ISSUE 923 · November 2018

McKenzie friends

There’s more of them, but what do they actually do? Page 70

New Tumuaki of Cross leases and Talking about Legal Salary Te Hunga Rōia Re McKay mental health Survey 2018 Māori o Aotearoa results

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6 · From The Law Society Update 22 · Crisis? What Crisis? Time 7 · New Zealand Law Society for structural reform in the construction 10 · Letter To The Editor industry ▹ BY JOHN WALTON 25 · Storm in a cereal bowl: People Australasian Conference 10 · On the move Association Ltd v A Little Bit 14 · Te Reo admission of Britain Ltd [2018] NZHC ceremony a wonderful 2501 ▹ BY KATE DUCKWORTH celebration ▹ BY GEOFF ADLAM 27 · Cross leases and Re 15 · Suzanne Innes-Kent, Judges’ McKay ▹ BY THOMAS GIBBONS 6859 Clerk, Employment Court, Auckland ▹ BY ANGHARAD O'FLYNN Alternative Dispute 17 · The Innovators: Anton Resolution Smith, CEO Consensus New 29 · Consensus building, Part 3 - The Zealand ▹ BY ANDREW KING CBA participants ▹ BY PAUL SILLS 18 · Adine Wilson ▹ BY CRAIG STEPHEN 31 · Intellectual Property 20 · New Tumuaki aim to be and Alternative Dispute effective advocate for all Māori Resolution ▹ BY MARK KELLY lawyers ▹ BY CRAIG STEPHEN Practising Well 34 · Talking about mental health ▹ BY GAYNOR PARKIN AND DR ALLANAH CASEY

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ABOUT LAWTALK NEW ZEALAND LAW SOCIETY News and Communications/LawTalk. The Law Society LawTalk is published monthly by the New Zealand Law has a strict policy of not publishing articles in exchange The New Zealand Law Society was established on 3 Society for the legal profession. It has been published since for advertising. September 1869. It regulates the practice of law in New 1974 and is available without charge to every New Zealand- Zealand and represents lawyers who choose to be members. LAWTALK ONLINE based lawyer who holds a current practising certificate. The powers and functions of the Law Society are set LawTalk is also distributed to others involved in the justice An online version of LawTalk is available on the New out in the Lawyers and Conveyancers Act 2006. As well system or legal services industry. These include members Zealand Law Society’s website at www.lawsociety.org. as upholding the fundamental obligations imposed on of the judiciary, legal executives, librarians, academics, law nz. A link to the latest online LawTalk is emailed to all lawyers who provide regulated services, the Law Society is students, journalists, Members of Parliament and government practising lawyers each month after publication. Receipt required to assist and promote the reform of the law, for agencies. Total LawTalk circulation is around 13,400 copies. of the hardcopy LawTalk may be cancelled by emailing the purpose of upholding the rule of law and facilitating [email protected] and stating “please the administration of justice in New Zealand. SUBMISSION OF MATERIAL cancel LawTalk hardcopy” and advising name, lawyer ID ENVIRONMENTAL STATEMENT All contributions, letters and inquiries about submission (lawyer login), workplace and address. of articles should be directed to the Managing Editor, LawTalk is printed on Sumo Matte. This is an environmentally SUBSCRIPTIONS [email protected]. responsible paper. Forestry Stewardship Council (FSC) Non-lawyers and lawyers based outside New Zealand certified, it is produced using Elemental Chlorine Free ADVERTISING may subscribe to LawTalk by emailing subscriptions@ (ECF) Mixed Source pulp from Responsible Sources and Advertising inquiries should be directed to advertising@ lawsociety.org.nz. Annual subscriptions in New Zealand manufactured under the strict ISO14001 Environmental lawsociety.org.nz. Information on rates, deadlines and are NZ$145 for 11 issues (GST and postage included). Management System. The FSC is an international non- conditions is available on the Law Society website under Overseas rates are available on request. profit, multi-stakeholder organisation which promotes Contents

Creating A Just Culture 59 · Embracing the 77 · Legal aid: the problems 38 · How is the Gender Equality unknown and the and issues Charter working out for legal unexpected ▹ BY GABRIELLE workplaces? ▹ BY NICK BUTCHER O'BRIEN Legal Information 42 · Update 79 · Pleadings Without Tears – A Future Of Law Guide to Legal Drafting Under 45 · Lawyers Complaints 63 · Developments the Civil Procedure Rules ▹ Service REVIEWED BY GARRY WILLIAMS The Justice System Tikanga And Ture 66 · Of Chief Justices ▹ BY GEOFF Classifieds 52 · Te Hunga Roia Kura Reo ADLAM 81 · Will notices 2018 ▹ BY ALANA THOMAS 69 · Conference will celebrate 82 · Legal Jobs Dame Sian’s achievements 84 · NZLS CLE Ltd CPD Calendar Practice 54 · Legal Salary Survey 2018 results Access To Justice Lifestyle released ▹ BY GEOFF ADLAM 70 · McKenzie friends: there’s 86 · A New Zealand Legal Crossword 56 · Startup marketing more of them, but 87 · Chicago: colourful, techniques for lawyers – Part what do they actually contradictory and very much 2 ▹ BY DAMIAN FUNNELL do? ▹ BY TRACEY CORMACK its own ▹ BY JOHN BISHOP 57 · Notaries public 74 · “Benchmark” needed outside main helps vulnerable 90 · Tail end centres ▹ BY STEWART GERMANN witnesses achieve 58 · Working smarter to justice ▹ BY LYNDA HAGEN reduce the cost and 75 · Barriers to burden of the discovery participation ▹ BY ROBIN process ▹ BY ANDREW KING ARTHUR

CONTACT DETAILS responsible management of the world’s forests. FSC certification is internationally recognised as the most rigorous environmental  26 Waring Taylor Street, Wellington 6011 and social standard for responsible forest management. The  04 472 7837 DIGITAL CONTENT EDITOR Craig Stephen paper used to produce LawTalk meets FSC requirements at all  PO Box 5041, Wellington 6140, New Zealand, or 04 463 2982 · [email protected] stages along the production cycle. DX SP 20202. LEGAL WRITER Tracey Cormack The shrink wrap used for delivery of LawTalk is 27 micron PRESIDENT Kathryn Beck 04 463 2936 · [email protected] biodegradable film manufactured in New Zealand. This degrades BOARD SENIOR DESIGNER Andrew Jacombs naturally. If you wish to discard LawTalk, please recycle it. The Nerissa Barber (Wellington) 04 463 2981 · [email protected] wrapping may be composted. Tiana Epati (Central North Island) DESIGNER Sophie Melligan Tim Jones (Auckland) 04 463 2993 · [email protected] Andrew Logan (South Island) WEBMASTER Miranda Kaye ACTING EXECUTIVE DIRECTOR Mary Ollivier 04 463 2990 · [email protected] MANAGING EDITOR AND DIGITAL CONTENT SPECIALIST Angela Ludlow COMMUNICATIONS MANAGER Geoff Adlam [email protected] 04 463 2980 · [email protected] ADVERTISING ***** FPO ***** SENIOR COMMUNICATIONS ADVISOR 04 463 2905 · [email protected] Placeholder for Nick Butcher · 04 463 2910 PRINTING AND DISTRIBUTION FSC Certificate [email protected] Format Print, Petone, Wellington PLEASE ***** FPO ***** COMMUNICATIONS ADVISOR Angharad O’Flynn ISSN 0114-989X (Print) RECYCLE 04 463 2902 · [email protected] ISSN 2382-0330 (Digital) FROM THE LAW SOCIETY November 2018 · LAWTALK 923

From the Law Society

iwi, and individual clients in some chal- Talofa lava lenging cases. It is enormously rewarding Mahia i runga i te rangimarie me te to help people, and organisations navigate ngakau mahake. our legal system, and be able to help with I am very humbled and honoured to a problem or stressful situation. In some have been elected President of the New instances you have the opportunity to Zealand Law Society. I will become the 31st change the course of a person’s life for President and I am deeply mindful that I the better. There are plenty of challenges am joining a long line of people who have in this profession, but the rewards make taken up the wero (challenge) of leading it worth it. the legal profession. What are we facing as a profession? The Of course, I will not be taking up the May 2018 annual national survey of lawyers role until April 2019. Kathryn Beck is found lawyers themselves think the four President and I would like to pay tribute biggest challenges facing lawyers are: to the fantastic job that Kathryn has done • Stress and anxiety; and continues to do. • Workplace health and safety; This year has been a challenging one for • Diversity (of all kinds) and inclusion; and our profession. There has been an unprec- • Financial stability and profitability. edented and justified focus on the culture We need a regulatory complaints system in legal workplaces, the role of the Law which is fair and effective for dealing with Society as regulator, and how to achieve issues of inappropriate and unacceptable gender and ethnic equality of opportunity among lawyers. behaviour. We need a suite of protective measures for lawyers The Law Society’s Legal Workplace Environment Survey found who raise sensitive matters to ensure it is a safe process. We need that 31% of women who responded had been sexually harassed flexibility in terms of processes and outcomes. We also need good at some time. The Law Society and the wider profession have support for both lawyers who make complaints and lawyers who commenced a wide range of actions and initiatives to address the are the subject of complaints. issues and to put lasting and effective changes in place. We know improving diversity in senior leadership roles will As Law Society President Kathryn Beck has been a tireless leader have an impact on culture change. There has been much work and spokesperson. As a member of the Law Society Board, I can done in terms of women in the law. However, diversity is more attest to the energy, commitment, and courage, which Kathryn than gender. The Law Society can lead culture change by ‘walking has brought to leading us on what will be a long pathway to the talk’. This means ensuring we are doing everything we can to securing the many changes which are needed. demonstrate we have cultural competence (for example, offer- While I am aware of the pressures attached to the role, I’d like ing Te Reo Māori learning opportunities to all employees), and to say why I am looking forward to becoming President in April ensuring we have intersectional representatives on committees, next year. panels and groups. Until 2012, I was one of those people who didn’t think the Law We need to deal with all the unacceptable behaviour. The Society was particularly relevant to me. Then I encountered an Workplace Environment survey gave us some additional data in issue with judicial resourcing in Gisborne and took up the role of terms of bullying (for the six months leading up to the survey in branch President to change the situation. Gisborne had not had a April 2018) of ethnic minorities which is motivated by race. It also resident judge for 15 years. I asked for support and help from the told us that 49% of general bullying was perpetrated by women. Law Society national office and was given it. Ultimately, it was a We all need to take responsibility for the way we behave and be team effort involving local lawyers, national office representatives responsible for each other too. If every lawyer changes a little bit, and staff. We now have two resident Judges; that brought home the whole profession changes a lot. the importance of our national organisation and how it can use I look forward to working with all of you in this important and the power of 14,000 lawyers to effect important changes in our ultimately rewarding profession on our journey to achieving a justice system. just culture. I care a lot about what happens next. As a lawyer. A woman. He waka eke noa. We are all in this together. A person of Pacific Island descent. And the mother of two Māori children. Tiana Epati I love what I do. I have represented the Crown, organisations, President-Elect, New Zealand Law Society

6 LAWTALK 923 · November 2018 NEW ZEALAND LAW SOCIETY

NEW ZEALAND LAW SOCIETY

Law Society Opening of the Council meets Legal Year in London

The New Zealand Law Society’s Council held its New Zealand Law Society President Kathryn Beck six-monthly meeting in Wellington on 24 October. is pictured with the President of the Law Society of History was created with the participation of a rep- England and Wales, Christina Blacklaws, at the Opening resentative from the Te Hunga Rōia Māori o Aotearoa of the Legal Year at Westminster Abbey in London on – The Māori Law Society as an observer. As well as the 1 October. The service dates back to the Middle Ages election of Tiana Epati as President from April 2019, when judges prayed for guidance at the start of the legal the Council discussed the Law Society’s culture change term. They used to walk two miles from Temple Bar to work programme, diversity and inclusion in the legal the Abbey, but now travel by car. Along with Ms Beck profession and the implementation of phase two of representing the New Zealand Law Society, over 700 the Anti-Money Laundering and Countering Funding people were invited to attend the service and breakfast. of Terrorism Act 2009 by the Department of Internal Affairs. Each of the branches, sections and other organisations comprising the Council also reported on current issues.

