position in a situation “You’ve got to have someone who has expertise in the “This happened a lot with phase where a suspicious activity report AML legislation, has been around the block, understands one. We’ve seen all of this is why may be required in respect of it and has seen many different programmes and has people need to be educated on information that is only borderline seen how different companies put their compliance phase two. If they don’t understand privileged. programmes into place and how they’ve interpreted it, in my experience they’ll bury the He says in these circumstances, the legislation.” information in the bottom drawer the lawyer will have to determine AML Solutions is holding three phase two seminars and put it down to being too hard whether it is reasonable to invoke in August in Auckland, Wellington and Christchurch. and that’s a dangerous place to be,” privilege. Mr Manthel says these two-hour sessions will answer he says. “If a lawyer elects not to make a many of the questions lawyers and law firms have about He says for the first two years report in these circumstances, but it the AML/CFT Act Phase two. of the first part of the legislation, was subsequently determined that “The Act will be thoroughly explained and then we’ll supervisors were lenient because there were no reasonable grounds take floor questions. So lawyers might have questions it was new and in the education to invoke privilege, the lawyer about legal privilege or who should be considered a high phase. breaches the AML/CFT Act. If the risk client. These questions and answers will be all be “But now we are seeing more and lawyer elects to make a report, but it collated and published on the AML Solutions website,” more companies being warned or was subsequently determined that he says. threatened with prosecution,” he there were reasonable grounds to He says there might be confusion over whether a says. ▪

60 LAWTALK 909 · August 2017 AML/CFT

AML/CFT What Internal Affairs is planning BY NICK BUTCHER

criminals might wish to utilise, such as setting up shell view pose a higher risk of money Law firms throughout the coun- companies or using trust structures to mask laundering laundering or terrorism financing. try must prepare for the Anti- activity,” Kate Reid says. Examples might be firms that deal Money Laundering and Countering “We want to provide essential information to assist with high value customers in New Financing of Terrorism Act 2009 lawyers when they come on board as reporting entities Zealand or internationally. However phase two. – which is likely to be in July 2018.” our approach will also aim to ensure They’ll have to come up with a An education and communications plan is being that lower risk firms are doing the right plan to ensure compliance. This worked on. As with phase one, that’ll include infor- thing and that our risk assessment of includes appointing a compliance mation roadshows to be held throughout the country. their activities is accurate,” she says. officer, assessing the risk of money “It’s very early days in our planning but the roadshows From 1 November this year, the laundering and terrorism financing are likely to happen in the early months of next year Prescribed Transaction Reporting occurring within their business, and could include multiple agency involvement,” Ms regulations come into force. The and putting in place a programme Reid says. DIA says that means if a business of systems and controls to mitigate She says there are a range of educational tools they’re engages in cash transactions of that risk. working on providing to the legal sector to assist them NZ$10,000 or more or if it sends or Phase two also includes account- in setting up their risk assessments and AML/CFT receives funds overseas totalling ants, real estate agents and convey- programmes. NZ$1,000 or above, they’ll need to ancers as reporting entities. “The number of reporting entities DIA supervises will start reporting on that date. The Department of Internal Affairs increase five-fold, so our staff numbers will increase (DIA) is the appointed supervisor accordingly, along with the tools we have available to Will that affect law firms? of compliance and the director of assist business with their programmes,” she says. “It’s highly likely. They’re probably phase two implementation is Kate quite normal amounts of money Reid. DIA a proactive supervisor to be dealing with in relation to The Reserve Bank and the Ms Reid describes the department as a “proactive super- conveyancing work. Reporting Financial Markets Authority are visor”, in that it won’t be waiting for complaints to occur these transactions is managed by also supervisors under phase one of before engaging with the sector. Instead the DIA actively the New Zealand Police Financial the AML/CFT Act. The Department of works with regulated firms to achieve compliance. Intelligence Unit, and Police will be Internal Affairs currently has some “That doesn’t mean we’ll be knocking on lawyers’ producing the relevant guidance. cases before court. doors every five seconds. It means that we will be reg- What we (DIA) will do is make sure What will the DIA be looking at in ularly communicating either through the New Zealand that law firms have processes and relation to lawyers and law firms? Law Society or directly with legal firms. It could also be procedures in place so that they can through conferences or webinars. We’ll work with the do this reporting effectively which Risk assessment legal profession to find out what kinds of communication might include reporting a suspicious of legal sector will work best for them,” she says. transaction,” she says. In preparation for the changes, the Kate Reid says DIA will periodically review law firms’ Ms Reid says during phase one of department is carrying out a risk AML/CFT Act phase two controls and programmes. the AML/CFT Act there were people assessment of the entire legal sector There are two types of review – a desk-based review that dug their heels in and consid- to identify areas which may be vul- of programme documentation, and an on-site inspec- ered the whole process too difficult. nerable to exploitation by criminals. tion which involves assessing how well the AML/CFT “There’s a serious reputation “The areas of business we will be programme is working in practice. Firms will also be risk if you do nothing, along with most interested in are those where required to report annually to the DIA on their risk a range of possible interventions criminals might identify opportu- assessments and AML/CFT programme. and sanctions. But our contact with nities to launder the proceeds of “We’ll be adopting a risk-based approach to engaging the sector to date indicates that the crime. An obvious example is the with reporting entities. It won’t be done every year for great majority of lawyers are keen use of trust accounts, but there are every firm. We are likely to pick a sample and we’ll to comply and we will be working other services that lawyers offer that prioritise firms that engage in activities that in our to support them in that,” she says. ▪

61 AML/CFT

AML/CFT How money can be laundered

BY NICK BUTCHER

A former lawyer who recently completed researching the vulnerability of New Zealand lawyers, accountants and real estate agents to being caught up in money laundering, says it is being done with ease. Ron Pol, principal with amlAssurance, is studying for a political science PhD on policy effectiveness, outcomes and money laundering. For example, he says, take six restaurants located close Photo by Flickr user Thomas Hawk CC-By-NC Flickr user Thomas Hawk by Photo to each other. Five of the restaurants are busy and one  isn’t but has a Maserati parked outside it. The restaurant also has a ‘cash only’ sign displayed in its window. Mr Pol says the slow ‘cash only’ business may be money launderers who can wash replenish their cellar or on-sell the completely legitimate. millions of dollars through the real wine, and then bank the seemingly “However, if it is washing dirty money, it’ll mix the estate sector. ‘clean’ money,” he says. cash from its ‘real’ business through the restaurant’s “Picture yourself as a real estate As it turned out Mr Pol says Police genuine takings, and if the restaurant’s tax returns look agent. You get an overseas inquiry informed him that local drug dealers similar to the busy neighbouring restaurants, no-one about houses available in an excellent had been operating another scheme may be any wiser to the money laundering that is really school zone. As an agent you email that day – selling their product for going on,” he says. back a list of properties for sale. Your festival francs they also intended to He says the ‘cash only’ sign helps explain to the bank prospective buyer says he will buy all exchange, but they were arrested and tax department the otherwise unusually high pro- six properties and millions of dollars before they could do so. portion of cash sales. is transferred electronically into a “The Maserati also had the restaurant’s logo on its lawyer’s trust account. Did you just There is a laundry door. Perhaps it was bought with proceeds of crime deal with a genuine buyer or were involved… and a tax deduction. Or the restaurant trade might be you played,” he says. If you’ve ever wondered where the good in that part of town, with customers requiring a Another example of money laun- term money laundering came from? fast delivery service,” he says. dering, Mr Pol says quite possibly The money trail is often said to lead occurred at a wine and food festival back to the Italian mafia and such What about the property market? a couple of years ago. criminals as Al Capone who allegedly Ron Pol says the Auckland property market is an easy Mr Pol’s friend noticed the oper- purchased cash intensive businesses place for lawyers to be unwittingly exposed to money ation, but it got Ron Pol pondering. like laundromats to mix their illegal laundering. When the day ended his friend profits from prostitution and boot- “Or worse, deemed ‘wilfully blind’ if they don’t ask was exchanging 36 unused festival legged liquor sales with legitimate questions about the origin of funds, if any of dozens of dollars for credit at a winery, and business sales from the laundromats common ‘red-flags’ appear in the transaction. Nor is noticed another customer doing the to hide their illegal profit. it just about cash sales. For most sales with criminal same with about $2,000 of festival “Although the activity was com- funds these days, the funds will come into trust accounts francs, still in its original wrapper monplace in Capone’s time, and from banks, and the research shows that lawyers and from that morning. long before, the modern ‘laundering’ real estate agents are often exposed to more red flags “It got me thinking that if this phrase itself originated during the than banks,” he says. person bought the francs with 1973 Watergate hearings,” Ron Pol And the more inflated the market, the better it is for criminal cash, they could now both says. ▪

62 LAWTALK 909 · August 2017 AML/CFT

PRO BONO Wide range of projects

Environmental for Kensington Swan commitment The firm lauds its commitment to pro bono team “sound environmental practices”, and that extends to its own offices, through waste reduction and energy BY CRAIG STEPHEN usage. Recycling, video-conferencing, duplex printing and energy efficient organisations and initiatives. lighting are among some of the From saving kiwi to boosting the arts, Kensington It works both ways, with staff measures adopted as part of their Swan’s pro bono team likes to dip its toes in a wide gaining from their involvement in environmental responsibility. The firm range of projects. the various projects. aims to have carbon neutral status. Each year the team provides assistance to the Kiwi “Staff can be involved in various Its signature contribution, Trust, which aims to preserve the national icon and help projects and that allows us to be however, says Mr Ireland, is the them to flourish, and the Lake Taupo Protection Trust. involved in areas that we would Auckland Theatre Company. It is also heavily involved in the Auckland Theatre otherwise not have anything “Yes, it is largely Auckland but it’s Company and the Arts Foundation. to do with,” says Fran Barber, a the wider contribution to the arts “If any of our staff have a particular community cause Wellington-based solicitor and that is our focus here, and some- they would like to support then they put a ‘business case’ member of the firm’s pro bono thing we have put large amounts to the committee and we will assess it against our criteria committee. of time and cash into supporting.” in the programme, ie, if the cause fits within one of the “There is a lot of good feeling from The Michael Hill International five categories of community initiatives targeted by our the staff, for example, we do work Violin Competition is another programme and the support requested is something the for Women’s Refuge – there are a arts project that gains the firm’s firm is happy to engage in,” says David Ireland, a partner number of people who are passion- assistance. at Kensington Swan’s Wellington office and co-leader ate about that cause and what we They also support Kaibosh the of the pro bono programme. can do for them. And so they get a Wellington food rescue charity. “Some of the projects we have been involved with are lot of personal satisfaction helping Summer interns do some hands-on of national significance, such as the Kiwi Trust which people who need it. It’s a way of volunteering which gives them is an initiative we have been involved with since even combining an interest with work. some team-bonding skills. before we formalised our programme. “And on the other hand, there are The Kensington Swan pro bono projects that create an opportunity programme also recognises partner Auckland Theatre Company to work in areas of the law on issues and staff involvement in a category “Another huge one we have been involved with is the that would not normally come to of community contribution they call Auckland Theatre Company, providing extensive legal the office, and it broadens staff ’s ‘industry thought leadership’, cap- work when they moved into new premises in Auckland.” knowledge and interests,” she says. turing time spent working on boards Lawyers arranged all the property contract work to across community organisations, ensure the establishment of the company’s new home There is a lot of good charities, and industry support at the ASB Waterfront Theatre in Wynyard Quarter could feeling from the staff, groups, sharing their knowledge take place. for example, we do and expertise. Mr Ireland says about 40 people might be involved work for Women’s Organisations that have ben- in pro bono work during the course of a year, “about a Refuge – there are a efitted from Kensington Swan’s third of our total legal staff ”. number of people who resources under this heading “In becoming admitted to the bar, we recognise we are passionate about include Workplace Savings New have been given a privileged status. With that privilege that cause and what Zealand, the Wellington Standards comes responsibility to use our skills, knowledge and we can do for them. Committee, the Financial Services resources to help those who would otherwise lack legal And so they get a lot Council, and, somewhat intrigu- assistance. It gives us a sense of contribution and pride of personal satisfaction ingly, the Honorary Consul of to assist others in need and support our community.” helping people who Uruguay in Auckland. On top of that staff get stuck into community work need it. It’s a way of The seven-team committee outside the programme itself, and they are encouraged to combining an interest spans the Wellington and Auckland become members of school boards and other community with work offices.▪

63 FOCUS ON

▴ The sun shines through morning mist rising from the bush at Ten Mile Creek, on SH6 between The West Coast Greymouth and Punakaiki

BY KATE GEENTY

your clients, with the highs and regional practice also get to form strong community Working in a small, regional lows that go with that and a lot of ties. Legal skills are in high demand from community centre can be challenging and them become personal friends. You organisations and Mr Smith says getting involved in rewarding on both a personal and work with them and their families the community is good for a lawyer’s practice as well professional level, says Colin Smith, as they grow up, and then their as personally rewarding. a partner at Greymouth firm Hannan children start buying property and “I would say lawyers as a profession, because of & Seddon. getting into business. I’m dealing the suite of skills we have, are in high demand in our Mr Smith says regional practice with sometimes three generations communities. Whether that’s helping community organ- enables a lawyer to become a big of one family.” isations draft charitable trust deeds, helping people set part of the community and also form up organisations or helping govern organisations. I think personal relationships with clients. Community involvement it’s one of the great strengths of the profession that “Having practised here for almost 30 As well as forming close personal we do have a skill set that enables us to provide very years, you travel through life with bonds with clients, lawyers in significantly to our community, and the profession does.

64 I don’t know of a lawyer here on the West Coast who isn’t currently or at some stage in their professional life hasn’t been involved in the community in one way The first lawyers on or another.” Mr Smith was made a Member of the New Zealand the West Coast Order of Merit last year for his community service, but is keen to share the kudos with the people he’s worked Portrait of a Profession says that Sir Arthur alongside through the years. “It is generally those in the Guinness began practice in Greymouth in 1867. higher profile leadership roles that get these awards Sir Arthur arrived in New Zealand with his parents but there are hundreds of other people who are equally in 1852 and was educated at Christ’s College in deserving but never receive recognition. In a way, you Christchurch. He moved into politics, representing are receiving these awards on behalf of all those people the Grey electorate in Parliament for 30 years. on the ground who are actually doing the hard yards He was Speaker of the House of Representatives for their communities.” from 1903 to 1913. The firm he founded in 1867, Jane Duncan, who is a director at Stevens Orchard Whitcombe Guinness and Kitchingham, is still Lawyers’ Westport office, is also heavily involved in the operational in Greymouth, as is Hannan and community, previously as trustee and chairman of local Seddon which was founded in September 1867. social services agency called Homebuilders West Coast Trust and more recently as the chairman of the Buller Photo: Guinness and Kitchingham office, Rugby Union, the first female to hold that position in a Guinness St, Greymouth. Rugby Union in New Zealand.  http://westcoast.recollect.co.nz/nodes/view/19868

65 THE WEST COAST · FOCUS ON... August 2017 · LAWTALK 909

Left: The original conditions since starting a family. Wide ranging work and Greymouth “I left and had a child and then flexible conditions courthouse on initially came back part-time and General practice, rather than specialist work, is the norm Guinness St, opened it’s been so easy because it’s just so in regional towns, and Mr Smith says he’s been involved in 1912 by MP for Grey flexible.” With work just a minute’s in everything from criminal jury trials, through to mining electorate Sir Arthur drive from home and daycare also law, commercial law, company law, employment law, Guinness. just up the road, she’s also able to maritime law, relationship property law, general con- pop out and see her daughter during veyancing and even family law in the days of custody Centre: The new the day if necessary. and access. Greymouth “The thing about working in a small provincial practice courthouse around Attracting new talent is you get a wonderful variety and cross-section of legal the corner. Opened Despite the rewarding nature of work. No two days are the same, you are frequently in 2007, the new regional practice, it is hard to attract challenged with new legal issues and there is no room for building is three times fresh talent. “If only young practi- boredom. You also get the opportunity to work with great larger than the old tioners could see the challenges and colleagues in the profession in the small legal community building, and features rewards that provincial practice such as we have on the West Coast,” he says. two courtrooms. provides. I can’t imagine where Mrs Duncan says the range of legal work she encoun- a city practice would provide the ters keeps life interesting. “You think you’ve seen it all Right: The current same wealth of opportunity in terms and then something comes in the door that you’ve never offices of Whitcombe of the breadth of the law you end dealt with before” Guinness and up dealing with,” says Colin Smith. Kelsey Mundy is a local who returned to the Coast Kitchingham, who He grew up on the West Coast, and after university. Currently working as a solicitor in the have been operating after living in various places both Westport office of Connors Legal, she says regional prac- in Greymouth since in New Zealand and overseas and tice can mean quicker career progression. “It’s good in 1867. trying jobs as diverse as Forestry, the sense of being in a smaller firm your career advances commercial fishing, truck driving, a lot faster than it would anywhere else because you’ve and working in a second-hand store, got a lot of independence and responsibility early on.” he decided to return home. She’s also been able to enjoy flexible working “I was interested in returning

66 LAWTALK 909 · August 2017 FOCUS ON... · THE WEST COAST

to a community I knew, working with people I knew and therefore, isn’t great at self-promotion. “I don’t think and actually giving something back to a region and we are very good at selling ourselves, I guess we don’t community that had been extremely good to me. The feel the need to yell it from the roof tops. We live in drive was towards returning to the Coast, but I knew such a remarkable, untouched part of the country that I had to return with a qualification that would enable constantly astounds us – we forget to tell people about me to do something positive.” So, at the age of 28, he it. We are a vibrant, progressive, supportive community went to Otago University to study law before eventually where accessibility to nature, the outdoors and real life returning to the Coast, where he has been ever since. experiences are right here, literally in your backyard; It was a desire to broaden her legal experience that where the average commute to work is about four led Jane Duncan to the West Coast from Wellington in minutes and parking is free!” ▪ 2010. “I looked at a map of New Zealand and thought to myself where could I live? Then I selected about nine LAWYERS PRACTISING ON THE regional centres, identified the reputable law firms in WEST COAST BY GENDER AND those centres and wrote to them on the off-chance they YEAR OF ADMISSION might have a job.” 4 Mrs Duncan joined Stevens Orchard in its Westport Women office, with the intention of staying a few years. “To be Men honest, I didn’t envisage staying long, long-term, but I enjoyed the lifestyle and the community, got offered a 1 partnership, met my now-husband, got married, bought 5 a property. It’s been a very, very good move and a won- 1972– 1983– 1994– 2005– Total derful opportunity for me.” 1982 2003 2004 2017 She’s currently looking for a solicitor to join her at 14 Stevens Orchard’s Westport office, but is struggling to find someone. “I don’t know why it’s so difficult. There 2 must be people out there who are willing to take the plunge and to share the great experiences and oppor- 3 tunities I have been afforded.” 4 She admits the West Coast is probably too humble 5

67 LEARNING AND DEVELOPMENT August 2017 · LAWTALK 909

LEARNING AND DEVELOPMENT Looking to the Future Family Law Conference keeping lawyers one step ahead

BY SONJA DE FRIEZ property since the last conference including what is needed to change and there is an opportunity to exam- a person’s sex on the birth certificate ine those developments.” via the Family Court. Up-to-the-minute surveillance techniques, trans- At the same time individuals Kirsty Swadling says the con- gender issues and the latest research into actual versus continue to try and put in place ference is a great opportunity to perceived living arrangements all bring a very modern arrangements that they can be recharge the batteries. feel to this year’s NZLS CLE Ltd Family Law Conference sure will be upheld in the future, “One of the really wonderful in Rotorua from 19-20 October. especially in second and subsequent things about the conference is it The gathering is chaired by the inaugural chair of the relationships. re-energises – you come away with Family Law Section, Margaret Casey QC, and coincides Law Commissioner Helen renewed vigour not just about daily with the section’s 20th anniversary. McQueen will be presenting on the practice but higher level issues.” “It’s always a highlight of the year,” says deputy chair Law Commission’s three-year project Rounding off the conference will of the FLS, Kirsty Swadling. “Although we’re a very which is reviewing the law of rela- be Justice Joe Williams, talking on collegial profession we’re spread all over the country tionship property. This is a mammoth tikanga and the Family Court. “I and it’s a time to share with people who live the same project and her conference attend- must admit that sometimes by the experience.” ance will stimulate thinking on the end of such a conference energy It is a conference to learn about the law as it is and issues and provide opportunity for levels can start to wane. I’m really think about what it might become. questions and feedback. looking forward to the last paper of Among the diverse lineup of speakers are Professor Surveillance is a reality of life in this conference, though. His Honour Lawrie Maloney and Bruce Smyth on the effect on the 21st century. Protection from is a compelling speaker and is sure children of shared time parenting, particularly in prying eyes is something which to send delegates away from the high-conflict situations, based on research signalled needs to be considered carefully, conference with some fresh food for at the last conference. whether that’s as an organisation thought and personal challenges.” From New Zealand’s world-renowned longitudinal such as a law firm or as a client who Ms Swadling also hopes there will study in Dunedin comes research which will provide may be under investigation by a be time for reflection on the past insight into the gap between real and perceived patterns former partner. What are the options 20 years. “The FLS should have a of care and living arrangements. available to you for collecting infor- real sense of pride in what it has The Next Generation Study, a subsidiary project of mation about another individual? achieved. We have a specialised the Dunedin Multidisciplinary Health and Development The aptly-named session ‘I’ll be knowledge that comes with it an Study looks at 15-year-olds and what has happened in watching you’ by Dr David Harvey obligation to use this in practical, their lifetimes. and Professor Hank Wolfe, will look professional, personal and policy “We have to be conscious about where things are at surveillance techniques deployed influencing ways,” she says. “The actually going for these children, not just where we by both investigators and parties FLS is strong in this.” She acknowl- believe they are headed,” says Ms Swadling. themselves. edges that it is particularly appro- “The outcomes are suggesting that what we have con- “Moving with the times, we will priate that Margaret Casey QC will ventionally thought about family life and the basis upon be looking at tools available for be chairing the conference this year. which social policies are made, don’t actually reflect the obtaining information, which will The FLS hopes that as many reality that children and young people are living with. also provide reminders on what family lawyers as possible will be We should not be making policies and decisions based we can do to protect ourselves, able to attend the mihi whakatau on a set of assumptions that do not match the reality. including simple steps like changing on the Wednesday evening, which is This has implications not only for issues relating to care the settings on our phone,” says Ms sponsored by FLS, marking the start arrangements but also to maintenance, property and Swadling. of what is set to be a memorable wider social issues.” Kate Scarlet will guide delegates conference. ▪ Issues relating to property also feature strongly in the through the maze of legal gender, conference. “There have been many significant devel- with a paper that seeks to demystify Sonja de Friez is an Auckland- opments in case law relating to trusts and relationship legal considerations around gender, based Engagement Specialist.