Keep Holidays Act workable in practice, says Law Society

It is important to ensure that any recommendations to the Government by the Holidays Act Taskforce ensures the Act remains workable in practice, the Law Society has said in comments on the Taskforce’s Holidays Act 2003 Review – Issues Paper. Noting that a wide range of businesses find compliance with the Act difficult, the Law Society agrees that any potential solutions need to be applicable to the full range of current and expected future working arrangements. As well as the range of business arrangements identified by the Taskforce that can have difficulties with the Act, the Law Society points to businesses which remunerate employees with variable payments, employers who have arranged a medley of fixed remuneration and variable remuneration, and businesses where significant unrostered overtime is performed.

#MeToo at International Regulators conference

Law Society acting Executive Mrs Ollivier says before the New Zealand and the actions the New Zealand Law Director Mary Ollivier was one session she was surprised that Society has taken. She says several of the organisations of the moderators at a session on there had been no discussion of in attendance saw the New Zealand experience as a #MeToo and the role of the legal bullying and harassment in the prompt for them to take proactive action and start regulator at the International legal profession. However, there was investigating measures which are aimed at addressing Conference of Legal Regulators in much discussion during the ses- the issues and moving towards creating a safer culture The Hague, Netherlands, from 4 to sion and many of the participants in their professions. 5 October. expressed interest in the events in

7 NEW ZEALAND LAW SOCIETY November 2018 · LAWTALK 923

Independent evaluation of AVS pilot needed Retrospective effect of clause questioned The New Zealand Law Society She said “the influence of tech- supports the use of Audio Visual nology needs to be moderated, in A proposed clause in a new Part 2 Services (AVS) in appropriate cases order to preserve and protect exist- of Schedule 1 of the Crown Minerals in principle, but says an independ- ing standards of criminal justice, (Petroleum) Amendment Bill 2018 ent evaluation of a recent Auckland including the rights of defendants creates a legal issue regarding the pilot is needed to ensure defendant’s and victims.” application of the bill to existing rights are not breached. The Law Society has reviewed applications. The Law Society’s Criminal Law a Ministry of Justice and Police A Law Society submission on the Committee has been involved evaluation report of the Auckland bill says proposed clause 24 reverses in the Auckland Custody Unit / Custody Unit Pilot, alongside reports the current situation where appli- Audio-Visual Services pilot, along from both the Public Defence Service cations for petroleum exploration with taking part in a Remote and Duty Lawyer Service, including permits are determined using the Participation Workshop. feedback from duty lawyers who provisions in force at the time the AVS provides the ability for have worked under this pilot. application was lodged and before a defendant to appear in court The ministry recognises further any amendment. remotely from where the person is refinement of the Pilot is necessary “The key issue is that while the being held in custody. before continuing it as a ‘business change applies prospectively, it is However, the Law Society says as usual’ operation, but the Law retrospective in effect. Clause 24 that first appearances in court give Society is urging caution for a breaches a legitimate expectation rise to particular concerns. When a number of reasons. that existing applications for petro- person is arrested for an offence and “While the ACU Pilot has been leum permits will be determined not released, traditionally their first successful in assisting some according to the law in force at the appearance in court is conducted defendants to appear remotely time the application was lodged,” in person, as required under sec- rather than being brought to the it says. tion 23(3) of the New Zealand Bill courtroom, we think there’s still a The Law Society recommends of Rights Act 1990. The right to be need for an independent evaluation that there is further consideration brought before a court as soon as before it becomes the norm. Broader of whether it is necessary and possible after arrest recognises the access to justice concerns need to be appropriate for clause 24 to have constitutional separation of the addressed. The PDS and Duty Lawyer retrospective effect and how this judicial and executive branches reports raise significant practical may impact on the rule of law. of government and reaffirms the concerns. The Duty Lawyer Service critical role that the courts play in report indicated that duty lawyers ensuring the legitimacy of an arrest found the pilot created significant and detention. additional work and stress. Some have even indicated they may not Departure is significant be prepared to continue doing this “Therefore a departure from this work if the ACU pilot becomes the standard is significant and needs norm. Given they’re an integral part careful consideration before it is of the process, their concerns need duty lawyer to the same extent as rolled out as a ‘business as usual’ to be heard and considered,” says if they were appearing in person,” model,” says Law Society Criminal Mr Bonnar. Mr Bonnar says. Law Committee convenor, Steve The Chief District Court Judge “Some defendants after an AVS Bonnar QC. supports the Law Society’s request appearance did not even appreciate In LawTalk 911, October 2017 for an independent evaluation. that they had appeared in a public (“Ensuring technology serves the court setting.” interests of justice”) Chief District Creation of When making a decision on Court Judge Jan-Marie Doogue disengagement whether to roll out AVS for arrest acknowledged that technology Other concerns in the reports appearances, the Law Society says could assist the courtroom but include that AVS has created dis- cost savings and administrative also issued a warning “for all those engagement by defendants. efficiency must not override the working in criminal justice, it is “While some defendants preferred need to ensure that proceedings are important to resist any head-long having an AVS appearance in court, conducted fairly and that defend- rush toward new technology simply feedback also indicated that some ants’ rights to a fair trial, including on the basis that it allows us to go defendants didn’t like the imper- to be heard, to consult and instruct faster and at less cost, when so sonal nature appearing remotely counsel, and to overall access to much else is at stake.” and felt they couldn’t speak to the justice, are protected.

8 LAWTALK 923 · November 2018 NEW ZEALAND LAW SOCIETY

Lack of Law Society rejects assertion definition in of revenue harvesting The New Zealand Law Society our processes. The legislation stops State Sector issued a media statement last month us from disclosing whether we are stating that it totally rejects asser- investigating a particular matter. Act reform tions reported in the media that it However, publication orders which goes easy on lawyers in large law may include the identity of a lawyer options firms in order to continue collecting can be made when the investigation revenue from practising certificates. has been concluded.” “The Law Society regulates all Mrs Ollivier says that for the Law A lack of definition on problems 14,000 lawyers with a New Zealand Society to commence an investi- and potential solutions in a State practising certificate without any gation it must receive a report, Services Commission discussion preference. To suggest that a lawyer a complaint or it can commence document has made it impossible would not be disciplined because an own motion investigation to comment on the necessity or revenue may be lost from a prac- where there is sufficient evidence potential efficacy of most of the tising certificate fee or continuing available. specific questions raised, the Law education course is irresponsible,” “Earlier this year we set up an Society says. acting Executive Director Mary independent regulatory working The document on reform of the Ollivier says. group chaired by Dame Silvia State Sector Act 1988 and directions “All lawyers are treated in the Cartwright to look at all the regula- and options for change, sets out same manner and we have a strong tory issues around harassment and several proposals recommending and effective regulatory system. To other unacceptable conduct in the reform of the operation of the exist- be a lawyer requires a high ethical workplace and whether our current ing state sector in a bid to improve standard. There is a complaints and legislation, systems and processes public service outcomes. disciplinary process provided for in are adequate. In its comments on the document, the legislation and any lawyer who “As we reported last week, the the Law Society says it does not spec- falls below that high ethical stand- working group is now finalising its ify whether stated reform objectives ard or who brings the profession report and has circulated the draft are or have not been met in prac- into disrepute is subject to that for comment and feedback. It aims tice. If so, it does not state whether process. to publicly release the final report any past or current deficiencies in “Our regulatory processes are by early December. meeting them are attributable to committed to the rule of law and “The Law Society is absolutely shortcomings in the Act and how the natural justice which means that committed to creating safe, proposed statutory reforms would we must investigate matters thor- respectful, healthy and inclusive address any such shortcomings. oughly and listen to all parties. workplaces. We have set up a This lack of definition means the That can take some time when a Culture Change Taskforce which document doesn’t identify appar- matter is complex. Both lawyers will be prominent in carrying out ent deficiencies in the Act, even and non-lawyers are involved in this work.” though they have been provided in published review work. Without the document engaging with that material on a detailed level, it is difficult to form any view on the necessity or efficacy of possible statutory reforms. The Law Society recommends that before the proposed reform exercise proceeds, it is essential for the Commission to undertake further work to identify whether and to what extent present and past fail- ures reflect statutory shortcomings. New client relationships at your fi ngertips “Doing so would allow the Commission to identify whether New Zealand’s independent and how any statutory reform online legal marketplace may, in practice, provide effective www.consensus.nz responses to those failures,” it says.

9 ON THE MOVE · PEOPLE November 2018 · LAWTALK 923

PEOPLE ON THE MOVE

Five Community firm lexvoco’s New He has experience in IT outsourcing, Magistrates appointed Zealand team as Head including business process outsourcing, of Legal Services, Risk software development and licensing, data Terence Bourke (Auckland, who will also & Compliance. Louise hosting, and data protection, privacy and sit in Hamilton), Shaun Cole (Tauranga), was formerly the head open data. Admitted in November 2010 Lucy Daniels Whineray (Auckland), Simon of risk and compliance after graduating BA and LLB at Otago Heale (Christchurch) and Sally O’Brien (services) at BNZ, and University, Nick was previously a senior (Christchurch) have been appointed as before that the Head of associate at an international firm based community magistrates. They were sworn Legal – Retail at the same bank. She has a in Sydney. He has also been on a number in at ceremonies in the three centres from strong corporate/commercial law skillset, of client secondments in the technology, 23 to 26 October. as well as a great depth of risk and com- telecommunications, and FMCG sectors. Community magistrates are judicial pliance experience. officers who deal with a wide-ranging Lisa MacLennan joins body of work. They can impose sentences DLA Piper appoints Fairbrother Family Law on persons who have been found guilty or Special Counsel plead guilty to certain minor imprisonable Lisa MacLennan has joined Napier firm offences, and can conduct defended hearings DLA Piper has appointed Fairbrother Family Law as a solicitor. Lisa for a range of non-imprisonable offences. Nick Valentine as was admitted as a barrister and solicitor Special Counsel. Nick in June 2013 after graduating LLB from Louise Unger specialises in IT and the University of Waikato. She also holds joins lexvoco telecommunications, a BA(Hons) in international relations with a background in and affairs from Victoria University of Louise Unger has joined newlaw intellectual property. Wellington. Before joining Fairbrother

LETTER TO THE EDITOR Court reporting

approved – sometimes they would languish For court reporters to be able to do their I read with interest Nick Butcher’s and never be responded to. jobs as best as possible there must be sup- article on court reporting (LawTalk 921, Most lawyers and prosecutors, and port from those in the industry, rather than September 2018). some court registrars, were helpful if the attitude that the media are the enemy. I wish some of the reporters you’d asked you wanted to clarify information. But a Kelly Dennett for comment had felt they could talk about select few would refuse to be helpful; some Sunday Star-Times News Director the profession. Jock Anderson probably were deliberately obstructive. Imagine, for wasn’t the most balanced point of view. example, trying to confirm the details of LawTalk Editor Geoff One aspect that was missing was the suppression order. Pretty basic stuff, but Adlam replies: Ministry of Justice and the courts’ accessibil- even that could turn into a rigmarole. Quite a number of reporters were approached ity to help court reporters do their job better. I’ve experienced judges kicking reporters for comment, but all refused with the excep- I was a court reporter for Stuff, in out of court rooms and locking the doors, tion of Jock Anderson. Mr Anderson has a Auckland, for years and one of the biggest for no reason listed under statute, registrars long career as a reporter of court proceedings hurdles in trying to get accurate informa- refusing or unwilling to let reporters know and the legal profession and I believe his tion – or indeed any information on a case when a hearing is resuming, prosecutors views were both fair and balanced, drawing – was the courts themselves. and lawyers refusing to confirm basic on his extensive experience and knowledge. It frequently felt like an ‘us versus them’ details like the spelling of a witness’s Very few reporters would be able to match mentality from court staff. Applications for name, and court staff refusing to release that, and none appear to share his willing- summary of facts, court transcripts or even charge sheets so media could find out the ness to express his views on the important suppression orders could take months to be timetabling of an important hearing. subject of court reporting.

10 LAWTALK 923 · November 2018 PEOPLE · ON THE MOVE

Family Law she worked for law firms in with a background in the New Zealand Cultural Anthropology). She completed Taupo and Rotorua. Army’s Military Police, Customs Service her LLM in February of this year. Lagi is a and MAF. Admitted in 2005, he has left the member of the Law Society Family Section, Chapman Tripp has new Police Prosecution Service to practise in Wellington Family Courts Association and Chief Operating Officer the areas of criminal/traffic, employment, the Pasifika Lawyers’ Association. She victim rights/coronial representation and has been volunteering at the Wellington Sophia Gunn has the Defence Force Court Martial Defence Community Law Centre since 2013. commenced work with Panel. Chapman Tripp as chief New AMINZ President operating officer. In her Maria Dew to carry out and Vice-President role she will lead the Black Sticks investigation firm’s senior leadership Auckland barrister team, working with the Auckland barrister Maria Dew has been Royden Hindle has been managing partners to appointed to lead an investigation into the elected the new presi- develop and implement national strategy. New Zealand women’s hockey Black Sticks dent of the Arbitrators’ She is responsible for the finance, tech- team and its team culture. Hockey New and Mediators’ Institute nology, infrastructure, people and culture, Zealand announced the review following of New Zealand. Mr business development and administrative claims that the team coach had created a Hindle is a member of functions for Chapman Tripp nationally. negative environment within the side. Ms Bankside Chambers Before joining Chapman Tripp Sophia was Dew specialises in employment law and and practises as an arbitrator, commer- Chief Operating Officer at Deloitte for 18 is a member of Bankside Chambers. The cial mediator, construction adjudicator, years and before that, with Courier Post review will be completed by the end of facilitator and (occasionally) as an advo- as their Commercial Manager. November 2018. cate. He was admitted as a barrister and solicitor in March 1983 and moved to the NZ winners in Appointments independent bar in 1996. He also teaches Asialaw Dispute to Broadcasting dispute resolution at AUT University, and Resolution Awards Standards Authority will continue in the role of AMINZ Director of Professional Studies. New Zealanders were among the award District Court Judge Bill Hastings has Nicola Harfield has recipients at the Asialaw Asia-Pacific been appointed chair of the Broadcasting been elected AMINZ Dispute Resolution Awards 2018. The win- Standards Authority. Before appointment Vice-President. Ms ners were announced in Hong Kong on 20 to the District Court, Judge Hastings was Harfield is a former hos- September. The event recognises the leading Chief Censor from 1998 to 2010, and chair- pital-based social worker dispute resolution advisers in the region. person of the Immigration and Protection who mediates disputes The winners were chosen by Asialaw’s Tribunal from 2010 to February 2013. in the workplace, com- editorial staff after research between June Staley Cardoza Lawyers partner Susie munity and in families. and August 2018. Bell Gully was winner Staley has also been appointed to the She also teaches mediation skills nationally of the New Zealand National Law Firm Authority Board. Ms Staley has chaired and internationally. of the Year Award. Stacey Shortall of Maritime New Zealand and is currently AMINZ’s seven-member board also MinterEllisonRuddWatts won the New chair for Save the Children NZ and includes former High Court Judge, Paul Zealand Disputes Star of the Year Award. retirement village operator Chatsford Heath QC, and family mediator Ngarongo Management. She was admitted as a bar- Ormsby – both of them also newly elected David Pawson establishes rister and solicitor in May 1989. – along with incumbents Sophie East, Mark Pawson Law Ltd The appointments of Judge Hastings and Kelly and Nicole Smith. Ms Staley are until 31 August 2021. David Pawson has Tim Rennie joins commenced practice Lagi Tuimavave joins Juno Legal from 1 November as sole Wellington Family Law director of incorporated Tim Rennie has joined Juno Legal and is law firm Pawson Law Lagi Tuimavave has joined the team at based in Auckland. He recently returned Ltd in the Bay of Plenty. Wellington Family Law as a solicitor. She home from London where he was Head of David has 25 years of graduated from Victoria University in 2015 Legal for the prepaid product processor and operational experience with a LLB and BA (Samoan Studies and distribution network epay and held global

11 ON THE MOVE · PEOPLE November 2018 · LAWTALK 923

responsibility for legal Sam Henry has been in Wellington and in London, and was matters across multiple promoted to senior solic- admitted as a barrister and solicitor in jurisdictions. Tim has itor. Sam joined the firm 2002 having completed BA(Hons) and extensive experience in 2014 and is a member LLB degrees. Anchali is on the board of in general company of the civil and com- Women in Film and Television NZ and is and commercial law, mercial litigation team. a director of Thankyou Payroll Ltd. commercial contract- His practice includes a ing, regulatory issues wide range of private K3 Legal appoints including finance, privacy, competition and and corporate clients to help resolve a Toni Brown director consumer regulatory, intellectual property broad range of insurance and general civil and e-commerce. litigation matters. K3 Legal has appointed family and trust law Lane Neave appoints Nicola Tiffen specialist Toni Brown new partner appointed partner of as a director. Toni com- Anthony Harper pleted a law degree at Lane Neave has appointed Sharon Skinner the University of Otago as a Wellington-based Anthony Harper has appointed Nicola in 1989. She spent the partner in its commercial Tiffen as a partner. Nicola will head next 20 years in Otago property team. Sharon Anthony Harper’s newly formed immigra- and Central Otago before returning to has extensive experience tion practice. She has 17 years’ experience the North Island. After becoming a bar- in all areas of commer- in immigration law and advises businesses, rister sole in 2009, Toni started her own cial property law, with HR teams and individuals on a wide range law firm, Toni Brown Law, in Tauranga in specific expertise in large of immigration issues. 2013, specialising in family and trust law. scale developments, Her appointment at K3 Legal brings the leasing, acquisition and disposal, public James Warren appointed number of directors to seven. works and Treaty of Waitangi related Kensington Swan projects for both corporate and public Special Counsel Kerri Dewe appointed entity clients. Before joining Lane Neave, director of Lowndes she worked for another large national Kensington Swan has law firm and later owned and managed appointed James Warren Lowndes has appointed a boutique commercial property law firm as Special Counsel in its Kerri Dewe as a director. in Wellington. national employment Kerri joined Lowndes in team based in Auckland. 2011 and has developed Young Hunter announces James has 20 years’ expe- a successful practice promotions rience in employment in the corporate and law across both New M&A space, and is also Christchurch firm Young Zealand and the UK. He has returned to experienced in employ- Hunter has announced New Zealand from Fieldfisher in London ment matters. She has been recognised three promotions. where he was a partner. His background in Chambers Asia Pacific as Associate to Megan Gall has been includes advising a range of clients in var- Watch and Legal500 Asia Pacific as Next promoted to associate. ious industries, with a particular interest Generation Lawyer. Megan joined the firm as in the technology, media and retail sectors. a law clerk in 2012. She New Chief Human is a member of the civil Anchali Anandanayagam Rights Commissioner and commercial litigation team, and her becomes Hudson practice includes a wide Gavin Martin partner Paul Hunt has been appointed Chief range of insurance and Human Rights Commissioner. Currently a general civil litigation Hudson Gavin Martin Professor at the School of Law in England’s matters. has appointed Anchali University of Essex, Professor Hunt was Liz Robb has been Anandanayagam as a a senior lecturer at the School of Law at promoted to associate. partner. Anchali works Waikato University from 1992 in 2000. He Liz first joined Young in the firm’s technol- has served as an independent expert on Hunter in 2011 as a law ogy and media team, the UN Committee on Economic, Social clerk and was admitted as a barrister and specialising in tech- and Cultural Rights and as UN Special solicitor in September 2011. She works in nology procurement, Rapporteur on the right to the highest the areas of land and business conveyanc- development and support; dark fibre attainable standard of health. ing transactions, trust and estate planning procurement; licensing and commercial- and commercial transactions. isation arrangements. She has practised

12 LAWTALK 923 · November 2018 PEOPLE · ON THE MOVE

Sarah Alawi wins relationship property of the WorkSafe New Zealand Board. Hon Rex Mason Prize law. She is also experi- Currently Deputy Chair, he has been acting for Legal Writing enced in elder law and as Chair since Professor Gregor Coster’s is regularly appointed resignation from the board earlier this Auckland lawyer Sarah Alawi has won the as lawyer for the subject year. He is a former president of the New 2017 Hon Rex Mason Prize for Excellence person. Zealand Council of Trade Unions and is in Legal Writing. Ms Alawi is an associate Taupō lawyer, Brent a lawyer who has specialised in employ- with Auckland law firm Gilbert/Walker, Winkelmann, is a ment, workplace health and safety law, which she joined after completing two partner in Le Pine & Co. and mediation. years as a Judges’ Clerk at the High Court His practice focuses on For the past 10 years, he has been in Auckland. residential and commer- involved in international development To be eligible for the award, entries had cial property, trusts and work and was Chief Technical Adviser for to have been published in a New Zealand business law. the International Labour Organisation in legal publication between 1 January 2017 NZ LAW has thanked Myanmar from 2012-13. He is currently and 31 December 2017. the two directors who Chair of the Unions Aotearoa International Ms Alawai received the award for her retired after each having Development Trust, the Major Arc Media article “Gestational Surrogacy Disputes: served six years on the board. Jacqui Gray Trust and the Education Benevolent A Proposed Cause of Action for Intended (Gifford Devine, Hastings) had responsi- Society. Parents in New Zealand”, which was pub- bility for member firm staff training and lished in the New Zealand Law Review in development. Oamaru lawyer, Michael Berry & Co appoints new 2017. de Buyzer, from Berry & Co, has held the Queenstown partners Three other entries received “honourable board’s insurance portfolio. mentions”: Berry & Co has announced the appointment Anjori Mitra for her article “We’re New Special Counsel of two new partners in its Queenstown always going to argue about abortion: at Hesketh Henry office. International law’s changing attitudes Alastair Holland has towards abortion” published in the New Emma Tonkin has been appointed as a been with the firm since Zealand Women’s Law Journal – Te Aho Kawe Special Counsel in the Hesketh Henry 2016, having practised Kaupapa Ture a nga Wahine in 2017; Private Wealth team. Emma joins the since 2010 at a large firm Nicola Hulley for her book review firm after 18 years at a national law firm, in Auckland. Alastair’s “International Arbitration and Global interspersed with time in London. Her background is in banking Governance, Contending Theories and work includes experience in both private and finance and he has Evidence” published in the New Zealand wealth and property and she acts for many a particular interest in Yearbook of International Law in 2017; and high net worth individuals and families. commercial law and rural property law. Claudia Geiringer for her entry “The Emma specialises in advising those who Helen Clarke has Constitutional Role of the Courts under wish to invest in New Zealand. She has been with the firm since the NZ Bill of Rights: Three Narratives acted on a number of applications under 2014, and has practised from Attorney-General v Taylor” published the Overseas Investment Act. in the Queenstown Lakes in the Victoria University of Wellington region since her admis- Law Review in 2017. Ross Wilson to chair sion to the bar in 2008. The prize is New Zealand’s oldest legal WorkSafe New Helen specialises in all writing prize. It was established in 1973 Zealand Board aspects of private client and commemorates Henry Greathead Rex practice including conveyancing, leases, Mason (1885-1975), one of New Zealand’s Ross Wilson has been appointed Chair trusts and asset planning. longest-serving MPs. Valued at around $1,000 each year, the prize is managed by the Wellington branch of the New Zealand Law Society, as trustee for the Honourable Rex Mason Trust. NZ LAW Ltd appoints two new directors

NZ LAW Ltd has appointed two new direc- tors to its board. Melissa Bourke, a partner in Palmerston North law firm Innes Dean Tararua Law, advises clients on trust, property and

13 PEOPLE PROFILE Te Reo admission ceremony a wonderful celebration

BY GEOFF ADLAM

address to the court from his father my whānau and our people is seen In a moving and celebratory and a waiata and a haka. Following when we recognise the 150 years ceremony in the New Plymouth his admission he signed the oldest since the pursuit of Tītokowaru, High Court, Te Wehi Wright was known register of lawyers in New and the time of Te Whiti and Tohu admitted as a barrister and solicitor Zealand, dating back to 1861. when our ancestors were taken of the High Court of New Zealand on “Justice Grice addressed Te Wehi down south,” Mr Wright says. 10 October in Taranaki’s first admis- and his family,” the President of the “What happened to our people sion ceremony to be conducted in Taranaki branch of the New Zealand was not lost on us, and to add my te reo Māori. Law Society, Caroline Silk, says. name to the oldest known register Mr Wright, 25, graduated from “She ably spoke about the history in the country, and reflecting that Victoria University of Wellington of the Taranaki Bar and the signifi- some of the names on there may last year with an LLB and BA in cance of signing the oldest existing have been responsible for the Māori Studies and Māori Resource register in the country. She also imprisonment of my ancestors, sig- Management. He is working for spoke about the significance of the nals a positive change for my people Tuaropaki Trust in TaupŌ. design of the new ceremonial robes. in reshaping our peoples’ perception “This was another manifestation “It was a humbling experience of the law, and our recovery process of a dream shared by my parents and we feel privileged to have been from that trauma. to raise a te reo Māori speaking able to be part of it and to have been “For me personally, being admit- whānau,” he says. able to address the court. It is truly ted here, under my mountain is “It was a great celebration for our great that the court and her Honour testament to the hard work and whānau, and the profession.” Justice Grice were able to accommo- dedication that my parents and Mr Wright was admitted by date Te Wehi’s wish to be admitted whānau put in to ensure our gener- Justice Christine Grice before a court in his native and first language.” ation were grounded in our culture, gallery which was full with mem- sound in our beliefs, proficient in bers of his whānau and supporters. A significant occasion our language and measured in how His whānau supported him with an “The significance of this occasion for we carry ourselves.”