68 LAWTALK 909 · August 2017 LEARNING AND DEVELOPMENT

NZLS signs MOU with Open Polytechnic profession, and the Law Society is happy to be work- ▴ The signing of the The New Zealand Law Society ing with the Open Polytechnic to ensure that stu- Memorandum of has signed a Memorandum of dents continue to receive a quality education,” says Understanding in the board Understanding with the Open Tim Jones, New Zealand Law Society Vice President room of the Law Society's Polytechnic over a new qualification (Auckland). National Office. Signing for for legal executives. the Open Polytechnic is Chief From 2018, the Open Polytechnic What if I’m already part-way through Executive Caroline Seelig will offer the New Zealand Diploma the NZLS Legal Executive Diploma? (centre left). Signing for the in Legal Executive Studies. Under Students who have already begun their studies in the New Zealand Law Society is the MoU, the Law Society and the NZLS Legal Executive Diploma, and who will complete President Kathryn Beck (centre Open Polytechnic will work together all six courses in the diploma by the end of 2017, will be right). Accompanying them over the next three years to make awarded this qualification by the Law Society. Students are Cordelia Thomas, Course sure the course meets the expecta- who have already begun their studies in the NZLS Legal Director NZLS Legal Executive tions of the legal profession. Executive Diploma, but will not finish all six papers Diploma (left), and Christine The new diploma will replace by the end of 2017, will transition, with cross-credits, Grice, Executive Director of the New Zealand Law Society into the new qualification, the New Zealand Diploma in the Law Society (right). Legal Executive Diploma which is Legal Executive Studies, through a new tertiary provider currently administered by NZLS when enrolling in 2018. CLE Ltd. That qualification is being The Open Polytech will start its programme via dis- phased out. tance learning from 2018, and will begin taking enrol- “Legal executives play a very ments later this year. Toi Ohomai Institute of Technology important role in the legal also offers a course leading to the new diploma.▪

69 TECHNOLOGY August 2017 · LAWTALK 909

TECHNOLOGY RECENT DEVELOPMENTS Video recruitment tool developed by former lawyer

BY NICK BUTCHER

A new video recruitment tool could potentially change the way some legal sector employers search for the right people to hire. PreviewMe is a concept created by former practising lawyer Johnny Farquhar, and has been running since January this year. He explains there is more to the initiative than simply being a virtual curriculum vitae. “It’s akin to a virtual CV but it’s really picking up and incorporating some of the data and video features that are used in social media.” He says it’s more than just candidates plugging into a potential employment portal. “In a traditional recruitment process candidates generally apply for a job over a month and then the selection might take another month, but technology has changed the modern market in that employers are having to make decisions much quicker. The challenge is to speed up those decisions while ensuring they’re the right ones being made,” he says. Mr Farquhar says by candidates providing a video, employers get a deeper understanding of the potential employee. being fundamental as to whether second in choosing the right employee, but the Culture fit somebody should get a job because PreviewMe style is to take those skills to the forefront. “You’re looking at culture fit and the other skills can be taught in the “Ultimately someone will be making a decision as to communication skills as a stage workplace.” whether you’re going to either be a fit for that organisa- one of the process as opposed to These days the amount of appli- tion and the question is can we dispose of some of that stage two. Normally it’s all about cants for jobs by people with similar assessment earlier in recruitment the process.” the academic grades and most qualifications and skills outweighs financially well-resourced com- the amount of positions available, Employer gets a sense of the panies would use grades as an whether they’re in the legal sector person they might hire arbitrary cut off point in choosing or another industry. It also means that when a job seeker reaches the formal new employees but there’s a shift Mr Farquhar says the so-called interview stage, the employer has already got to know towards good communication skills soft skills have generally come the candidate a little beforehand.

70 LAWTALK 909 · August 2017 TECHNOLOGY

Recent NoticeMATCH checks Developments Recent Developments aims to deaths against provide information on new products and services which are likely to be of interest client database to lawyers. While the New Zealand Law Society only profiles products which it BY CRAIG STEPHEN for some. Essentially our customer is given a csv tem- believes have proven benefits, plate, they load their database onto it and it resides it does not endorse these. The on their own computer. The client then downloads the Law Society also has a policy NoticeMATCH is a “data cleans- software and our death data and that csv file match of not running information in ing company” with a particular against each other. It’s very simple to use,” she says. exchange for an advertising niche: purging databases of “Whether it’s a business with millions of clients, or commitment. deceased clients as the information one with 300 customers in the database we make it becomes publicly available. accessible, user friendly and affordable. We originally The firm’s CEO and founder Sue developed NoticeMATCH for lawyers and trust compa- Skeet says that next to the official nies, but now also work with charities, accountants, ▾ Search results for published government death register it’s the financial enterprises, property managers; there’s a wide death information in single largest file of true deceased ▹ Continued on following page NoticeMATCH. records dating back to 2007, which is available to any business. Ms Skeet says NoticeMATCH cap- tures over 90% of deaths in New Zealand, most within 72 hours of dying Speed is of the essence, especially for uncovering the latest will and finding out the funeral wishes. “NoticeMATCH is a proactive tool which is designed for any business of any size to use. We’re working with all the legal software companies, having already built add-ons

Auckland-based technology, media and IP law firm partners with traditional curriculum Hudson Gavin Martin used PreviewMe during their How well did it work? vitae’s, academic transcripts and summer clerk recruitment drive this year. “You could see the passion in the PreviewMe videos of the preferred “It saved us a lot of time. Being a boutique law firm, applicants. In the past we would sit candidates. we don’t have a dedicated human resources employee,” around and discuss the CVs but this “For us it meant there were far partner Edwin Lim says. time we all logged into PreviewMe less surprises from candidates. We Normally one of the partners at the law firm would and reviewed the applicants in our got a good feel for them by getting receive about 100 emailed curriculum vitaes for summer own time. We took individual notes a more broad based application, clerk positions which would have to be sorted, printed and then we talked together as a particularly with their style and and reviewed before applicants even made a short list. group about which people could how they would potentially fit in There would also be a list of about six technical potentially work here, it turned out at Kensington Swan. The candidates questions to answer. well,” he says. also told us they liked the oppor- “PreviewMe allows us to pre-screen people and get Linley Bell-Galbraith was until tunity to showcase themselves a feel for whether they’d fit into our workplace. This recently in charge of the human through a different channel. They year we asked applicants to explain on video why they resources team at law firm felt it was easier to differentiate wanted to work for HGM. It doesn’t need to be an Oscar Kensington Swan. themselves than if they were just winning performance, we just want to know who you The firm used PreviewMe while providing a written job application,” are and gauge whether or not the person will be a good on a graduate recruitment drive she says. ▪ fit,” Mr Lim says. this year and the HR team provided

71 TECHNOLOGY August 2017 · LAWTALK 909

TECHNOLOGY CYBERSECURITY NoticeMATCH checks deaths against client database Continued from previous page Watch out for range of organisations that can benefit from being proactive and it those scam apps is our desire to make cleansing of data and identifying a deceased as simple as possible.” BY ANGHARAD packages which are then installed The road began in the mid-2000s, O’FLYNN on the phone while discreetly hiding Sue Skeet says, when a friend was behind a fairly bland application. murdered in Christchurch: “a Malicious applications have even 43-year-old accountant who was In March 2017, it was reported tricked users into using free trials randomly attacked”. The following that Google’s application market, only to then charge up to $99 per year an acquaintance took his own Play Store, had 2.8 million mobile week after the ‘trial period’ ends. The life. apps available for download. The apps can also make it very difficult She attended the funerals from Apple App Store is catching up, to cancel the trial and, even if the information gleaned from family with 2.2 million apps available; application is uninstalled, users are and friends, and it made her ponder followed by Windows, Amazon and still charged. how she would know for certain Blackberry’s stores, respectively. Due to the sinister design model about those deaths if she hadn’t At Apple’s last annual develop- of these applications, a half decent been told by others, or had heard er’s conference, the tech company scam app can make anywhere from a rumour. announced it paid out US$70 billion $10,000 to $80,000 in one month. Ms Skeet launched the A Memory to app developers, with 30% of that After the Medium article was Tree website in 2009 “a website to revenue coming from the last year published, it was noticed that verify a death, to leave messages alone; it’s safe to say, app develop- a lot of these scam applications or memories and perhaps order a ment is a very lucrative business. were cleaned out of the App Store. summary of what was published in  medium.com/ However, an article published on However, much like the Greek mon- the death notice”. @johnnylin/how- blogging site Medium in June has ster, Hydra, for every head removed In 2010 Ms Skeet developed the to-make-80-000- exposed what seems to be a large- more re-appear. per-month-on-the- first version of NoticeMATCH for scale problem over both company’s apple-app-store- What to look out for Duncan Cotterill Lawyers. bdb943862e88 stores: scam applications. Unlike A Memory Tree, which The app’s name requires the user to know or suspect What are they? Scam apps have as many keywords a death, NoticeMATCH proactively Scam apps are designed with the in their name as possible. Much like washes all publicly available death sole purpose of making a profit. a Google search, the aim is to get to data against a customer database so They are flooding the app stores the top of the store search results so no death is overlooked. and pop up in search results beside that it’s seen. “We have a unique data set, legitimate applications, making Some real-life examples are capturing all the information out it difficult to tell the difference ‘Protection for iPhone – Mobile Security there, not just from newspaper between what could be a legitimate VPN’ and ‘WEP Password Generator death notices, but various sources and helpful application and a dan- – Wi-Fi Passwords’. If they read like both on and off-line. Being timely, gerous bug. a word jumble, then they ought to thorough and accurate has been key The composure of the applications be avoided. to our success.” varies. Some are easy to spot with The same applies to the product The cost of subscription is based their spelling errors and poorly description. Misspelt phrases like on the database size and frequency phrased five-star reviews. Others “User mus subscriptions to premium of use. “For lawyers, who need to are quite the opposite with some version” are obvious signs that an use it every day, the annual sub- even making their way through app is probably a scam. scription can start from $800,” Ms to the ‘suggested’ apps filters and A lot of scammers use organisa- Skeet says. getting advertisements. tional apps like calendars, duplicate Ms Skeet, who lost her property A very common problem is apps contact removal apps, antivirus in the Christchurch earthquakes, that gather and sell personal infor- and other security applications. moved to Timaru in late 2011, but mation and data on to third parties, Some brazen developers have even spends much of her time between usually advertisers. Others have just been known to masquerade behind Christchurch and Wellington. ▪ been fronts for malware and adware scam-recognising applications.

72 microphone or photos? Likewise, downloads per country, and whether it’s a dead app Who made it? if an antivirus asks for permission that hasn’t been updated, etc. For the more legitimate looking, to access your emails or contacts This is also a great tool to check out the performances but uncommon applications, you probably shouldn’t download it. of legitimate applications. A well-known store might check to see if the developer is a provide an online shopping app, but it could be rubbish single person or a company. Most What to do if you’re and not worth your time. legitimate applications will have unsure of an app’s Of course, not all poorly phrased applications are an official website address that legitimacy scams. However, if someone hasn’t put much effort provides more information about There is a website called Sensor- into the presentation of their product, it might not be the product. Tower that can help with this. It worth downloading. provides data on most applications The moral is that while technology and applications What permissions (parts in both the Play Store and the Apple can make our lives much better, there is always going of your phone) does it Store. to be a downside. want access to? SensorTower provides access to Nowadays we just download things without reading Look at the permissions it asks for all user ratings and its data is easy to the information, assuming all will be fine. If you’re and question it if it doesn’t make interpret. You can see what people unsure about an application, make sure you read the sense. Why would a calendar merger really think of an application; how fine print, and the very fine print, because you can never request access to your camera, it performs, the revenue made, be too sure about what strings might be attached. ▪

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73 LEGAL INFORMATION August 2017 · LAWTALK 909