14 LAWTALK 923 · November 2018 PEOPLE · PROFILE

PEOPLE PROFILE Suzanne Persistence and patience Innes-Kent, Mr Wright says securing the Te Reo ceremony was a matter of “persis- tence and patience”. Judges’ Clerk, “I made the request to move the ceremony from Wellington to New Plymouth to be closer to my grand- Employment father, but that the ceremony also be in full te reo Māori. In recognition of our worldview. Court, Auckland “Right up until the practice run, changes were made, limits were pushed and the courtroom was still BY ANGHARAD accommodating of the request to O’FLYNN have speakers, karakia, waiata, haka and photos. “Some may have got a little impatient and decided on another jointly run by the Italian govern- ceremony, just to be admitted, but Suzanne Innes-Kent has an ment and a particular university. I learnt how accommodating the impressive list of qualifications: an That is how we got invited to do the process can be if you’re patient but LLB(Hons); LLM (Distinction); Dip WHO programme,” she says. persistent but most of all, com- Soc Sci (Distinction) and BA(Hons). mitted to your path. It may have But that only tells part of her story. Before the law dragged out longer than usual, but Suzanne has also trained and “I had been working for many the ultimate outcome was reached worked in a myriad of fields, and years as a workplace consultant and I would not have changed it a war zone. specialising in conflict and rela- for anything. She has trained election monitors tionship-building, so I was doing “The tears dripping down the in Italy, doctors involved in the civil lots of mediation, but there was faces of my whānau and all others war in Sri Lanka, World Health a limit to what I could do without involved, Māori and Pakeha showed Organisation (WHO) officials in legal training. a positive step for the profession and Geneva, and done training in the “A particular memory is of being for Taranaki, in moving towards an Australian outback “for assistance called in to provide professional open and diverse future.” to a human rights NGO to work with coaching to a senior manager, UN agencies in war zones”. then accompanying him to an ‘off High Court has te She says the WHO work was to the record’ informal meeting where reo ceremony ensure entry into areas of Sri Lanka he was served with a termination The Ministry of Justice has devel- that desperately needed help. notice, and thinking ‘this cannot be oped a Te Reo Order of Ceremony for “My husband and I were training right’, but having no idea how to moving counsel after an admission medical personnel in negotiating stand up for him. On the other hand, conducted in the Wellington High entry to rebel-held areas for public I have worked for employers deal- Court. Candidates for admission health reasons – eg, children’s inoc- ing with seriously incompetent or may choose to have the entire ulations, water sanitation and such. unacceptable employee behaviours ceremony conducted in Te Reo, or Medical personnel were some of the and trying too hard to accommodate counsel may move admission in Te few who could cross lines during them.” Reo (“Kia uruhau te Kōti, ka tono au the civil war. These experiences encouraged kia eke a [Name] ki te paepae o ngā “We were under contract to the Suzanne’s interest in the law, spe- rōia poumua me ngā rōia poumuri WHO, which then invited us to cifically in employment law. o tēnei Kōti Rangatira”) and the Geneva to train their headquarters “I did an LLM at Victoria candidate may assent to the oath staff in negotiation/mediation. University while working more or or affirmation by saying either “Kei We had previously trained Italian less full-time, and loved that; but te whakaae ahau” or “I do”. ▪ election monitors, through a project then later, for family reasons, I had

15 PROFILE · PEOPLE November 2018 · LAWTALK 923

to return from Singapore where answers to often complex and my husband and I were living, and most important problems. I get a I saw my chance to do the LLB, thus buzz from arguing the point with reinforcing my husband’s view that the most knowledgeable people in I specialise in doing things in the the field. I have learned that you are wrong order. never too old to learn, that research “To go to university not just as really does pay off, and that law a mature student, but as someone really is about justice, despite some long in the tooth with very varied public scepticism.” life experience, was an absolute privilege. I loved everything I Inspirations learned in all my subjects, and now “I am constantly inspired by people that I am focusing on employment around me – but people who com- law, my only regret is that I am not bine intellect and worldly acumen pursuing other interesting areas of with down-to-earth humanity will law.” do it for me every time. “Lawyer Karen Harding, who A portfolio career fought for exploited Indonesian “My background experience means fishermen, is my most recent that I can see the human stories inspiration.” behind both parties in litigation. Ms Harding won a case in the “I also have limited tolerance for Supreme Court for 30 Indonesian the occasional elitism I come across fishermen seeking redress from the in the law profession. I value hugely Crown and a South Korean fishing the institutions of law and its superb company for human rights breaches senior practitioners, including and, due to lack of pay, poor working in particular, the judges I am privi- conditions and violence. leged to work with. “I think that law views people and Current issues in the issues quite narrowly, and law firms legal profession would benefit from having people With a unique view on the world, who have done something else too. My background in Suzanne’s observations on the legal profession from psychology, for instance, brings a perspective on the now working at the frontline are logical, constructive dynamics of handling self-litigants. criticisms felt by many in the legal profession. “Any non-law background will widen the perspective “I think things are changing. Law firms need to find of people entering a career in law. In my case, I have more creative work arrangements so that people can had something of a ‘portfolio’ career.” work flexibly, or on contract, as well as in traditional Along with her academic accomplishments, Suzanne employment relationships. This means being more family has worked in radio and television talking about personal and life-friendly. relationships. She has written two books, Someone To “Fees need to come down – fees are the biggest barrier Love and Love for All Seasons; set up litigation-avoiding to access to justice. ‘partnerships’ in major utilities management contracts; “Harassment of women - and I have no doubt some been a teacher and a social worker, and also been a men - is now being investigated. Ridiculously long, social work trainer. exploitative hours need to be tackled. “I have been mentor and coach across organisations “Mentoring schemes are important – starting out in from boards and CEOs to frontline staff, from a mayor law is tough in the best of circumstances – it matters and councillors to possum hunters who lived mostly in to get it right and there is much to learn. The online the bush. Prior to my social work career, I taught at high world is in the process of changing fundamentally schools both in New Zealand and in Tonga.” the way lawyers will need to work. We need to get clear what it is we offer that cannot be done by an Enjoyment in her legal work algorithm.” Suzanne’s first legal job is her current one. Suzanne is quite possibly qualified to provide a nov- “I am still in my first legal job, as Judges’ Clerk at el-length list of advice, but she shares just one simple the Auckland Employment Court. There I am at the but encouraging piece of advice to both lawyers and heart of the interpretation and application of the law non-lawyers alike: in the employment field. It is endlessly demanding and “Hold out for what you want; think not just about constantly novel. the job but about the kind of profession you want to be “I love the sense of contribution to finding legal part of. Get involved in local legal practitioner groups.” ▪

16 LAWTALK 923 · November 2018

PEOPLE PROFILE The Innovators: Anton Smith, CEO Consensus New Zealand LawFest organiser Andrew King continues a series of interviews with key legal professionals with their inno- vation and technology stories.

What does legal innovation to you if they feel a connection to mean to you? you. How do you build and maintain It means listening to lawyers and that connection in an increasingly their customers and solving prob- digital playing field? That’s the big lems. Clients are often in the posi- question and, I think, the cause of perfect, and that’s freeing. You have to be in it for the tion where there’s no question they great pressure to come. long haul and constantly strive for perfection need legal assistance but, frankly, if I think fear of failure is a big problem for all of us work- they could avoid it they probably What developments do ing in this industry. The best lawyers I’ve encountered or would. So what can or should we you see in how legal worked for are the ones who recognise they won’t always as an industry be doing to make services are delivered? have all the answers straight away and, equally, that those the interaction easier and simpler? How legal advice is packaged, working for them offer different perspectives that can That’s what legal innovation should conveyed and paid for will change deliver nuggets of gold. We have to be more open to the be all about, in my opinion. for the better. How legal advice is opportunities failure and different perspectives present. produced is also evolving through As more lawyers adopt this innovative mindset, we What role does technology software, making many tasks pre- will see the transformation of the industry that our play in innovation? viously done by junior lawyers and stakeholders are crying out for. User experience is everything and law clerks redundant. That presents user-centred innovation demands a separate and major challenge for Why is it important for legal professionals the smart use of technology. Those our profession’s growth and longev- to continue to learn about legal innovation who will succeed in #legaltech will ity and demands grappling with. and leveraging technology? only do so if they add value, and The lawyers and firms with longevity will be the ones they’ll do it by making consuming What opportunities has legal with competitive advantage, gained through leveraging and providing legal advice easier, innovation brought you? the right technologies. That doesn’t necessarily mean AI better and less daunting. The chance to meet and work with or chatbots, although I appreciate software will become some of the smartest brains and for- increasingly of interest. I mean using even very simple What pressures are ward-thinking professionals Aotearoa technologies to build a profile online. organisations facing in the has to offer. It’s also been a way to dig The old approach of firms being comprised of ‘grinders’ delivery of legal services? deep into the frustrations those we (lawyers who prefer to ‘do the doing’) and ‘rainmakers’ Clients will always put pressure on live to serve as lawyers have about (the legal salespeople) is already over. You can be a price, especially if they don’t appre- our profession. There is a literal abun- ‘grinder’ who doesn’t enjoy the business development ciate the value lawyers provide. It’s dance of problems to solve. side of private practice and still use technology to market something which can be hard to your brand. convey, but it’s essential and creates What are some of your tips to Legal professionals need to convey who they are and competitive advantage for those who start innovating or developing why they’re the best at what they do in a professional get it right. However, no one is inter- an innovative mindset? and appealing way, and they can actually do that at min- ested in a race to the bottom with Develop a hypothesis - your guess imal cost. It’s an exciting call to action for our industry price, so what’s your differentiator as about what your users or customers and one I’m thrilled to be exploring. ▪ a lawyer if not price? To me, it’s who want - and then test it continuously. you are. At a certain point, most law- Honestly, it’s about running experi- Andrew King  [email protected] is organiser of yers have the experience to answer ments. You have to not only be open LawFest 2019, which will be held in Auckland on 21 the majority of client questions in to being wrong, you have to expect March 2019. Anton Smith will be one of the speakers their field, so the client will be loyal it. What you try is never going to be at the event  www.lawfest.nz

17 PROFILE · PEOPLE November 2018 · LAWTALK 923

PEOPLE PROFILE Adine Wilson The gold-medal netballer inspired by John Grisham to break into law

BY CRAIG STEPHEN

get into law school and that they thought law wouldn’t Few of us could truthfully say that what we be the journey to go on, and ‘how about doing physical wanted to do for a career when we are eight years old education instead’. Ironically, that was harder to get into we actually followed up on. whereas you only needed bursary entrance to get into Personally, I wanted to be a train driver. first year of law at Otago University. But in primary school ex-Silver Fern and now com- “I’m really glad I opted for law. Professor Mark mercial lawyer Adine Wilson knew exactly what her Henaghan was one of our lecturers and as soon as I career paths would lead to. attended one of his lectures, where he got us to act out Ms Wilson, who played 79 times for the Silver Ferns Donoghue v Stevenson, I thought ‘oh yeah, I totally want and also captained them, is now part of the team at to be a lawyer’.” Auckland firm Cook Morris Quinn in its Westgate office. “Right when I was little I wanted to be both a lawyer How to juggle sport and studies and a Silver Fern. I remember when you used to write Adine, who did a joint degree with physical education, those things at primary school at the start of the year says she was able to juggle her sporting career and what you wanted to be when you grow up, and those studies by being thoroughly organised and very time are the two things that I wanted to be. conscious. “I thought lawyers appeared in court all the time, “I set myself the goal of never asking for an extension had their own offices and secretaries, and I thought or other assistance; I just made sure I had everything it was all very glamorous. I guess it came from a TV done and organised so that when I would go away with show of the 80s.” the Silver Ferns I wouldn’t have assignments weighing No one in her family had ever been a lawyer. on my mind. Obviously, there were still exams I had to study for but I just had to be overly organised so Those John Grisham books I could manage all the different facets of my life.” As a teenager it was through reading John Grisham That meant carrying various law books around with books that cemented her ideals to gain a career in the her while she played in Australia, England and “exotic legal profession. locations” and spending any spare time studying. To get “I’d read them all, and every time there was a new round her netball commitments she would sit exams one out I’d snaffle it up. I loved how he wrote about the early or she would sit special exams at a later date. courtroom – I loved everything about the courtroom, She wasn’t the only one in the squad struggling with the standing up and debating, and the investigations, so text books, with Lesley Rumball studying to be a doctor, those were the parts that particularly appealed to me.” and a number of other Silver Ferns studying towards Nevertheless, the Commonwealth and World Cup- various degrees. Ms Wilson was admitted in 2003 but winning Wing Attack was almost forced to give up her only spent one year working and returned to the pro- legal dreams as her netballing career snowballed. fession three years ago after retiring from netball and “I almost didn’t do law because in my sixth form year having two children. I travelled to Toronto for the World Youth Cup and I missed a huge amount of school, and I missed all my Gold medal winner exams. So they ended up giving me Aegrotat passes so Adine Wilson was the New Zealand Under-21 captain I did pass everything but that meant that the following and competed in two World Youth Cups, and would have year my career adviser told me I didn’t have the marks to a successful international career as a senior. She was

18 PEOPLE · PROFILE

career with the Southern Steel (a merger of the Rebels and the Sting) in the trans-Tasman ANZ Championship. “I was very fortunate to have so much success with the Silver Ferns, Otago Rebels and the Southern Sting. Obviously winning the World Cup and the Commonwealth Games were the highlights but I also was fortunate to have won five national titles with the Sting and one with the Rebels.” She admits to celebrating “a little too much and making the front page of the Herald for dancing on the tables of an Auckland bar and being kicked out.” The story horrified her mother but the Ferns had just beaten the Australians to win the 2003 World Cup after all. She is married to former All Black and Black Cap Jeff Wilson, and they have two children, Harper and Lincoln, aged 10 and eight. Overcoming obstacles Ms Wilson works part-time at Cook Morris Quinn spe- cialising in trusts, property agreements and commercial contracts – which she says is hugely satisfying. “I really enjoy meeting clients, and helping them navigating their way through whatever project they are involved in. It’s nice to think you can help people who are in stressful situations and help guide them called up to the Silver Ferns squad through those tricky times.” in 1999, making her debut at the age She says the firm is very understanding of her role of 20 against South Africa. as a netball co-commentator for Sky TV and being a Her height (1.8m), quick hands My career parent. and athleticism were crucial to a adviser told me She has also had to deal with illness and injury. In team that gained incredible success I didn’t have December 2016, she fell down a ladder at the family for nearly a decade. the marks to bach, breaking her neck in two places and requiring She was the captain from 2005 get into law major spinal surgery. until 2007, played in the 1999 school and that “I was coming down from the loft and I completely (silver medal), 2003 (gold) and 2007 they thought missed a rung and fell backwards. (silver) netball World Cups as well law wouldn’t “I don’t recommend it to anyone. I got ridiculously as the 2006 Commonwealth Games be the journey lucky, if you look at the stats on such injuries you would where she led the Silver Ferns to a to go on, and not believe how lucky I got to come out the other end. famous victory over Australia and ‘how about We now have stairs at the bach.” the gold medal. doing physical While at the height of her netball career Adine Wilson She began her career with the education was diagnosed with melanoma which was removed Otago Rebels, moving two years instead’. at an early stage. She blames striving to get a tan so later to Invercargill to play with Ironically, that she didn’t look pasty white in her netball dress for the the Southern Sting, winning five was harder to cancer scare and is a strong advocate for Melanoma national titles and finishing her get into New Zealand. ▪

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19 PEOPLE November 2018 · LAWTALK 923

PEOPLE New Tumuaki aim to be effective advocates for all Māori lawyers ▸ Marcia Murray, the Tumuaki Wahine (left), and Glenn Tootill, Tumuaki Tāne, were BY CRAIG STEPHEN elected Tumuaki of Te Hunga Rōia Māori o Aotearoa at the society's 30th Hui-ā-tau.

The new Tumuaki (co-presidents) of Te Hunga Rōia Māori o Aotearoa – the Māori Law Society, are looking and ensure that initiatives that have been set up are to boost membership and be effective advocates for all followed through. In saying that, I’m excited that over Māori in the profession. two-thirds of our executive are new. That means that Marcia Murray was elected Tumuaki Wahine and we have some fresh faces with bright ideas and energy Glenn Tootill Tumuaki Tāne at the Society’s 30th Hui- to push our hunga to places that we have never been ā-tau (annual conference) in Rotorua in October. before.” Ms Murray says both herself and Mr Tootill are keen to Ms Murray, of Ngāi te Rangi, Ngāti Ranginui, empower the Society’s executive members and hear their Tūhourangi and Ngā Puhi descent, is an in-house ideas about what they should be doing for the next year. lawyer for the Ministry for the Environment. She has “As the new Tumuaki, we want to focus on building also worked for the Ministry of Justice, Tuaropaki Trust our membership, bringing us together as a collective and the University of Auckland. and being an effective advocate for our people. While with the Ministry of Justice, she worked at the “One of the initiatives that was launched at the Hui- Waitangi Tribunal, predominantly as an analyst/inquiry ā-tau was our Ngā Hoa Aroha panel which is designed Facilitator for the Wai 898 – Te Rohe Pōtae Inquiry. In to be proactive and provide tautoko and awhi (support) 2015 she joined the Ministry for the Environment’s fresh- to members of Te Hunga Rōia Māori on a confidential water rights and interests team as a policy analyst, and basis, relating to a safe working environment,” she says. in late 2016 took up a solicitor position in the ministry’s “Added to the Wahine Māori Mentoring Programme legal team. which we launched at Parliament in April this year, Mr Tootill, 35, of Waikato-Maniapoto descent, is a these fundamental mechanisms are just the beginning Business Consultant with Te Tumu Paeroa – an inde- to proactively support our members and to bring us pendent organisation supporting Māori land owners led all together.” by the Māori Trustee. He also does some consultancy work with Hamilton law firm McCaw Lewis, focusing Hitting the ground running on Māori land matters. Mr Tootill says that within the first few weeks as Tumuaki In his role at Te Tumu Paeroa he works primarily they’ve already hit the ground running. “We are going with Māori land trusts establishing kiwifruit orchards through the process of finalising a draft Memorandum on their land. of Understanding with the New Zealand Law Society,” Among those who have stepped down from the he says. executive are Haines Ellison (Ōtepoti Co-Regional “We are finalising our membership database, estab- Representative) who has served on the executive for lishing a communications platform and we are also the past six years; and Tu’inukutavake Afeaki and Ophir hoping to set up a constant revenue stream. All of the Cassidy, the Tumuaki who spearheaded the 30th anni- foundations of these aims were laid by the previous versary of Hui-ā-tau. executive.” More than 300 people attended the Hui-ā-tau in Before being elected as Tumuaki Wahine, Ms Murray October at the Toi Ohomai Campus in Rotorua. Keynote held the executive position of Te Whanganui-ā-Tara speakers included founding members Justice Joe Regional Co-Representative for two years. Williams and Dr Moana Jackson; the Solicitor-General “Six out of 21 of the executive have remained from the Una Jagose QC; and the University of Canterbury’s previous year,” she says. “As a member of the previous Head of School of Māori and Indigenous Studies, Sasha executive, it’s important to maintain some continuity McMeeking.

20 LAWTALK 923 · November 2018 PEOPLE

Community 30th These awards complemented the Contribution Award already existing awards which are anniversary Season-Mary Downs (Tukau Law Ltd). celebrated each year, including: This award recognises a member who John Te Manihera awards has made an oustanding contribution to the community beyond their “day Chadwick Award To mark the 30th anniversary of Hui- job”. Season-Mary Downs is a young Natalie Coates (University of Auckland). ā-tau, the following awards were lawyer and social entrepreneur with In celebration of a young Māori Rōia established to recognise the efforts significant national reach and she was who contributes significantly to their and achievements on Te Hunga Rōia nominated for her role in establishing community. Māori members: Tukau Community and Clothing which focuses on empowering the communi- Taonga for the National Matiu Dickson Award for ties of Moerewa and Kawakawa. Kaupapa Māori Mooting Te Reo me ona Tikanga Competition Alana Thomas (Kaupare Law Ltd). Pae Tata Award Tanira Fisher-Marama (University of In recognition of the late Matiu Arena Williams, Kiri Toki and Rachael Auckland). Dickson who was a regular supporter Jones (Chapman Tripp). of Hui-ā-tau and the composer of the Te In recognition of a member or group Te Toroa Taataki Prize for Hunga Rōia Māori waiata, Alana Thomas who has been working on a case or pro- Best Te Reo Māori mooter received this award for establishing and ject that has advanced Māori interest Mereana Te Whata (AUT University). running Te Hunga Rōia Māori’s first Kura in the last year, Arena, Kiri and Rachael Reo wānanga (Māori Language con- were members of the legal team for Manukura Trophy for ference), providing innovation in legal Ngāti Whātua Ōrakei, who recently won best mooting team services and being a strong advocate a landmark Supreme Court decision Edmond Carrucan (Waikato University), for the revitalisation of the Māori lan- which indicates when the Crown’s deci- Mereana Te Whata (AUT University) and gauge. Ms Thomas is also writer of a sions in relation to the way it engages Nerys Udy (University of Otago). regular column for LawTalk (see page with Māori in Treaty settlements can 52 of this issue). be challenged.