LEGAL INFORMATION BOOK REVIEW Privacy Law in New importance for those practitioners dealing with employment law or Zealand, 2nd edition other aspects of human relations in the work place. Finally, Judge David Harvey con- General Editors: Stephen siders privacy in the realm of new technologies in the context of the Penk and Rosemary Tobin public access to the court electronic recorders system in order to allow digital access to court documents. REVIEWED BY MARIA POZZA His chapter considers the theoret- ical paradigm surrounding access to information from an array of Donna-Maree Cross’s contribu- perspectives including the public Boasting an impressive list of authors, Privacy Law tion on Surveillance discusses the and other commercial enterprises. in New Zealand is a collection of works which considers importance of privacy within the The book will have much utility some of the fundamental aspects of privacy law. Search and Surveillance Act 2012, for academics and to some extent The editors point out that, since their first edition the Terrorism Suppression Act practitioners wishing to gain an in some six years ago, technology has advanced at such 2002 and the Crimes Act 1961, and depth understanding of the frame- a pace that its impact on issues of privacy has been would be a useful source for both work which underlines privacy law. significant, with additional implications for privacy law. academics and practitioners dealing The 15 essays offer unique perspec- In this respect, the book is a timely development of with this area of law. tives on the issue of privacy and are traditional privacy law which offers some analysis of Bill Hodge and Penk consider certainly a worthwhile read, sure to the impact of technology on modern society. Equally, Privacy and Employment. This satisfy the reader’s curiosity on the contributors also consider deep-rooted tenets within topic is one which will always be topic of privacy law from a range of New Zealand society and how the advancement of of interest to a wider readership and perspectives. ▪ privacy law may change the way we view those tenets. deals with surveillance of employ- Thomson Reuters New Zealand It opens with considerations of the privacy law frame- ees, monitoring of phone calls and Ltd, 978-0-947486-33-4, July 2016, work within New Zealand. The analysis undertaken by emails, outside of work activities, 503 pages, paperback, $148 (GST and Stephen Penk offers a good basis upon which he later drug testing and disclosure of per- delivery not included). considers the Privacy Act 1993 (chapter 3), privacy in sonal information. These consider- other jurisdictions (chapter 5), and the future for issues ations are weighed up against the Dr Maria Pozza  maria.pozza@ of privacy (chapter 15). employee’s legitimate expectations laneneave.co.nz is a solicitor with Khylee Quince considers Maori concepts and privacy, of privacy. This is a critical area of Lane Neave in Christchurch. offering a unique critical legal stance to this topic. Rosemary Tobin considers interactions between the law of privacy and other areas of law, which as practitioners we may not necessarily be exposed to in our regular legal practice. Her analysis includes the law of tort and invasion of privacy (chapter 4), as well as healthcare and privacy law (chapter 7), which provides ROOM AVAILABLE an excellent basis for the lead into Warren Brookfields’ section on privacy and mental health. Vulcan Building Chambers has a medium sized office available to a barrister wishing to share facilities with five other Tobin’s chapter on media regulation provides a good barristers. The well-established chambers are located on the basis of comparison with Natalya King’s chapter on top two levels of the historic Vulcan Buildings in Vulcan Lane Privacy and Reality Television. Finally, her chapter on and enjoy a quality contemporary fit-out. Facilities include: Website, boardroom, library, kitchen, Privacy and Children, which precedes Pauline Tapp’s shower, ultra fast broadband, networked printing and Privacy Issues in the Family Court, is an excellent photocopying and VOIP phone system. comparison of the differing perspectives of privacy The chambers have a dedicated and capable receptionist/ to be found within the institution of family law. The office junior. strategic placement of chapters enables the reader to Please email: [email protected] or phone 09 300 1253 form a good understanding of various topics with the differing perspectives of the authors.

74 LAWTALK 909 · August 2017 CLASSIFIEDS · WILL NOTICES

Russell, Gary Edward  Will notices published in all Law Society publications – including LawTalk, Would any lawyer holding a will for the LawPoints email newsletter, and branch newsletters – are collected on above-named, Hospitality Worker, who died the Law Society website lawsociety.org.nz at News & Communications ▶ at Auckland on 25 August 2016 aged 62 years, Wills and legal jobs. please contact Peter J Tatham, Saunders & Co, Solicitors:  [email protected]  03 349 5111 Hatton, Vanessa Maree  PO Box 16274, Hornby, Christchurch 8441 Will Would any lawyer holding a will or other Deeds/ Schiphorst, Paul Charles Documents for our living client, of Havelock Would any lawyer holding a will for the above- North, (formerly of Auckland), Accountant, named, late of 51B Karewa Parade, Papamoa, born on 1 June 1969, please contact Peter Cato, who died on or about 27 April 2017, please notices Hughes & Associates contact Lesley Carnachan at TS Carnachan,   [email protected] 07 347 1395 Lawyers: Austria, Lolita  PO Box 95, Rotorua 3040, DX JP30021  [email protected] Cheng, King-Yin Lu, Jun  09 523 0283 Fletcher, Res  PO Box 128233, Remuera, Auckland 1541 Fletcher, Louise - nee workman Would any lawyer holding a will for the above-named, late of 1/38 Birdwood Avenue, Tavaga, John Hapi, Joe Papatoetoe, Auckland, born on 1 October 1969, Would any lawyer holding a will for the above- Hatton, Vanessa Maree who died at Auckland on 10 June 2017 aged named, late of 62 Ferndown Ave, Papatoetoe, Lu, Jun 47 years, please contact Stella Chan, Forest Auckland, born on 9 September 1980, who died Harrison Lawyers: McArley, Pamela Anne on 6 August 2016 at Auckland City Hospital,  O’Callaghan, Kathleen [email protected] please contact Ihipera Peters, Wackrow  Parlane, Shaun Thomas 09 308 0080 Williams and Davies Limited:  PO Box 828, Shortland Street, Auckland 1140 Pehi, Papatukiteuru - aka Pehi, James  [email protected]  09 379 5026 Pullar, Suzanne Margaret McArley, Pamela Anne  PO Box 461, Shortland Street, Auckland 1140 DX CP20503 Russell, Gary Edward Would any lawyer holding a will for the above- Schiphorst, Paul Charles named, late of Wellington, Retired, born on 16 Underwood, Edward Charles July 1934, who died on 6 June 2017, please contact Tavaga, John Would any lawyer holding a will for the above- Nikki Canham, Dean & Associates, Solicitors: Underwood, Edward Charles named, late of Maungaturoto, born on 31 May   [email protected] 03 434 5128 1932, who died on 29 June 2017, please contact  Austria, Lolita PO Box 242, Oamaru 9444, DX WA32523 David Rolfe, David Rolfe Law:   Would any lawyer holding a will for the above- O’Callaghan, Kathleen [email protected] 09 423 8045  PO Box 20, Wellsford 0940 named, late of Broadlands Road, Reporoa, who Would any lawyer holding a will for the above- died on 15 May 2017, please contact Jill Crowe, named, late of Flat 1, 35 Marion Street, Upper Rodgers & Co Lawyers: Hutt, Retail Shop Assistant, who died on 9 June  [email protected]  07 349 6393 2017 please contact Main Street Legal Ltd:  PO Box 1203, Rotorua, DX JP30034  [email protected]  Cheng, King-Yin 04 527 9727  PO Box 40-457, Upper Hutt, DX RP44011 Would any lawyer holding a will for the above- named, lately of Auckland, who died on 9 May Parlane, Shaun Thomas OLA ISOBEL DOWNEY 2017 in Auckland, please contact Fei Chan, Chan Would any lawyer who has acted for or who & Co Legal: holds a will for the above-named, late of Known as the daughter of Olive  [email protected]  09 520 2188 Auckland, who died on 18 June 2017, please  165 Great South Rd, Greenlane, Auckland contact Andrew Lemalu, Andrew Lemalu Law: Isobel Humphries who passed 1051, DX CP33503  [email protected] away on 14 September 1965.  Fletcher, Rex 09 579 0045 Seeking any information regarding  PO Box 11-321, Ellerslie, Auckland 1542 Fletcher, Louise - nee Workman the whereabouts of Ola Isobel Pehi, Papatukiteuru - aka Would any lawyer holding a will for either of Downey who is the successor the above-named, late of 34 Old Taupiri Road, Pehi, James of Olive Isobel Humphries who Ngaruawahia, Rex who died in 2004, Louise who Would any lawyer holding a will for the above- owned property at 989 Kuhutara died in 2009, please contact Eugene Raika, The named, late of 10 Swallow Crescent, Norlane, Road, Featherston, South Law Lounge: Australia, Master Painter, born on 10 February  [email protected] 1929, who died on 7 June 2009, please contact Wairarapa District in 1965.  Paul Connolly, Stace Hammond Lawyers: 09 551 6120 Please contact Raymond Qu  PO Box 33 241, Takapuna 0740  [email protected]  09 307 7909  PO Box 106-376, Auckland 1143 at Darroch Limited Hapi, Joe 03 3439135 or email Pullar, Suzanne Margaret Would any lawyer holding a will for the above- [email protected] named, late of Matamata Country Lodge, Would any lawyer holding a will for the above- Matamata, Labourer, born on 13 May 1931, who named, late of Eyrewell, Part time Tutor, who died died on 18 October 2016, please contact Paul on 20 December 2016 at Christchurch, please This notice is in regard to satisfying the Whitmarsh, Whitmarsh Law: contact Vicki Brown, Helmore Stewart Lawyers: provisions of Section 40 Public Works  [email protected]  04 550 4053  [email protected] Act 1981  PO Box 30-852, Lower Hutt 5040  03 311 8008  PO Box 44, Rangiora 7440

75 LEGAL JOBS · CLASSIFIEDS August 2017 · LAWTALK 909

GROVE DARLOW TENANCY ADJUDICATOR & PARTNERS A Tenancy Adjudicator is required for the Tenancy Tribunal SOLICITOR – COMMERCIAL LITIGATION in the Nelson & Blenheim area. This is a part time position Auckland CBD with a standard commitment of one to two days per week. Two or more days a week may be available.

For almost 40 years our firm has provided specialist The successful applicant is likely to have legal experience or legal advice and counsel in commercial litigation and experience in adjudication. Knowledge of and experience commercial transactions. in unit titles may also be relevant, but not essential. Applicants will need to be able to relate well to the many Our lawyers are all highly experienced, providing different people who come to the Tribunal, have an interest litigation and strategic advice to our commercial clients in efficient dispute resolution, the ability to conduct a nationally and internationally. We have a proud record of hearing and have a strong sense of fairness. They will be robust and effective litigation and commercial practice. sensitive to cultural factors that may affect the resolution We offer candidates an exceptional working of a dispute, and demonstrate efficient work habits and environment, autonomy, and an ability to spend time an ability to make clear, logical decisions. Good oral and on their feet. written communication skills are essential, as is computer We are looking for a solicitor with between 2-3 PQE literacy. in litigation who has an aptitude for advocacy and is Application forms can be downloaded at: http://www. wishing to develop their own litigation practice. justice.govt.nz/statutory-vacancies/. For more information If you: about the position, contact Tania Togiatama, PA to Principal » have an excellent academic record; Tenancy Adjudicator – email: [email protected]. » have achieved excellence in mooting; nz or phone (07) 921 7478. » wish to further your skills as an advocate; » are interested in working on a wide range of Applications for the position close at 5.00pm, Thursday commercial litigation. 17 August 2017.

Send your academic record and CV to: Maree Cornish – Practice Manager Grove Darlow & Partners [email protected]

Solicitor Required

We are a growing Law Firm based in Auckland City with a large Asian client base. We are looking for lawyers with a minimum of one to Crown Prosecutor two years PQE in general practice, such as residential & commercial conveyancing, business sale & purchase, We seek a practitioner with 2 years or more post qualification Immigration, family, trust, and civil litigation. experience to carry out prosecution work including judge alone and jury trials in the Timaru, Oamaru and Ashburton Fluency in any second language will be highly valued. Courts. There will also be the ability to practise in other areas of litigation including family, employment, civil and as an ACC Please forward us your application with a Reviewer if desired. cover letter and CV to [email protected] The successful applicant will have the ability to undertake Applications close 20 August 2017 Judge Alone trials immediately. Jury trial experience is not essential but would be beneficial. The role will carry with it significant responsibility given your involvement in a small prosecution team. The breadth of work gives the opportunity for rapid career advancement. Chambers Opportunity Timaru is ideally positioned between Christchurch and Dunedin. Timaru offers an excellent climate and relaxed and A prime position is available in the well established, affordable lifestyle with easy access to dozens of recreational serviced Southern Cross Chambers. Excellent and leisure pursuits. location for all Courts, corner Victoria and High Streets, Auckland. Serviced with website, library, Confidential applications and expressions of interest meeting room, kitchen, photocopiers, scanning. should be directed to Andrew McRae by Wednesday 23 August 2017 Enquiries please, in confidence, to:  [email protected] ▶ Confidential Advertiser No. 17-6 (c\- Christine Wilson)  (03) 687 8004 Email: [email protected]

76 WE’VE GOT OUR CONNECTIONS

The London recruitment market is thriving and is offering New Zealand lawyers exciting career opportunities with global and magic circle law firms. Please note: UK firms will usually discount New Zealand PQE by 2 years due to the UK training contract Frieda has recently met with our connections in Europe period. On that basis, the PQE and the firms are particularly interested in lawyers with outlined in our vacancies below are PQE levels these clients at least 3 years of top-tier post-admission experience. would expect from NZ or Australian qualified lawyers.