21 CONSTRUCTION LAW · UPDATE

UPDATE CONSTRUCTION LAW Crisis? What Crisis? Time for structural reform in the construction industry

BY JOHN WALTON

than the $157 million claimed to date. The MBIE’s sixth National Construction protection of retentions is misguided; in Pipeline Report for 2018 sets out the most the case of Mainzeal, there was a $7 million recent national projection of building and shortfall between what Mainzeal was owed construction activity for the next six years. under its head contracts ($11 million) and The report predicts sustained growth, with what it had retained from subcontractors 43,000 national dwelling consents in 2023, ($18 million). While $7 million is a signifi- and $41 billion spending across all forms of cant sum, boosting retentions by such an construction (residential, non-residential inflated sum is reprehensible, protecting and infrastructure). $18 million when over $150 million is owing The market for new housing and the is little short of fiddling while Rome burns. commitment to infrastructure develop- Any analysis must start with a recogni- ment on any estimation continues to be tion that material costs are inexplicably buoyant, and yet construction contractors high, skilled labour in short supply and continue to fail. How can this be? contractor margins unsustainably low. Add The problem is endemic with failures to that a highly competitive market, and we matching surges in construction spending have fertile ground for contractor failure. (Hartners in 2002, Mainzeal in 2013 and This is nothing new. The UK recognised the Ebert this year to name the most signifi- problem in 1994, with the Latham Report, designs and pays for the cost of the work. cant). Similarly, the country’s largest con- Constructing the Team, describing the Obviously, there are exceptions to this, struction company, Fletcher Construction, industry as “dysfunctional”; in Australia, but in general terms, the owner defines with a market capitalisation of $5.8 billion, the Blake Waldron survey of Pressure Points the work, organises finance for it and posted a $190 million loss for the 30 June in Australian Construction and Infrastructure procures the rights for the contractor to 2018 year. Projects, reached similar conclusions in carry out the work. Any departures from Hardly a day passes without the press 2005; and this year in New Zealand, Russell these fundamental obligations involves reporting the latest pet solution, whether McVeagh’s Survey of Construction Disputes, the transfer of risk which complicates the it is blaming lawyers for drafting exten- found that 70% of industry participants procurement process and potentially puts sive and complex special conditions or a expect construction disputes to increase the project at risk. lack of protection of subcontractors. The over the next two years. For its part, the contractor prepares latest proposal is for the Government to This is not very encouraging reading. a construction methodology, drafts a fund training apprentices. Each of these programme for the works and arranges solutions, while commendable, addresses The starting point labour, procures goods and materials, and symptoms rather than dealing with root Any solution must start with a recognition prices the work based on the information causes. of the roles of the parties. A successful provided by the owner. A case in point was the introduction of project results in the owner receiving a Central to this division of responsibility the statutory trust regime for retentions in completed project which meets its expec- is recognition that it is the owner’s project; the 2015 amendments to the Construction tations as to price, performance and time and the contractor is simply constructing Contracts Act 2002. The justification for of delivery; and the contractor and all sub- the permanent work (whether a house, a this change was the failure of Mainzeal contractors having their costs covered and commercial building or essential infra- Property & Construction in early 2013; yet making a reasonable profit for their efforts. structure) to the owner’s requirements. the liquidators have recently disclosed that For its part, the owner typically supplies Typically, the owner has limited interest far more is owing to unsecured creditors the site, or access to it, resource consents, in how and in what order the contractor

22 UPDATE · CONSTRUCTION LAW

is a case in point), supply chain management and scope changes by the owner. The majority of construction disputes turn on a mismatch between what the contractor tendered to construct and what the owner subsequently instructed as variations. While such uncertainty creates fertile ground for disputes, the seeds for dispute are sown with the traditional competitive procurement process and the irresistible opportunity for owners to transfer risk that the tender process provides. As lawyers, while we are motivated to do the best for our clients, this rarely results in best for project outcomes. The statistics speak for themselves. Flaws in the tender process This is unlikely to change for so long as contractors are required to tender fixed prices on incomplete designs and to take the risk for uncertain events which may impact on buildability, price and time for delivery. The tender process forces contractors to be aggressive in their pricing, and it is rarely recognised that preparing tenders is an expensive and time-consuming process. Each failed tender has an immediate adverse impact on the contractor’s overhead. Yet, if the contractor takes an aggressive or optimistic view to tendering, while it may be successful, it then comes under pressure to protect what little margin it has left, and to claim additional payment and time under the contract at any opportunity. Our putative contractor may also have been forced to accept uncertain risks during the tender process which cannot real- istically be avoided or mitigated. Granted, the contractor may have allocated a contingency to cover such risks, but that will be guesswork at best. From a project perspective, such risks may or may not eventuate, and if they do there is no guarantee that the contingency will cover the cost; it is highly likely that the contractor will claim in any event. It should be clear that, while the traditional competitive tender process might appear to be good practice, the reality is that all too often achieving a successful project is little more than a lottery. carries out the work and the contractor It is inevitable that a tender based on incomplete design will similarly has limited interest in the end result in claims for further payment, and that owners will resist product, beyond achieving the quality making such payment. required for the price quoted. Regrettably, the Government is the largest participant in the Things become complicated when construction sector and has been the biggest culprit. Unreasonable owners understandably want price, and, frankly counter-productive, allocations of risk have been the quality and time certainty at a time when hallmark of government procurement over the last few years. the design is incomplete and there is con- While the Government Rules of Sourcing promote value for money siderable uncertainty over critical issues on a whole of life basis, it also mandates competitive procurement like ground conditions, weather, economic processes. changes (the recent increase in fuel prices Further, when Government projects have shown the potential

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23 CONSTRUCTION LAW · UPDATE November 2018 · LAWTALK 923

to overrun budgeted costs, the solution has be prepared; provided they are drafted sensibly with an under- been to replace the project management standing of project risks, they need not be a cause for concern. team with those that adopt a more rigorous Fourth, there needs to be greater recognition that subcontractors and muscular approach. For contractors, effectively carry out the majority of the work in any construction this has meant running the risk of embark- project. It is not sufficient for owners to simply pay head con- ing on an expensive and uncertain disputes tractors, and say “not my problem” when subcontractors point process, and damaging the potential for out that they haven’t been paid. One easy solution to this is to future Government work, or taking the loss amend the Construction Contracts Act to make owners additionally on the chin in the hope that those losses liable for any amounts found to be owing by head contractors to can be recovered at a later date. subcontractors. The Act already has a similar procedure where the In the worst cases, contractors will pass construction site is owned by an “associate” of the contracting on risks to subcontractors or they will use owner. their cashflow from other projects to cover This may be controversial, but it is not dissimilar to the old Wages losses in the hope that it will all work out Protection and Contractors’ Liens Act 1939 (repealed in 1987). The in the end. The reality is that this game practical impact for owners and financiers is that they will take catches up with the contractors in the more care to ensure that project cashflow is properly making its end, with a significant impact not just on way down the contract chain. It is, after all, the subcontractors the contractor, but on the whole supply who carry out the majority of the work; and if there is a genuine chain; and inevitably on the owner, with problem with performance by a subcontractor which justifies its incomplete project. There is no shortage withholding part of a progress payment, it is not unreasonable of contractors with full order books and for the owner to know, and for the owner to hold the amount cranes all over the city skyline who had no deducted. idea they were trading insolvent (Hartners Finally, the sooner any potential for disagreement is identified was a case in point). the better. Regrettably, the multi-tiered dispute resolution clauses favoured Four steps to a solution by lawyers since the Channel Tunnel project* have done little but The problem, while complex, is far from entrench the parties’ legal positions, rather than seek workable insurmountable. solutions on a best for project basis. While, in the past, the engineer First, both owners and contractors has fulfilled the role of interim, impartial disputes resolver, projects should work together to reduce uncer- have become more complex and conflicts of interest harder to ignore. tainty before prices are fixed. Typically The most effective solution is to provide for early, acceptable, called early contractor involvement, the interim binding decisions either as a result of adjudication under approach is for the contractor to identify the Construction Contracts Act or, for larger projects, the estab- constructability issues during the design lishment of a sitting disputes board. stage, and for further investigations to Responsibility for the current state of the construction industry be carried out, for example in relation to undoubtedly rests with owners and their advisors. The solution ground conditions, to reduce uncertainty. to the problem rests on both owners and advisors to be brave This is also an opportunity for designers to enough to embrace the solution, rather than continue with a provide more than a 30% design, which is business as usual approach in the hope typically given at the tender stage. that it will all work itself out in the end; Second, adopt an appropriate allocation or that they will be lucky. ▪ of risk for the project. Risk is generally pro- ject specific, and should be identified and Responsibility *The Channel Tunnel project was globally continually monitored during construction. for the current significant in the construction industry for This is less an issue of risk ownership, than state of the two reasons – (1) it adopted a multi-tiered the early identification of risks to the pro- construction dispute resolution procedure, under which a ject and measures which can be taken to industry party could not go to arbitration without first avoid or mitigate those risks. Typically, undoubtedly completing the preliminary stages, and (2) the if a risk does not arise from something rests with House of Lords held that preconditioning access within the contractor’s control it should owners and their to arbitration, or to court for that matter, did be compensated for. advisors. The not adversely impact on access to justice. Third, the form of contract for the project solution to the should be appropriate for the project and problem rests John Walton  [email protected] the allocation of risk. Successful projects on both owners is a barrister at Auckland’s Bankside have contracts which reflect the require- and advisors to Chambers with experience in procure- ments of the project, rather than forcing be brave enough ment of major technology, engineering the project into the form of contract. This to embrace the and construction projects, and dispute may mean that special conditions need to solution resolution.

24 LAWTALK 923 · November 2018 UPDATE · INTELLECTUAL PROPERTY

UPDATE INTELLECTUAL PROPERTY Storm in a cereal bowl: Australasian Conference Association Ltd v A Little Bit of Britain Ltd [2018] NZHC 2501

BY KATE DUCKWORTH

How much do 108 boxes of Weetabix (the British cereal) cost? Answer: approximately $500. How much do four lawyers and three days in the High Court cost? Answer: far more than 108 boxes of Weetabix.

lawyers have argued, unsuccessfully, that Apparently 54% of us like Weet-Bix. Some of us prefer LEAFSCREEN and LEAFSCREENER and Weetabix, especially if we hail from the United Kingdom. ORIGIN and ORIGINS are identical, and In New Zealand, the Weet-Bix brand is owned by Sanitarium, successfully that INTERCITY and INTER which is owned by Australasian Conference Association Ltd. In CITY and WEBSPHERE and WEB-SPHERE the United Kingdom the Weetabix brand is owned by a different are. company and is a different formulation to the New Zealand product It might seem quite obvious that Weet- produced by Sanitarium since 1928. Bix and Weetabix are not identical and This storm in a cereal bowl was started by the New Zealand pursuing such an argument seems futile. Customs Service detaining an importation of 108 boxes of Weetabix Such an argument, if successful, has a huge destined for a British specialty store in Christchurch called UK advantage under the Trade Marks Act 2002, Foods and owned by a company called A Little Bit of Britain Ltd. however. If successfully argued, and the Sanitarium did not seek to stop the sale of the Weetabix product trade mark owner can show the goods or itself, but wanted it sold under another name or over-stickered. services used by the defendant are the A Little Bit of Britain refused, on the basis that “I don’t think that same or similar, a bit like strict liability, Weetabix is a trade mark infringement of Weet-Bix”. This is a trade mark infringement will be proved. practice A Little Bit of Britain does with Marmite imported from If the trade marks are only similar, and the United Kingdom – it over-stickers the Marmite brand with not identical, the trade mark owner will the name “Blightymite”. have to take the extra step of showing that In this case, the High Court was required to decide whether: deception or confusion will ensue. • The importation of Weetabix infringed Sanitarium’s trade mark Gendall J had no difficulty in finding that registration, under both the border protection provisions, and Weet-Bix and Weetabix are not identical. the general infringement provisions of the Trade Marks Act 2002, and as part of that consideration, whether Weetabix and Deception and confusion Weet-Bix are identical trade marks and if not identical, similar By a slimmer margin Gendall J found that enough to cause deception and confusion; there would be deception or confusion • Because the Weetabix boxes feature the registered trade mark amongst a substantial number of the symbol ®, the boxes are false and misleading; and general public. • Customs acted lawfully in its detention of the detained goods, Gendall J rejected A Little Bit of Britain’s refusing to release them, and extending the time for Sanitarium argument that there would be no decep- to serve proceedings. tion or confusion because the Weetabix product is only sold in its stores and on its When is identical not the same? website and the British consumers know What does identical mean? Trade mark lawyers like to make this the difference between the – presumably more difficult than it ought to be. According to the dictionary, disdainful – New Zealand Weet-Bix and it means “similar in every detail” or “exactly alike”. Trade mark British Weetabix.

25 INTELLECTUAL PROPERTY · UPDATE

Sanitarium produced an online survey of 500 people in New Zealand who purchase breakfast cereal and had lived in the United Kingdom at some point for at least six months over the past 10 years. Those surveyed were shown the Weetabix trade mark and then asked who is responsible for the product. Thirty five percent of participants responded by naming Sanitarium. The survey was attacked for not adequately reproduc- ing real world conditions, as well as posing questions that put things in the consumer’s mind that would not naturally occur to them. Gendall J did acknowledge however, that it was the only information close to independent evidence before him, and despite not exactly replicating the purchasing scenario, it had to be given some weight. A Little Bit of Britain also argued that the context in which it sold the goods, namely at its British speciality store and online, no deception or confusion would result, because its customers know that it is the British Weetabix. Gendall J rejected that narrow view of the market context because A Little Bit of Britain is not limited to selling the products in that way. The market context was the entire market for cereal. Different infringement test The New Zealand Customs Service offers a regime under the Trade Marks Act 2002 where goods can be detained at the border if Customs suspects they infringe a registered trade mark. Trade mark owners have to register a notice with Customs in order to activate this service. The service aims to act as a deterrent to the importa- tion of counterfeit goods. In this case the Weetabix prod- does not infringe Sanitarium’s trade mark. Given that uct is not counterfeit, but is caught by the Sanitarium Customs can detain products if they “appear” to infringe, trade mark. Gendall J found the detention was lawful. The legal question under the border protection provi- sions was whether the Weetabix trade mark was used Fair Trading Act in such a way as to cause deception and confusion. Sanitarium also alleged that because the Weetabix boxes Gendall J framed the question as whether the average bear the registered trade mark symbol ®, next to the word consumer would see the Weetabix sign on the product Weetabix, this wrongly represents that it is a registered box and be deceived or confused as to whether it is a trade mark in New Zealand. Sanitarium said this is false Weet-Bix product. and misleading under the Fair Trading Act 1986. He found that most people in New Zealand would not Gendall J was not convinced that when purchasing be familiar with Weetabix. The Weetabix product was cereal the public pays much attention to symbols on found to be sufficiently similar to the Weet-Bix trade the box such as ® and ™; ® denoting that a trade mark mark that, given they are relatively low-cost, low-en- is registered and ™ simply indicating it is a trade mark. gagement purchases, there was a significant risk of Consumers were said to be unlikely to place reliance on deception or confusion with the Weet-Bix trade mark. the fact that any trade mark registration may or may not Under the “ordinary” trade mark infringement refer to a New Zealand trade mark registration. provisions, the question is whether use in the course of trade would be likely to cause deception or confusion. Conditional injunction Gendall J found that by a reasonably fine margin, the As the Weet-Bix website says “simple is good”. Gendall proportion of people who would fall into the group of J came up with a practical solution. Sanitarium had being confused or deceived reached the threshold for given consent to Customs releasing the goods pro- trade mark infringement to be made out. vided A Little Bit of Britain over-stickered the Weetabix trade mark. Gendall J therefore granted a conditional Did Customs act unlawfully? injunction where A Little Bit of Britain can import and A Little Bit of Britain argued that Customs acted unlaw- sell Weetabix, but only at its retail store and website fully in detaining its goods because the Weetabix product and only if over-stickered, as Sanitarium had originally

26 UPDATE · PROPERTY LAW  Mosaic Marketing UPDATE PROPERTY LAW

b Cross leases and Re McKay

BY THOMAS GIBBONS

Love and hate of co-ownership are legion, whether It would be nice to be able to say refracted through cross leases, unit that cross leases are loved and titles, shared rights of way, or the hated in equal measure, but that emerging case law pursuant to simply isn’t true. The hate very section 339 of the Property Law much outweighs the love. Cross Act 2007. leases have many detractors, but few supporters. Conversion of a I am close to being a supporter, cross lease or at worst neutral. Cross leases But the issues aren’t solely legal are a reflection of the ingenuity ones. Surveyors don’t like cross of property lawyers: they reflect leases either. And one went as far a clever and cogent workaround as to seek a declaration from the on subdivision restrictions, and Environment Court that a conver- provide a standard-form set of land sion of cross lease titles to fee simple proposed, and as A Little Bit of covenants between neighbours. In titles was not a subdivision under Britain does with British Marmite. small developments, they are often section 218 of the RMA: Re McKay Given the near identicality of preferable to unit titles, especially [2018] NZEnvC 180. A successful Weet-Bix and Weetabix, it is hard to given the lack of clarity in many application would have made the see how a finding of infringement areas of unit titles law (let’s start conversion decision one for owners, would not be made. An offer to with maintenance, or the nature of without local authority input or infringe, but only in a limited way, a body corporate, let alone various interference. is still infringement, and the offer to compliance requirements that are An amicus curiae was appointed, over-sticker is somewhat gracious unhelpful on a small scale). and various points were canvassed, given that Sanitarium is the rightful That said, I also acknowledge including the nature of a cross lease, owner of the Weet-Bix trade mark that times have changed, and cross various criticism of the theory in New Zealand and has been pro- leases are no longer workaround. and practice of cross leases, and ducing its product in New Zealand And when cross leases go wrong, the nature of subdivision under for 90 years. At least peace has been they go very wrong. Unconsented the RMA. Various parties were restored, with both New Zealand and structures, inconsistent leases, a served, including the Ministry for British “bix” lovers being able to buy lack of exclusive use areas, ineffec- the Environment, LINZ, and Local their favourite breakfast cereal. tive governance provisions, dem- Government New Zealand, but As for the detained 108 boxes of olition consents granted without only the New Zealand Institute of Weetabix, they are destined for the notification to the neighbour – the Surveyors (now Survey and Spatial dumpster, being past their use-by issues are many. These issues can New Zealand) got involved. date. ▪ reflect a misunderstanding of cross The Environment Court declined leases rather than a tenure prob- the application, ruling that the Kate Duckworth is a lawyer and lem, but can also be seen to reflect conversion process would inevi- patent and trade mark attorney innate difficulties in binding owners tably involve lines being drawn on specialising in intellectual prop- together, given that New Zealanders a survey plan, and that this aspect erty law. You can find her at often seem uncomfortable with any made conversion a subdivision  www.kateduckworth.co.nz. sort of co-ownership. The challenges under the RMA. The Environment

27 Court also took pains to note that policy level) in terms of their impact on intensification local authorities should not require and redevelopment – though it can be observed that onerous conditions within subdi- any property rights can impact redevelopment, and the vision consents for conversion, as solutions around promoting intensification and avoiding the underlying land use would not sprawl extend far beyond cross leases. be changing, and there might be My view is that cross leases can be seen to fail system- “few, if any, material environmental atically, but really fail in individual cases, rather than implications warranting a full-scale in every case. There are many bad cross lease stories, assessment of the proposal as if it and I’ve heard and been involved in more than a few were a new development” (at [55]). of them – but there are also bad stories with shared This pointed message to consent- rights of way, land covenants, encumbrances, and (of ing bodies warrants their fullest course) unit titles. attention. A Cross Leases Act 2019? For now The noble aim of Re McKay was to seek judicial con- For the meantime, then, owners There are many firmation that conversion of cross leases to fee simple still need the consent of all cross bad cross lease titles would be a simpler process, a decision for owners lease owners, the consent of their stories, and (and their presumably cooperative mortgagees) rather mortgagees, and the consent of I’ve heard and than one in which local authorities should intervene. their local authority to convert been involved The application was unsuccessful. their cross lease titles to fee simple. in more than Further reform is necessary. What I would like for Notwithstanding the decision of the a few of them Christmas is Unit Titles Act amendment. But perhaps Environment Court, it is a brave – but there in the early new year, a Cross Leases Act 2019 would legislature that ignores these issues are also bad be a significant step forward, and a better way to deal forever. As long ago as 1999 the Law stories with with the many and varied problems of cross leases. ▪ Commission expressed its concerns shared rights over cross leases. More recently, var- of way, land Thomas Gibbons  thomas.gibbons@mccawlewis. ious research has reconsidered the covenants, co.nz is a director of McCaw Lewis. He writes and problems of cross leases and found encumbrances, presents extensively on property law and is author them wanting, both (in their own and (of course) of A Practical Guide to the Land Transfer Act 2017 terms) as a form of tenure, and (at a unit titles. (LexisNexis NZ Ltd).

28 LAWTALK 923 · November 2018 ALTERNATIVE DISPUTE RESOLUTION

ALTERNATIVE DISPUTE RESOLUTION Consensus building, Part 3 The CBA participants

BY PAUL SILLS

therefore grow following a series of A Consensus Building Approach (CBA) is only as confidential one-on-one interviews good as its participants. In a majority rules process there where each of the groups will have are few players and most of them take a passive role. the opportunity to suggest others Take our parliamentary process as an example: the who should be involved. Speaker of the House is the in-house rules expert deter- The consensus building group: mining whether parliamentarians are working with the This is the core group of represent- rules. The members of Parliament are expected to play atives that will sit down and do the an active role in any debate – but many probably do not work. If the number of stakeholders because they are controlled by their parties’ policies, is sufficiently small, then this group kept in line by the whips, and generally only one or a may consist of all the stakeholders. few of them will be the spokesperson for a particular However, with public policy type issue. The voters – those members of society responsible engagements and engagements for electing the MPs – are almost entirely passive in this where there is significant public process. Many don’t vote, never mind take part in select interest, the number of stakeholders committees, provide submissions on the issues debated will usually be too large to sensibly before the House or lobby government for change. CBA is about have everyone sitting at the table. CBA is about engagement – getting more people to engagement This group should include a repre- take an active role in identifying and then debating the – getting sentative or representatives from all issues, problem-solving and the creation of outcomes. more people of the key stakeholder groups. They As a broader, more inclusive process, CBA increases the to take an will not only build the consensus probability of good ideas being implemented. active role in solution to the issue, but will also We have touched on some of the roles within CBA but identifying be responsible for reporting back, this article takes a closer look at who the likely members and then and engaging with, their interest will be (see Breaking Robert's Rules by Lawrence Susskind debating group to keep them fully informed and Jeffrey Cruikshank, Oxford University Press, 2006). the issues, and get feedback. They will also The Convenor: This role was discussed in Part 2 problem- “sell” the consensus agreement to (LawTalk 922, October 2018). The convenor is the person solving and the group at the appropriate time. who first considers whether CBA is possible for a par- the creation This group will be responsible for ticular problem or dispute. They may do so off their of outcomes. setting any ground rules, identifying own bat or may be appointed by a representative body who has a mandate to enforce change – such as a local council or other public body. The convenor may also do the initial assessment of the issue and identify the initial participants. Legal Accounting Bureau · Save time and money Kathy Kell Stakeholders: The initial stake- provides comprehensive, · Always know your trust account [email protected] accurate, efficient and timely is balanced and your month end holders (interest groups) will be certificates are filed on time Ph 09 444 1044 management of solicitors’ trust Fax 09 929 3203 accounts. · Our service is completely secure identified by the convenor or and confidential www.accountingbureau.co.nz assessor. In turn, these interest Outsource the management of · Trusted professionals with over your firm’s trust account. Either 20 years’ experience groups are likely to identify others come to us or we can come to · 72 law firms currently use our Powered by juniorPartner. who should be included in the pro- you remotely. services Practice Management software you can trust. cess – the list of stakeholders will

29 November 2018 · LAWTALK 923

qualified independent professional. For smaller or less controversial processes, the convenor could also carry on as chair or facilitator. That is probably seen more often when CBA is used in the private sector than the public sector. The public sector tends to keep the different roles separate. A record-keeper: CBA works best if there is a written summary of each of the meetings of the group. This keeps everybody focused on the discussion and allows the partic- ipants to see progress. The record taker has two key roles: (1) during each meeting, to record the key concepts in simple language so they are there as a checklist for the group to keep them focused on the dis- cussion for that meeting, and (2) to provide written summaries of each meeting that record major points of agreement. The group should peri- odically review the summaries to ensure consistency and agreement moving forward. Sub-committees: If the group where experts may need to be engaged, reporting to, is large or the problems complex, and back from, their interest group and, of course, be then forming sub-committees may involved in developing options for consensus outcomes. be a useful option. These com- This group is responsible for not only the outcomes but mittees can take on a number of the process for getting to those outcomes. roles from housekeeping (budget Committee: If the consensus building group is too committee) through to fact-finding large and unwieldy, then the process may benefit from and reporting back to the group a sub-committee that can help steer the process. To at large on particular aspects of honour the consensus building nature of the group, the problem. such a committee must be selected by the full group Expert advisors: These are and should be made up of representatives from those experts who take on a bipartisan interest groups that are critical to resolution. role of advising the group as a whole A chairperson: Contrary to what people may think (or a sub-committee if one is formed of with CBA – effectively a talkfest spinning in ever for a particular issue). The idea is to decreasing circles – the process requires a chairperson. provide shared expert information This might be the convenor. If there is a committee, the on particular aspects of the problem chair should be a member of it. Ideally the chair should This group so that the entire group can move hold widespread respect amongst the various interest should include a forward as one. This gets the group groups and should not be seen as partisan. The chair- representative or past competing expert information person is not there to come up with the answers and/ representatives and avoids interest groups holding or manage the process (unlike for example, a majority from all of the onto expert evidence that they have rules meeting process). Instead, the chairperson is there key stakeholder provided that happens to support to be the advocate for CBA – for the process itself. The groups. They will their particular viewpoint. ▪ chair has to be the biggest supporter of the process and not only build be the glue that holds everyone together. the consensus Paul Sills  paul.sills@paulsills. The facilitator: This person is the manager of the solution to co.nz is an Auckland barrister process and the discussion. The role of the facilitator the issue, but and mediator. He specialises in or mediator is to keep the group focused and to ensure will also be commercial and civil litigation that the process stays on track. The facilitator may come responsible for and is an AMINZ Mediation Panel from within one of the interest groups or be a suitably reporting back member.