Competition Associate 3-6 PQE Structured Finance Lawyers 3+ PQE Our client is seeking a lawyer to join their competition team. In We have multiple opportunities at all levels available in the this role, you will provide advice on a range of competition top-tier. For these roles, the successful candidates must have a matters including behavioural investigations, competition working knowledge of banking and capital markets products, a litigation, merger clearance, regulatory matters, and WTO and genuine interest in tackling new areas and the ability to work trade. Hands-on competition experience is essential. To be well in a team environment. Ideally, you will also have a successful in this role, you will need to be self-motivated and background in financial structuring, however experience is not ready to hit the ground running! essential provided you can meet all of the other requirements. Intellectual Property Litigation Lawyer 3-6 PQE Financial Regulation Group Associates 4+ PQE If you are a first-class litigation lawyer with strong intellectual We are looking for strong finance lawyers for multiple top-tier property experience, this role might be perfect for you. Our opportunities. You will be responsible for the provision of advice client is seeking a lawyer with experience that includes patents, on some of the most sensitive and reputation-threatening copyright, designs and databases, trademarks and passing off, regulatory issues. You will be exposed to varied and challenging domain names, plant breeders’ rights, collective licensing work while having the opportunity to work with some of the most disputes and comparative advertising. Ideally, you will have a highly-regarded lawyers in the industry. The ideal candidates background in life sciences and pharmaceutical work, including will need to have the ability to provide advice on a broad range a degree in, for example, chemistry, biology or natural sciences. of non-contentious regulatory matters. Restructuring Associate 3+ PQE Litigation Associate 4-6 PQE Our top-tier client is a leading firm seeking a junior to mid-level We are seeking to identify a lawyer that can demonstrate a lawyer with a strong background in a broad range of restructuring broad range of litigation experience and has a strong desire to matters. It is essential that you have acquired your experience at specialise in litigation. Ideally, you will also have arbitration a law firm recognised for its restructuring practice. You will also experience although that is not essential. You will be joining a need to be flexible, a fast learner, and be confident dealing with team that provides advice to internationally leading companies, multiple jurisdictions. financial institutions and governments on some of the most challenging transactions and assignments.

Our clients are actively seeking first-class Commonwealth qualified lawyers. All applicants must have: Legal experience gained in a top-tier law firm At least 3 years of post-admission experience LEGAL JOBS · CLASSIFIEDS August 2017 · LAWTALK 909 To speak with a member of our team CPD Calendar Phone: 0800 333 111

PROGRAMME PRESENTERS CONTENT WHERE WHEN CIVIL LITIGATION

INTRODUCTION TO CIVIL Roderick Joyce QSO QC This workshop is an excellent opportunity for recently Wellington 16-17 Oct LITIGATION SKILLS Sandra Grant admitted practitioners to develop practical skills in civil Auckland 2 27-28 Nov Nikki Pender litigation in an intense small-group workshop. You will learn 9 CPD hours Paul Radich QC how to handle a single fi le from beginning to end, be able to identify and understand the various steps in the process, develop the practical skills you need to handle this and a range of other litigation fi les, competently and confi dently.

MEDIATION FOR Virginia Goldblatt This workshop builds on the NZLS CLE workshop Mediation Auckland 17-19 Nov TGT Legal, one of New Zealand’s pre-eminent boutique law firms, seeks expressions of interest from dynamic lawyers 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 with a passion and aptitude to work at the cutting edge of trust, estate and relationship property law with and around like a mediator – not a lawyer. It provides further opportunity like minded people. 15 CPD hours to observe a civil mediation, to dissect it and to practise mediation skills.

The firm is currently looking for exceptional candidates of not less than 2 years post admission experience to fill COMPANY, COMMERCIAL AND TAX multiple opportunities. TAX CONFERENCE Chair: The annual NZLS CLE Tax Conference will o er business Auckland 21 Sep Vivian Cheng sessions focused on the most relevant tax developments 6.5 CPD hours and issues, designed to ensure you keep abreast of tax Solicitor Litigation solicitor developments a ecting your clients.

You will conduct research, prepare written advice, Litigation is a growing field within the practice and CRIMINAL opinions and legal documentation. to that end the firm is looking to build a strong team DUTY LAWYER TRAINING Duty lawyers are critical to the smooth running of a District Various Aug-Nov around its litigation partner, Ross Knight. Local Presenters There will be immediate opportunities for direct PROGRAMME Court list. Here is a way to gain more of the knowledge and skills you need to join this important group. This workshop is client exposure and relationship building, including Ross is one of New Zealand’s leading trust and 11* CPD hours made up of several parts. working with: relationship property litigators and acts on complex *CPD hours may vary, see website cases involving significant assets, both in New » Employer sponsored superannuation schemes, EVIDENCE ACT Tiana Epati Questions concerning the admissibility of evidence are Christchurch 18 Sep Zealand and internationally. He leads the litigation regulatory and other issues relating to the POTPOURRI FOR Fiona Guy Kidd central to the administration of criminal justice. This seminar Wellington 19 Sep team at TGT Legal supported by a top team of trust CRIMINAL LAWYERS will include consideration of: prior statements; propensity operation of those trust based schemes evidence; judicial directions as to relevance and use of Auckland 20 Sep law specialists. Webinar 19 Sep » Private clients, to assist them to achieve their 2.5 CPD hours certain evidence; developments in emerging case law; and recent amendments to the Act. goals for the creation and preservation of The firm is looking for a lawyer to work with Ross with 1.5 CPD hours wealth and succession planning a focus on relationship property and trust law. » Charities, to provide advice on governance and FAMILY Key requirements: related matters » An aptitude and interest in complex relationship FAMILY LAW Chair: This conference has a superb line-up of international and Rotorua 19-20 Oct CONFERENCE Margaret Casey QC national speakers and an outstanding educational and social Key requirements: property and trust work programme which promises to provoke, stimulate, challenge, 13 CPD hours educate, inspire and entertain. Whether you are a practicing » Excellent academic record » Excellent academic record family lawyer, an academic or a judge, this is a not-to-be » Strong drafting / written skills » Strong drafting / written skills missed opportunity to update, reinvigorate and enjoy the collegiality of friends. » Open style and confident disposition » Superior communication skills » Prior trust law experience is advantageous » Open style and confident disposition 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.

With talented lawyers, outstanding clients and challenging legal work, TGT Legal offers every opportunity for the GENERAL development of specialist skills and career progression. PRIVACY – IS YOUR Charlotte Walker This webinar will take a practical approach and include an Webinar 22 Aug FIRM MEETING ITS outline of establishing and maintaining a privacy framework If you would like to learn more or apply for either of these roles please contact Christian OBLIGATIONS? for your organisation, consideration of legal obligations and provide practical advice for dealing with privacy issues Brown at Robert Walters on (09) 374 7345 or [email protected]. 1 CPD hours coupled with what to do if it does go wrong.

Robert Walters reviews all CV's manually and you will be contacted if your skills and experience meet the requirements of this client. Robert Walters is an international recruitment consultancy specialising in the sourcing of Executive and General Management, Legal, HR, Procurement & Supply Chain, Finance, Information Technology, and Sales & Marketing staff for permanent, contract or temporary employment. Please visit our website to view other opportunities we are recruiting.

78 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 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.

COMPANY, COMMERCIAL AND TAX

TAX CONFERENCE Chair: The annual NZLS CLE Tax Conference will o er business Auckland 21 Sep Vivian Cheng sessions focused on the most relevant tax developments 6.5 CPD hours and issues, designed to ensure you keep abreast of tax developments a ecting your clients.

CRIMINAL

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

EVIDENCE ACT Tiana Epati Questions concerning the admissibility of evidence are Christchurch 18 Sep POTPOURRI FOR Fiona Guy Kidd central to the administration of criminal justice. This seminar Wellington 19 Sep CRIMINAL LAWYERS will include consideration of: prior statements; propensity evidence; judicial directions as to relevance and use of Auckland 20 Sep Webinar 19 Sep 2.5 CPD hours certain evidence; developments in emerging case law; and recent amendments to the Act. 1.5 CPD hours

FAMILY

FAMILY LAW Chair: This conference has a superb line-up of international and Rotorua 19-20 Oct CONFERENCE Margaret Casey QC national speakers and an outstanding educational and social programme which promises to provoke, stimulate, challenge, 13 CPD hours educate, inspire and entertain. Whether you are a practicing family lawyer, an academic or a judge, this is a not-to-be missed opportunity to update, reinvigorate and enjoy the collegiality of friends.

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

PRIVACY – IS YOUR Charlotte Walker This webinar will take a practical approach and include an Webinar 22 Aug FIRM MEETING ITS outline of establishing and maintaining a privacy framework OBLIGATIONS? for your organisation, consideration of legal obligations and provide practical advice for dealing with privacy issues 1 CPD hours coupled with what to do if it does go wrong.

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

PROGRAMME PRESENTERS CONTENT WHERE WHEN PROGRAMME PRESENTERS CONTENT WHERE WHEN GENERAL PRACTICE AND PROFESSIONAL SKILLS

HEALTH AND SAFETY Greg Cain Over a year on from the introduction of the Health and Webinar 29 Aug MEDIATION PART B – Virginia Goldblatt This workshop has a special focus on, and is tailored to, the Wellington 25-27 Aug UPDATE Michael Hargreaves Safety at Work Act what conclusions can we draw? This EDUCATION DISPUTES David Patten specifi c kinds of disputes that are typically encountered in webinar will discuss where these changes are taking us and the education sector. Participants will practise skills, and 1.5 CPD hours the practical implications for your clients. Topics will include 15 CPD hours complete an assessment exercise, leading to a certifi cate of enforceable undertakings and your obligations, the approach achievement. that WorkSafe New Zealand is taking, emergent themes and how things are likely to develop, as well as a review of decisions from Australia and sentencing context from the TRUST ACCOUNT Philip Strang How do you keep a trust account in good order? This practical Auckland 3 20 Sep UK. ADMINISTRATOR training is for new trust accounting sta , legal executives, Hamilton 21 Sep legal secretaries and o ce managers. AML/CFT – PHASE 2 Henry Brandts-Giesen Phase 2 of the Anti-Money Laundering and Countering Webinar 4 Sep 4 CPD hours Neil Russ Financing of Terrorism Act 2009 is scheduled to be in place 1.5 CPD hours by July this year and extends the coverage of the legislation to include real estate agents, conveyancers, many lawyers, and accountants in addition to other groups. This webinar PERSUASIVE LEGAL John Adams Successful writing is persuasive. This workshop will show Christchurch 3 Oct will take a practical approach in helping you identify if these WRITING Simon Cunliff e you how to structure your document, manage tone, achieve Wellington 4 Oct obligations apply to you and, if this is the case, provide Jane Hart maximum impact and avoid common writing faults and much advice aimed at ensuring that you are able to comply with Auckland 5 Oct 6.5 CPD hours more. the requirements of the legislation. CAPACITY – WHAT YOU Prof Kate Diesfeld The levels of capacity required for entering into an enduring Webinar 12 Sep NEED TO KNOW Dr Mark Fisher power of attorney, making a will or, a complex transaction LAWYER AS NEGOTIATOR Jane Chart Negotiation is a vital skill for every lawyer and improved Auckland 15-16 Nov Robb Newberry are di erent. Following on from a well-received session at negotiation skills can help avoid unnecessary litigation and the Elder Law Intensive in May this year, the presenters will 1.5 CPD hours produce better settlements more e ciently. Attend this explore these varying levels of capacity and provide practical 11.5 CPD hours workshop to gain an understanding of the risks and benefi ts advice and tools and advice to assist you in your practice. of various negotiation strategies and techniques. Registrations open 8 August.

FOCUS ON MENTAL Chair: Mental health advocacy is a unique aspect of legal Auckland 14 Sep PROPERTY HEALTH IN THE COURTS Her Honour Judge practice. Lawyers with mental health clients must know Wellington 15 Sep Pippa Sinclair and think about their duties to their clients, as they do in RESIDENTIAL PROPERTY Lauchie Griffi n This small group intensive workshop guides you step-by- Hamilton 14-15 Aug the adversarial system, but also preserve the therapeutic Live webstream 15 Sep 6.5 CPD hours TRANSACTIONS Nick Kearney step through three transactions: a stand-alone fee simple Auckland 28-29 Aug relationship those clients have with their clinicians – and Michelle Moore residential dwelling, a cross-lease dwelling and a unit title this makes the task di erent and more di cult. This day 13 CPD hours Duncan Terris property. has a practical focus and is designed to enhance advocates’ understanding of the legal and medical issues in this area as well as latest developments. WORKINGS OF THE Assoc Prof David This webinar will focus on key themes emerging from case Webinar 30 Aug MEDIATION FOR Virginia Goldblatt Mediation knowledge and skills are an increasingly important Wellington 13-15 Oct PROPERTY LAW ACT Grinlinton law, and the practical implications fl owing from these LAWYERS PART A – plus either adjunct to legal practice. Many more clients are taking disputes Peter Nolan developments, including property contracts: the creation UNDERSTANDING David Patten or to mediation (because it works) and the more that legal 1.5 CPD hours of leases, lease covenants; developments in documenting MEDIATION Geoff Sharp advisers know about how it works the better. In addition, and enforcing mortgages and recent judicial decisions. This practice as a mediator extends the service that lawyers can webinar is based on the successful NZLS CLE Auckland In 14.5 CPD hours o er the public. Short seminar Workings of the Property Law Act, held in March 2017.

PRACTICE AND PROFESSIONAL SKILLS CHANGING LANDSCAPES Chair: An update of the latest issues and developments in the Christchurch 6 Sep – RURAL LAW IN ACTION Sue Anderson rural law environment including water quality issues, equity Hamilton 7 Sep STEPPING UP – Director: All lawyers wishing to practise on their own account whether Auckland 3 9-11 Nov partnerships, Fonterra, bank securities, keeping the farm FOUNDATION FOR Stuart Spicer alone, in partnership, in an incorporated practice or as a Live webstream 7 Sep 6 CPD hours intact, Overseas Investment O ce, Emissions Trading PRACTISING ON OWN barrister, will be required to complete this course. (Note: Scheme & forestry, Health & Safety and employment. ACCOUNT 2017 From 1 October 2012 all lawyers applying to be barristers sole are required to complete Stepping Up). Developed with the 18.5 CPD hours support of the New Zealand Law Foundation. IN SHORT

TAKING CLIENT Simon Jeff erson QC Whatever the specifi c instructions clients give their Auckland 31 Aug TRUST ACCOUNT To become a Trust Account Supervisor you must pass Wellington 14 Sep Philip Strang INSTRUCTIONS – WHAT Mark Vickerman lawyers prudence dictates that inquiries must be made to SUPERVISOR TRAINING assessments set by the Law Society (reg 19 Lawyers and Live webstream 31 Aug Ben Potaka Auckland 14 Nov LURKS BENEATH THE ensure that the object of the instructions meets clients’ PROGRAMME Conveyancers Act (Trust Account Regulations) 2008). The SURFACE WAITING TO overall expectations. That requires an assessment of training programme consists of 40-50 hours of Christchurch 23 Nov BITE whether they are in a relationship (as that term is defi ned self-study learning modules to help you prepare for the 7.5 CPD hours but not commonly understood) and the consequences assessment day. 2 CPD hours that fl ow from that, whether their trust may be subject to a non-benefi ciary claim in equity, under the Property LEGAL EXECUTIVES Chair: A sell-out in 2015, the biennial “must attend” conference for Wellington 14-15 Aug (Relationships) Act or on divorce, is their will immune from CONFERENCE Rebecca Smith all legal executives. The conference recognises the specialist statutory claims. This seminar will identify why it is not role of legal executives in legal practice with a programme enough to take instructions in isolation but to dig deeper. 13 CPD hours designed to be directly relevant to the day-to-day work carried out by the majority of legal executives. CROSS LEASE – Joanne Chilvers Documentation of cross lease title and defective issues Auckland 5 Sep DEFECTIVE TITLE AND Anthea Coombes with them can be quite problematic. This presentation Live webstream 5 Sep ISSUES will highlight what to look out for, how to go about fi xing issues, obtaining lessor’s consent, repairs, alterations and 2 CPD hours additions to buildings as well as requisitions under the ADLSI Agreement for Sale and Purchase.

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

PROGRAMME PRESENTERS CONTENT WHERE WHEN PROGRAMME PRESENTERS CONTENT WHERE WHEN GENERAL PRACTICE AND PROFESSIONAL SKILLS

For FULL CPD calendar see www.lawyerseducation.co.nz For FULL CPD calendar see www.lawyerseducation.co.nz LIFESTYLE August 2017 · LAWTALK 909

the rules of the event. LIFESTYLE But it wasn’t a straightforward challenge as New Zealand wanted the race to be between traditional 27-metre long mono hulls, while the Americans insisted on racing the The America’s Cup and usual 12-metre long boats. Things turned hostile and both parties lawyered up. its colourful relationship The New York Supreme Court, which oversees the Deed of Gift, ruled that both teams had to settle with the courtroom their score on the water using their preferred boat. The outcome was predictable BY NICK BUTCHER with the faster and lighter 12-metre long catamaran of Conner’s team was unfair because he should have winning the two races convincingly. The America’s Cup is not only the oldest interna- been racing against just one boat. Sir Michael wasn’t put off and tional sporting trophy, it’s an event that has been fought That incident perhaps set the stage went back to the Court, claiming with vigour both on the water and in the courtroom. for the many courtroom battles that the race was not the friendly com- Who would have predicted that a boat race which have dotted the history of the event. petition between foreign countries occurred in 1851 around the Isle of Wight, just off Until 1983, the America’s Cup as expressed in the Deed of Gift. England’s south coast, would become a colossal event, really was the domain of the The Supreme Court agreed and owned by the stupendously wealthy, yet watched closely Americans, as they’d held it for 132 awarded New Zealand the Cup. by those who own little more than a dinghy-sized begin- years, but then Australian multimil- However, that glory was short lived ners boat or don’t even sail? lionaire businessman Alan Bond’s – San Diego appealed the decision But the sea-salted routes of the America’s Cup were Australia II won it with the help of and it was overturned. always saturated in wealth. The inaugural winners – an innovative winged keel. This is New Zealand would have to wait New York businessmen – initially actually sailed their the point at which people with bank until 1995 before it won the world’s schooner, aptly called America, across the Atlantic Ocean accounts as large as a small island greatest yachting trophy when the to represent the United States at another event, the nation’s annual export earnings team finally beat Conner on the World’s Fair in England. would start to dominate and dictate water in Black Magic. The New As they say, when in Rome, do as the Romans do, and how the event would be run. Zealand team was managed by Sir so that schooner was entered in a race around the Isle In 1987, New Zealand tried to Peter Blake who was murdered by of Wight for a trophy called the £100 Cup. qualify and take on Australia with The radically-designed America from the New York KZ7, nicknamed ‘plastic fantastic’ Yacht Club crossed the finish line ahead of the Royal because it was constructed of fibre Yacht Squadron’s boat, going some way to decapitating glass instead of the heavier alumin- Great Britain’s reputation as the world’s undisputed ium. The boat was super quick and maritime power. the skipper of Stars & Stripes, the hot- Fast forward 166 years and the Auld Mug named after headed American Dennis Conner the schooner America, is worth so much more and the accused New Zealand of cheating saga on the water has often moved to the dry confounds and threatened court action if KZ7 of the courthouse. won. However, Conner wrested the And that is how it has always been, a tradition and Cup from the Australian’s mantel- attitude consummated after that first race when Queen piece, while representing the San Victoria quipped “Who came second?” Diego Yacht Club, and possible court “Your Majesty, there is no second,” said one of her confrontation was averted. attendants. Sir Michael Fay, a multimillionaire New Zealand banker desperately Legal squabbles are nothing new … wanted the Cup because wealthy The first challenge to the Cup was made by the British people love to own shiny things. He railway tycoon James Ashbury in 1870, nearly 20 years issued a challenge from the Mercury after the America took the Auld Mug (it’s always been Bay Boating Club to the San Diego called that). Yacht Club for a follow-up event to be After winning a regatta, Ashbury took on a fleet held in 1988, the 27th America’s Cup. from the New York Yacht Club for the Cup and lost. The challenge was made under an He mounted a second challenge in 1871 and again lost, interpretation of the regatta’s Deed prompting him to consult his lawyers as he believed it of Gift, the legal document that sets

82 LAWTALK 909 · August 2017 LIFESTYLE

pirates in the Amazon in 2001, just Because of this, the 33rd America’s ▴ Columbia, of the New York Yacht Club, and a year after defending the Cup in Cup had a good dose of expensive Shamrock, of the Royal Ulster Yacht Club, Auckland. legal controversy before it hit the compete in the 10th challenge for the America's water in 2010. Cup, held in New York Harbour in 1899 Other significant Alinghi’s owner, billionaire  Photo from US Library of Congress court cases Ernesto Bertarelli, dictated the www.loc.gov/pictures/item/det1994019138/PP/ Much of the winning New Zealand rules and accepted a challenge team skippered by Sir Russell Coutts from a largely unknown Spanish go into that, other than to say that the Jimmy Spithill- had defected to the successful Swiss club. Another billionaire, Larry led Oracle team made the comeback of the century to team, Alinghi, the first European Ellison, who owns Oracle Team win 9-8. team to win the trophy. USA objected, and so the courtroom The 35th America’s Cup in Bermuda was New Zealand’s Alinghi beat the New Zealanders drama began. chance for redemption. And they grasped the opportu- led by Dean Barker in 2003 and In the end, the collateral from nity, winning the Auld Mug, 7-1. So far there has been defended it at the 32nd regatta in the court battle cost about NZ$17 no talk of a legal challenge such as to why New Zealand Valencia, Spain in 2007. million and Larry Ellison’s Oracle had cyclists on board doing the grinding with their legs One of the questionable features was declared Challenger of Record. that is traditionally done by hand. of the America’s Cup is that the Oracle went on to lift the Cup on The moment helmsman Peter Burling steered the holder can choose the location of the behalf of the Golden Gate Yacht Club. New Zealand boat across the line to win the America’s event and dictate the protocol of the That’s how far billionaires will go Cup, the Royal New Zealand Yacht Squadron accepted event, through their interpretation to put a unique silver mug on their a challenge from Luna Rossa’s Circolo della Vela Sicillia of the Deed of Gift. shelves. for the 36th America’s Cup. Most people know the outcome Elsewhere in this issue (page 24) John Walton looks ◂ The 'Auld mug', circa 1900–1915. of the 2013 America’s Cup in San at some of the land-based organisation that now needs  Photo from US Library of Congress Francisco so there’s little need to to begin. ▪ www.loc.gov/pictures/item/det1994012633/PP/

83 LIFESTYLE TRAVEL it’s like being in a crowded factory, full of tourists doing what you are doing. Taking a lunch or dinner cruise on a paddle steamer New Orleans on the Mississippi River is popular. The boats are copies of the originals and the food is ordinary, but the view from the river and the commentary is interesting. Do Good times and better times go to the visitors’ centre of the site of the 1812 Battle of New Orleans if you can. The centre’s helpfully provided by the National Parks BY JOHN Service, and it’s free, which is why it’s included in all BISHOP the tours of the area. Taking a tram or walking along the waterfront is House, Big Ben and Tower Bridge. pleasant. You’ll see the Joan of Arc statue (given by the New Orleans is one of those Here are ten standard things for government of France), buy pralines, and see the luxury places that everyone wants to go first-timers in New Orleans. These shops in the Outlet Collection at the Riverwalk Centre. to, based largely on its reputation as are all tourist clichés, although fun Add in a visit to the French market – open air with a fun, party town with jazz, blues, to do. Then you can learn about ten good food stalls, and all the T-shirts, cheap jewellery southern food, and a laidback vibe better things to do. and tacky mementoes you could ever desire. associated with its tagline of The Have a Hurricane in Pat O’Brien’s Bourbon Street in the French Quarter was once Big Easy. legendary Irish garden bar. Yes, it’s regarded as a must-do party destination. It still throngs Just about everything you have a fantastic drink. Made properly, and throbs every night and the LGBT parades on heard about New Orleans is, or has it’s a ferocious mixture of light and Saturdays liven things up. been, true at some point. First-time dark rums, orange, lime and passion Once the heart and soul of the New Orleans vibe, visitors should do all the things that fruit juices, with sugar syrup and much of what happens is now quite tacky and even first time visitors do in any iconic grenadine to give it the red colour. sleazy, although not particularly dangerous. town. Ordering beignets at the world New Orleans has an open carry policy for drinks. It’s In Paris, you go to the Eiffel famous Café du Monde on the perfectly legal to carry an open bottle or a glass of alcohol Tower, Notre Dame, Montmartre; waterfront is a must. Yes, their along the street, and you can stop and buy drinks from in London it’s Buckingham Palace, beignets (fried puffy dough dusted the many street front bars. Westminster Abbey, Parliament with icing sugar) are very good, but Food is part of the appeal of the city, so everyone

84 tries gumbo, the famous Louisiana seafood dish served over rice, or jambalaya a seafood or chicken based stew with rice. Be excessive and have Bananas Foster, bananas cooked in butter with lashings of liquor and spices served with whipped cream. The locals love it. For lunch grab yourself a po’boy, a large soft white bread roll with a wide choice number of fillings. Seafood with salad is common. New Orleans calls itself the home of jazz. According to New Orleans Online, the city was the only place in the New World where slaves could own drums. “It was in New Orleans that the bright flash of European horns ran into the dark rumble of African drums; it was like lightning meeting thunder. The local cats took that sound and put it together with the music they heard in churches and the music they heard in barrooms, and they blew a new music, a wild, jubilant music. It made people feel free. It made people feel alive. It made people get up and dance. And they danced to the birth of American music.”

85 August 2017 · LAWTALK 909

Return traveller’s top 10

1 Go to Frenchman Street where the cool clubs are. Try the Spotted Cat for real jazz and BB King’s for blues. Locals go there. This is a much nicer area than Bourbon Street and has a greater variety of music. I saw a Louis Armstrong-style septet at the Spotted Cat and a hard-edged funk band at the Café Negril. Check out the gigs in local entertainment paper Where Y’at. 2 Visit a plantation house, or even better go to where the story of slavery is told authentically. Whitney Plantation is the only one dedicated to telling the story of slavery from the perspective of the enslaved people. Prepare for a moving experience. 3 Take in a big sports game: the Pelicans for bas- ketball, and the Saints for football. Wonderfully rowdy, parochial and demented fans, but great fun. Any competition involving Louisiana State University also inspires awesome support from locals. 4 Go across the harbour by ferry ($2 for a four-minute journey) to Algiers Point, a quiet and old residential suburb, with great architecture, light At Preservation Hall, you’ll hear Dixieland swing and years from the hubbub of downtown. It’s even the big band styles, but that’s all. Go elsewhere for the more old fashioned than the set of Back to the myriad of styles now called jazz. Future, but the place rocks on their monthly City Mayor Mitch Landrieu calls it a “crazy, wonderful street party nights, and there are interesting city, and for visitors that’s true, but, as in the South pop up restaurants. generally, New Orleans’ past is very much alive and 5 Visit the World War Two Museum, very much not exerting an influence on the present day. how the US won the war singlehandedly, you’ll New Orleans is a liberal city in a conservative state. be pleased to know. A great story well told with The city is reliably Democrat in a state that is now relent- plenty of money spent to do so. lessly Republican, and has always been conservative, 6 Visit the Katrina Museum – heart-rendering stories politically, socially and religiously. of suffering, official neglect and recovery. Officially, One recent controversy of note has been a campaign New Orleans is back to normal and that’s largely to remove the statues of Confederate leaders displayed so, but memories and heartbreak remain. in prominent places in the city. 7 Take a cemetery tour; a guided walking tour Four statutes, of Jefferson Davis the President of which tells so much of the city’s cosmopolitan the Confederacy, of Robert E Lee, the Commander past. Many other walking tours are available, of the Confederate Armies, of Confederate General including a ghosts’ tour. The Ursuline Convent PGT Beauregard and another commemorating a dating from 1727 is also worth a visit. It’s worth Reconstruction-era insurrection have all been taken noting that the renowned French Quarter was down by order of the city council. actually designed and built by Spanish architects According to campaigners the statues were symbols and craftsmen. (Its architecture is very Castilian of a reviled past, and reminders of white supremacy. To and not at all French.) their opponents, the statues were simply part of history. 8 The open-air night art market down towards Whatever view one took of the past, it was argued, the Frenchman Street has many remarkable art works past happened and wouldn’t be changed by removing available across all genres: high quality and worth the reminders. a look even if you don’t buy. Behind the party image the city projects to tourists, 9 Try Harrah’s casino. It’s enormous; the restaurants there is a grim reality of racial division which began and bars hum with excitement and the artists and in slavery, continued under segregation, and has not entertainment are top class. There’s a degree of been ended by the gains made in civil rights in more sophistication here that is enticing, and you don’t recent times. ▪ have to gamble to enjoy the allure of the place. 10 Take a cooking class at the New Orleans School John Bishop has visited New Orleans several times, of Cooking. Learn to cook local food with the most recently in 2015 and 2016. His work can be seen wonderfully demonstrative Nita Duhé. She talks at www.eatdrinktravel.co.nz and cooks all the local classics. ▪

86 LAWTALK 909 · August 2017 LIFESTYLE

1 2 3 4 5 6 7

8 9 10

11 12 13 14

16 17

19 20 21 22 23

A New 24 25

26 27

Zealand 28 29 Legal 30 31 Crossword 32 33

SET BY MĀYĀ Across Down 1 19 down 19 across with a nasty 2 Or radio could be an invisible cough? (6) barrier to keep out heat, insects 5/32 Press after canal leaks from etc (3,4) M A T I S S E L I N C O L N 13/18 (6,6) 3 Irish singer cutting knot for N R O R I A D I C K E N S D A R R O W 8 Remains unusually unbelievable? African (6) M E B Q C D They should be told (7) 4 Have faith in topless Myrtle? (4) R A N D E R S O N T U R E I O E E R P L L 9 Overlooks building inspections (7) 5/17 Fort’s foil may foil a 1... (8) P E T E R S D I S R A E L I 11 Paris was one possible work of 6 ...and not 599, like Stieg Larsson, E M I E Y T G a 1 (6) for example (6) S P R I N G E R C L E E S E E G N S H Y N 14 Sex was put before this rod in 7 West, south and mid-north N E H R U R O O S E V E L T 1975 (6) backed the Master (7) D A P N A O 15 Write back to reactionary in 8 19 across’s established habits suit L I T T L E C L I N T O N A E E E E S charge, and Bob’s your uncle! (7) retrospective theme (5) G R I S H A M S T U D I E D 16/29 Almost shoot elusive chap 10 Thus light may be like a shoe (5) providing something designed 12 Upstanding fellows have spoken Solution to July to keep out a 1 (8) of groves or woodland (7) 2017 crossword 17 See 5 Down 13/18 Law firm on face smacks - Across: 18 See 13 Down so deviant! (7,7) 1 Matisse, 5 Lincoln, 9 Dickens, 19 Hood with cold edge (4) 14 He throws a photograph, say (7) 10 Darrow, 13 Randerson, 21/28 Alliance of Cyclops and 19 IT - the thing from beyond (not 16 Turei, 18 Peters, 20 Disraeli, Anableps? (4,4) half!) - unearthly being found in 21 Springer, 22 Cleese, 24 Nehru, 24 Club revolutionary’s joined to outer limits of crater (5) 25 Roosevelt, 29 Little, 30 Clinton, make collections (7) 20 Home at last, back after admirer 32 Grisham, 33 Studied. 26 Come about Associate ... of my little nut tree? (7) Judge taking on the Football 22 No time for slanderin’ a Down: Association (6) hormone (7) 2 Anima, 3 Irked, 4 Son, 6 Iraq, 27 ‘Ware rampaging Romans! (6) 23 Red wheat for Watson, say (5) 7 Circulate, 8 Law, 11 Borderson, 30 Strip engaging a fugitive (7) 24 What Nor’-wester does for a 12 Diligent, 13 Ropesend, 31 Bony type of momentum? (7) ruddy, fat-faced woman (6) 14 Net, 15 Resign, 17 Psychs, 32 See 5 25 Sad, sad egg sank (6) 19 Emigrates, 23 Eye, 26 Vaned, 33 High Court judge accepting 28 See 21 Across 27 Loose, 28 Plea, 29 Lar, 31 Let. Lady’s cargo (6) 29 See 16 Across

87 SPOTLIGHT ON August 2017 · LAWTALK 909

TOTAL LAWYERS PER CENTRE, SPOTLIGHT ON CENTRES WITH 10 OR MORE Kaitaia 12 Kerikeri 25 LAWYERS AT 3 JULY 2017 Kaikohe 16 Locations Whangarei 127

Warkworth 18 BY GEOFF Orewa 16 ADLAM Auckland 5382 Thames 15

The practising year ends on 30 June, and the Morrinsville 13 Mt Maunganui 26 requirement to renew practising certificates by Tauranga 283 Hamilton 484 Matamata 19 then prompts a number of lawyers to decide on Cambridge 21 Whakatane 40 retirement. On 3 July 2017, 13,001 lawyers held Te Awamutu 29 practising certificates of whom12,353 were based Rotorua 128 in New Zealand. This was well down on the 13,552 Taupo 49 Gisborne 60 practising certificates held at 1 April 2017 12,848( New Zealand-based), but if past patterns hold, the New Plymouth 110 numbers will build over the year. There are still slightly more male lawyers than Hawera 12 Napier 123 female lawyers, but this is likely to change over Hastings 73 Havelock North 10 the remainder of the year, with over 60% of new Whanganui 57 admissions to the profession being women, Feilding 10 and 6% of lawyers who have been in prac- Palmerston North 113 tice for 40 years or more being women. Levin 20 New Zealand has one lawyer for every Paraparaumu 34 Waikanae 16 388 people, but there is wide variation Masterton 31 Porirua 45 on this across the country. Nelson 164 Upper Hutt 20 In the map and table to the right, Lower Hutt 191 Blenheim 54 the 49 locations with 10 or more Wellington 2289 lawyers are shown. Auckland comprises the Auckland Council area. Estimated populations in 2017 have been used to Greymouth 11 calculate the people per TOTAL LAWYERS vs PEOPLE PER LAWYER, lawyer indicator. CENTRES WITH 10 OR MORE LAWYERS AT 3 JULY 2017 Rangiora 34 6,310 Auckland Christchurch 1180 3,980

Ashburton 36 2,510

1,580

Timaru 54 1,000

630 Wanaka 23

400 Queenstown 80 Oamaru 18 250 Alexandra 15

160

100 Dunedin 276 60

Gore 11 SCALE LOG LAWYERS TOTAL 40

Invercargill 123 30 Upper Hutt 20

0 200 400 600 800 1,000 1,200 1,400 1,600 1,800 2,000 2,200 PEOPLE PER LAWYER

88 LAWTALK 909 · August 2017 SPOTLIGHT ON

Time in practice by location Just as the number of lawyers per person varies widely, some locations have a lot more new lawyers than others; and some First five years in practice others have a high proportion of older and possibly wiser prac- While lawyers who were admitted in the previous five years titioners. The following information is for centres which had 10 make up a third of all lawyers in some centres, seven centres or more lawyers at 3 July 2017. have no lawyers in that category. Lawyers in this group make up 19.9% of all lawyers in New Zealand, with 61.9% of them

CENTRES WITH 10 OR MORE LAWYERS AT 3 JULY 2017 women. A high 25.1% of all women lawyers were admitted less than five years ago, compared to 14.9% of all men. Centre People/Lawyer Female Male Total Kaitaia 408 6 50% 50% 6 12 Highest Proportion Lowest Proportion Kerikeri 284 10 40% 60% 15 25 Whakatane 32.5% Alexandra 0.0% Kaikohe 247 7 44% 56% 9 16 Orewa 31.3% Gore 0.0% Whangarei 444 61 48% 52% 66 127 Morrinsville 30.8% Greymouth 0.0% Warkworth 274 6 33% 67% 12 18 Whanganui 22.8% Havelock North 0.0% Orewa 556 8 50% 50% 8 16 Palmerston North 22.1% Thames 0.0% Auckland 284 2554 47% 53% 2828 5382 Auckland 21.9% Upper Hutt 0.0% Thames 471 8 53% 47% 7 15 Gisborne 21.7% Waikanae 0.0% Mt Maunganui 731 11 42% 58% 15 26 Christchurch 20.9% Mount Maunganui 3.8% Tauranga 475 142 50% 50% 141 283 Wellington 20.8% Hastings 6.8% Morrinsville 591 6 46% 54% 7 13 Hamilton 20.2% Kerikeri 8.0% Hamilton 333 262 54% 46% 222 484 Matamata 411 5 26% 74% 14 19 Cambridge 933 9 43% 57% 12 21 Lawyers 5 to 10 years from admission Te Awamutu 583 18 62% 38% 11 29 The picture changes dramatically in the next five years. Whakatane 490 26 65% 35% 14 40 While Thames has no lawyers in their first five years after Rotorua 452 61 48% 52% 67 128 admission, one-third are 5 to 10 years from admission. Of all Taupo 492 21 43% 57% 28 49 New Zealand lawyers, 15.0% are in this group, with 59.4% of Gisborne 602 26 43% 57% 34 60 them women. Almost one-fifth – 18.1% of women lawyers – New Plymouth 516 55 50% 50% 55 110 are 5 to 10 years from admission, and 11.9% of men. Hawera 983 5 42% 58% 7 12 Napier 505 48 39% 61% 75 123 Highest Proportion Lowest Proportion Hastings 944 36 49% 51% 37 73 Thames 33.3% Feilding 0.0% Havelock North 1300 2 20% 80% 8 10 Hawera 25.0% Havelock North 0.0% Whanganui 695 23 40% 60% 34 57 Te Awamutu 24.1% Waikanae 0.0% Feilding 1625 5 50% 50% 5 10 Queenstown 23.8% Matamata 5.3% Palmerston North 746 44 39% 61% 69 113 Ashburton 22.2% Warkworth 5.6% Levin 1030 8 40% 60% 12 20 Wanaka 21.7% Morrinsville 7.7% Masterton 684 14 45% 55% 17 31 Rotorua 19.5% Mount Maunganui 7.7% Waikanae 688 7 44% 56% 9 16 Kaikohe 18.8% Kerikeri 8.0% Paraparaumu 741 20 59% 41% 14 34 Greymouth 18.2% Hastings 8.2% Porirua 1231 27 60% 40% 18 45 Porirua 17.8% Whanganui 8.8% Upper Hutt 2130 9 45% 55% 11 20 Lower Hutt 541 86 45% 55% 105 191 Wellington 91 1225 54% 46% 1064 2289 Lawyers over 40 years from admission Nelson 404 74 45% 55% 90 164 There are 958 lawyers who are 40 or more years out from Blenheim 570 26 48% 52% 28 54 the date of their admission (5.7% of whom are women). This Greymouth 886 2 18% 82% 9 11 is 7.8% of all New Zealand lawyers, but 14.4% of all male Rangiora 510 17 50% 50% 17 34 lawyers and just 0.9% of women. Christchurch 330 607 51% 49% 573 1180 Ashburton 551 18 50% 50% 18 36 Highest Proportion Lowest Proportion Timaru 533 23 43% 57% 31 54 Feilding 50.0% Orewa 0.0% Wanaka 348 12 52% 48% 11 23 Warkworth 44.4% Hamilton 4.5% Queenstown 179 44 55% 45% 36 80 Thames 33.3% Whakatane 5.0% Oamaru 783 10 56% 44% 8 18 Hawera 33.3% Wellington 5.2% Alexandra 320 7 47% 53% 8 15 Havelock North 30.0% Oamaru 5.6% Dunedin 429 139 50% 50% 137 276 Matamata 26.3% Auckland 6.6% Gore 900 5 45% 55% 6 11 Levin 25.0% Te Awamutu 6.9% Invercargill 412 56 46% 54% 67 123 Upper Hutt 25.0% Christchurch 7.0% All Others 2937 162 45% 55% 195 357 Waikanae 25.0% Tauranga 7.4% Total 388 6063 49% 51% 6290 12353 Morrinsville 23.1% Queenstown 7.5%

89 TAIL-END

TAIL-END

A Lawyer Netball team, with a top administrator

After finding 16 lawyers who had been selected for the All Blacks between 1884 and the present, we set out to see if we could find a lawyer Netball VII. With assistance from Netball New Zealand and other sources, we have managed it, and have also included a lawyer whose administrative acumen should be recognised. The selection criteria is to have played representative netball.

Adine Rachel Wilson [GS/WA] Adine Wilson had a stellar career, representing the Silver Ferns 79 times between 1999 and 2007, and was captain for two years. She was the skipper when the Silver Ferns beat Australia in the 2006 Commonwealth Games final and was an integral part of the winning team at the 2003 World Cup in Jamaica. Wilson began job, as an in-house lawyer at the New Plymouth and specialises in her career with Otago Rebels, while studying law and New Zealand Netball Players commercial, family, employment, physical education at the University of Otago, and Association in Newmarket. oil and gas and sports law. went on to play for the Southern Sting, winning five national titles. Admitted in December 2003, Wilson Alice Ruth Dombroski Caitlin Dowden [GS] is a solicitor at Cook Morris Quinn in Auckland, spe- Has represented both Taranaki A member of the Mainland team cialising in commercial law. and Otago. She graduated with in the Beko League, a nationwide LLB from Victoria University of development competition, she Charlotte Kight [WD, GD, GK] Wellington in 2010 and was admit- has also been selected as a Train She started in the National Bank Cup with the Western ted as a barrister and solicitor in On partner for the Tactix in 2018. Flyers in 2005, before moving to the Canterbury November 2011. After working Dowden was a member of the Flames in 2007 which became the Canterbury for a New Plymouth firm she New Zealand secondary schools Tactix for the inaugural ANZ Championship in 2008. joined Thomson Wilson Law in side, while attending Auckland’s Kight played with the New Zealand U-21 team from Whangarei in 2013 and specialises Mt Albert Grammar School. She 2006–09. She was selected for the Silver Ferns squad in business law, property law, wills was also a player in Netball New in 2009, but wasn’t capped. In 2012, she joined the and trusts. Zealand’s 2015-16 Silver Fern Northern Mystics. Graduating LLB from Canterbury Development Squad. Dowden University she worked in Russell McVeagh’s corporate Miaana Ellen is studying towards Bachelor of team and is now working with football’s governing Mohikura Walden Laws and Bachelor of Commerce world body, FIFA, in Zurich. Miaana Walden has also repre- degrees at the University of sented Taranaki and Otago and Canterbury. Stephanie Ann Bond [WD, GD] was a member of the New Zealand Stephanie Bond played two years in the ANZ Elite Netball Academy. The sports Maria Jane Clarke Championship for the Northern Mystics from all-rounder was also a member Maria Clarke was a representa- 2008–09, but was not signed for the 2010 season, of the Taranaki tennis team tive level netball player and has due to time restraints with her law career. Before for a number of years. Walden become a well-known sports the ANZ Championship, Bond spent time with graduated LLB, BA from Otago lawyer through her boutique both the Auckland Diamonds (2006-2007) and the University in 2014 and was admit- sports law firm Maria Clarke Otago Rebels (2001-2005) in the National Bank Cup. ted to the bar in June 2015. She Lawyers. Maria graduated Admitted in November 2005, she has found her dream now works at Govett Quilliam in LLB(Hons) and BA from the

90 LAWTALK 909 · August 2017 TAIL-END

Notable Quotes

❝ If you come out to the streets, we will break every bone in your body. ❞ — Junayed Al-Habib, Vice President of Bangladesh Moslem organisation Herfazat-e-Islam, speaking through the media to human rights lawyer Sultana Kamal.

❝ That’s an indication of your intoxication. ❞ — Judge Michael Turner in Dunedin District Court when told that Dean Martin, 58, had requested “Donald Trump” after Police found him intoxicated in his car which had crashed into a ditch and asked if he wanted to consult a lawyer. Martin was jailed for 13 months, a decade after he was jailed for three and a half years after a passenger ◂ Adine Wilson holds up her was killed during another drunken driving episode. gold medal at the 2006 Commonwealth Games in ❝ In this particular case, the only thing I’d be impartial about is what Melbourne. prison he goes to. ❞

 Photo courtesy Netball NZ, by Michael Bradley — A potential juror in the securities fraud case in New York against Martin Shkreli, explaining why he should be excluded. Of the first 200 possible jurors, none were approved.

University of Otago in 1990 and ❝ Our name matters just like any name matters and we want to ensure was admitted in September 1991. that that name, while respecting traditions, also reflects who we Her legal career saw her work are today, not just who we were 220 years ago. ❞ with Brandon Brookfield/Simpson — Law Society of Upper Canada bencher Julian Falconer, who is part Grierson, Martelli McKegg and of a group considering the regulator’s name – which has remained Rigby Cooke Lawyers until she the same since it was created in 1797. Upper Canada ceased to be formed her specialist firm. She a political entity in 1841. has acted for many national sports organisations. ❝ You’re in the front end of the theatre to observe the astonishing complexity of human life. ❞ Raewyn Jeanette — Justice Nicholas Davidson addresses four new lawyers at an admission Lovett ONZM ceremony at the High Court in Invercargill. Raewyn Lovett spent 9 years as a board member of Netball ❝ I fight hard. I believe that’s what I’m supposed to do. I am not a New Zealand, seven of them as snowflake, I can tell you that.❞ chair before she stepped down — Washington lawyer and ex-Marine John Dowd, one of President from the role in April 2014. She Donald Trump’s growing team of lawyers. received an ONZM for services to netball in the 2015 Queen’s ❝ The role of the government lawyer is important. It matters. Birthday Honours. In her time on Governments may make ‘political’ mistakes with legal consequences. the board she oversaw the intro- The role of the government lawyer is to provide strong, sometimes duction of the ANZ Championship courageous, accurate and independent legal advice. ❞ and was integral in implement- — Hon Marilyn Warren AC, Chief Justice of the Australian state of Victoria, ing a major restructuring of the at the 2017 Australian Government Lawyers’ Conference. sport’s structure and organisation. Admitted in February 1984, ❝ As Mr Hill said in evidence, and as every lawyer knows, ‘thou shalt she is a partner with Duncan not overdraw the trust account’. ❞ Cotterill in Auckland and mainly — Peters J delivering the Court of Appeal judgment in Hill v R [2017] involved in commercial and cor- NZCA 286 in which Richard Hill’s appeal against conviction on a porate law. ▪ representative charge of criminal breach of trust was dismissed.

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