30 LAWTALK 923 · November 2018 ALTERNATIVE DISPUTE RESOLUTION

ALTERNATIVE DISPUTE RESOLUTION Intellectual Property and Alternative Dispute Resolution How not to be “stultified by the dead hand of unresolved litigation”

BY MARK KELLY

also claimed to be the inventor. In This article is about why alternative dispute 2006, the case was the subject of resolution (ADR) methods, such as arbitration, expert a decision by the English Court of determination, and mediation, are so apt for intellectual Appeal in IDA Ltd v The University property disputes, and how we in New Zealand could of Southampton [2006] EWCA Civ improve in this field. 145, 2 March 2006. In delivering The American humourist Ambrose Bierce described a the Court’s decision, Lord Justice lawsuit as: “A machine which you go into as a pig and Jacob raised significant concerns come out of as a sausage.” about the litigation of such cases, This description can be particularly apt for IP disputes stating: fought through the courts. Such disputes can be complex, “Parties to these disputes sophisticated, and expert-heavy. Consequently, they can should realise, that if fully be expensive. A compounding problem is that such dis- fought, they can be protracted, putes can be painfully slow – and delay can be kryptonite very very expensive, and emo- to innovation and market leadership. tionally draining. On top of The following are statistics cited by the World that, very often development Intellectual Property Organisation (WIPO) on the dura- or exploitation of the invention tion and cost of patent litigation in UK and American under dispute will be stultified courts in 2006: by the dead hand of unresolved litigation. That may be the case Average length Average costs here: there has not yet been UK First instance: 12 months €550,000-1,500,000 any exploitation by either side, Court of Appeal: 12 months €150,000-1,500,000 some 8 years after the original Supreme Court: 24 months €150,000-1,500,000 PCT application… This sort of dispute is particularly apt for US First instance: 24 months US$650,000-5,000,000 early mediation.” Appeal: 12+ months US$150,000-250,000 The stakes can be very high. Each month of exclusivity for a pharma- (WIPO Paper by Ignacio de Castro and Alvaro Loureiro ceutical drug can be worth millions. Oliviera, 27-28 November 2012). Moreover, the life cycles for tech- nical innovations are becoming Delay can be a particular concern in patent litiga- shorter and shorter. tion, given that patents are, of course, of only finite And these are the statistics cited duration. This point is well illustrated by the UK’s by WIPO (in the source above) on “case of the cockroach trap”. In 1998, a patent appli- the duration and cost of trade mark cation was made for a cockroach trap invented by a litigation in UK and US Courts in professor at Southampton University. But ownership 2006: of the patent was contested by another party which

31 ALTERNATIVE DISPUTE RESOLUTION

Average length Average costs UK First instance: 10-12 months £100,000-500,000 Court of Appeal: 12 months £50,000-250,000 Supreme Court: 24 months Not stated. US First instance: 2-5 years US$350,000-1,500,000 Appeal: 1-2 years Not stated.

New Zealand IP disputes fought through the courts can take at least as long to dispose of. Lucas v Peterson was filed in the High Court in February 1999, and the Supreme Court decision was issued over seven years later, in March 2006 (Lucas v Peterson Portable Sawing Systems Ltd [2006] 3 NZLR 721 (SC). TheGeostel litigation has been ongoing since 2005 (Oraka Technologies Ltd v Geostel Vision Ltd [2018] NZHC 769). Another issue with the economics of IP litigation is that damages can be extremely difficult to quantify. As Victoria University Associate Professor Susan Corbett has stated: “Arguably, an intellectual property right can be precisely valued in only two situations: when it expires, and when a Court rules that it never existed in the first place. In both instances, the value of the intellectual property right is zero.” (“Mediation of Intellectual Property Disputes: A Critical Analysis”, NZBLQ, March 2011, citing: Kevin Lemley “I’ll Make Him an Offer He Can’t Refuse: A Proposed Model for Alternative Dispute Resolution in Intellectual Property Disputes” (2004) 37 Akron L Rev 287 at 291). The courts can also be conservative in their approach such as a scientist, an engineer, or to damages in IP cases. An example of this can be seen a marketing expert, to help resolve in the New Zealand decisions on additional damages their dispute. for breach of copyright. In the G-Star case (Jeanswest Arbitration and expert determi- Corporation (New Zealand) Ltd v G-Star Raw C.V. [2015] nation also allow parties latitude to NZCA 14), the Court of Appeal set out a schedule of design their own procedural rules, additional damages awards cases in New Zealand. It and determine the time and place referred to only one award that was over $20,000. of any hearing to suit themselves. IP litigation is also an uncertain beast. In New Zealand This can be a huge aid to speedy we do not, of course, have a specialist IP bench. A judge dispute resolution. may be coming to the field fresh, which can be challeng- Arbitrations and expert deter- ing. And winning a case at first instance is no guarantee minations are generally harder to of ultimate success. In the US, appeals are successful in appeal, and so give greater finality. over 30% of IP cases (see: Eisenberg, Theodore, "Appeal Arbitral awards, in particular, can Rates and Outcomes in Tried and Nontried Cases: Further The stakes can also have arguably greater interna- Exploration of Anti-Plaintiff Appellate Outcomes" (2004) be very high. tional resonance, and enforceability Cornell Law Faculty Publications Paper 359, p672). I Each month of – so important when so many IP suspect that a similar statistic applies here. exclusivity for a disputes are multi-jurisdictional. pharmaceutical So, through arbitration and How can ADR help? drug can be expert determination, parties to IP So, there are some particular issues with litigating IP worth millions. disputes can potentially achieve cases through the courts. How can ADR make a differ- Moreover, the better-informed decisions, which ence? Why is ADR so apt for IP cases? life cycles are obtained more quickly, and Arbitration and expert determination allow parties for technical which are more robust. the luxury of choosing their own dispute resolver, who innovations Mediation gives parties the has relevant expertise. This is incredibly significant. And are becoming chance to settle IP disputes. Settling the possibilities here extend beyond legal expertise. shorter and IP disputes enables parties to avoid Parties can also agree to appoint a subject matter expert, shorter. the costs, delays, marginal returns,

32 ALTERNATIVE DISPUTE RESOLUTION

Lord Neuberger, then President Here in New Zealand we may of the UK Supreme Court, cited not be not so strong on this. While a 2007 UK survey, ADR is well-used in many fields of “which reported that 47% of dispute, anecdotal evidence and respondents involved in com- informal surveys would suggest mercial litigation admitted that it is not so well-used in IP dis- that a personal dislike of the putes. Part of the problem here may other side had been respon- be attitudinal. I have heard local IP sible for driving them into litigators say things like: “but we costly and lengthy litigation”. need our precedents”, “why medi- (From address by Lord Neuberger ate when I can negotiate?”, and “I to the Civil Mediation Conference, would only mediate if I am against 12 May 2015); a lay-litigant”. To the precedent • It provides the opportunity for point, I would note that ADR has catharsis. For many parties, a been flourishing in construction, mediation will be the only chance insurance and general commercial they get to have their say, short litigation for decades, but the law of trial; and reports are still full of cases in these • Mediation gives parties to IP fields. The truly knotty cases can, disputes a particularly good will, and often should, be resolved opportunity to look at matters by IPONZ Commissioners and the in a practical, problem-solving courts. The other points I hope are way. Leading UK IP mediator Jon answered above. Lang recommends that samples We also have infrastructure be brought along to mediations, issues here. In distinction to many and says that: jurisdictions (including the UK and “Many cases have been set- Australia) we do not have a medi- tled with parties looking over ation scheme attached to IPONZ. products bearing an allegedly Until very recently (and more on infringing trade mark, or this in a moment), there has been no and uncertainties of litigation. Settlement can also which are said to infringe ready way, beyond word of mouth, unlock a far broader range of resolution options. The another’s design right, with to find IP ADR practitioners. following is a non-exhaustive list of what a settlement parties suggesting changes What to do? The converted should agreement can achieve in an IP dispute that a determi- that could be made to resolve proselytize if folk will be kind native process cannot order: the dispute.” enough to listen/read. IP litigators • Cross-licences; (in How to Master Commercial should take the plunge, or take it • Agreements as to territories for sale; Mediation, Richbell et al, more often (your clients will thank • Trade-offs between competing IP rights; Bloomsbury, 2015, at p207) you for it). IPONZ has given some • Negotiated royalty rates; consideration to a mediation referral • Agreements not to sue, and agreements not to oppose; How we in New Zealand option, and it would be tremendous • Agreements to changes in the IP rights to be claimed: can improve in this field to see that become a reality. And the eg, classes for a trade mark, narrowing of claims for Worldwide, more and more IP Arbitrators’ and Mediators’ Institute a patent; disputes are being resolved using of New Zealand has now established • Agreed redesigns, rewordings, reworkings; and ADR. IP showed the highest growth an IP Dispute Resolvers List, which • Apologies. in mediation use of any specialty can be accessed via its website. In fact, the opportunities for “value-add” in settlement area in the US between 1997 and One of the wonderful things are probably richer in IP than in any other field of com- 2011 in Professor Tom Stipanowich’s about New Zealand is that when mercial litigation. US Fortune 1000 survey, published we do commit to things, we can do At this point, some might say: “Can’t we achieve all in the Harvard Negotiation Law so quickly, and in a nimble, creative of that through negotiation? Why do we need to medi- Review. In the UK, Herbert Smith way. I would suggest that we can and ate?” But research shows that mediation can greatly Freehills has reported a growth in should commit to improving the use increase the chances of achieving settlement, and of international IP arbitration. WIPO is of ADR in IP here. Who really wants such settlements being lasting and effective. There are reporting generally increased use of to be stultified by a dead hand? ▪ also intangible benefits to mediation. In particular: its arbitration, expert determination • Mediation can be the best way to repair relationships. and mediation services. WIPO has Mark Kelly  mark.kelly@ A lot of hard-nosed lawyers scoff at the importance also been partnering with intellec- parkchambers.co.nz is a barris- of relationships in commercial disputes. They are tual property offices worldwide to ter and commercial mediator at wrong to do so. In a speech on mediation in 2015, promote ADR schemes. Auckland’s Park Chambers.

33 PRACTISING WELL November 2018 · LAWTALK 923

PRACTISING WELL Talking about mental health

BY GAYNOR PARKIN AND DR ALLANAH CASEY

In the October issue of LawTalk we “part of a lawyer’s ethical duty of began a series of articles focusing competence”. on mental health issues in the legal profession. Sarah Taylor led with Stress significantly ▴ Dr Allanah Casey a personal story about some of her affects brain function experiences and this month registered What we know clearly from psycho- clinical psychologists, Gaynor Parkin logical research is that stress signifi- and Dr Allanah Casey, write about cantly affects the functioning of our mental health, wellbeing, and com- brains, driving our brains to perform petence in the legal profession. more from emotion centres (pre- dominantly the amygdala) and less from the rational decision-making The first study investigating centres (our ‘executive functioning’ wellbeing specifically in the legal located in the prefrontal cortex). As field was published in 1957. Just over a result of stress and psychological 60 years later we continue to see distress, we are less able to think higher than average rates of mental clearly, approach situations ration- ▴ Gaynor Parkin health difficulties among legal pro- ally, connect thoughts and ideas fessionals – notably problematic effectively, and remember and levels of cortisol that accompany alcohol use (between 21 and 36%), integrate information well. It’s not chronic stress. This oversupply of depression (28%), and anxiety (19%). hard to imagine how these changes cortisol lowers our immune system, These higher rates of psychological in brain functioning begin to nega- raises blood pressure, increases stor- distress begin as early as law school, tively impact the performance and age of abdominal fat, and reduces and are most notable for lawyers efficiency of lawyers. cognitive performance. in the first 10 years of their career, How do we turn the tide on these To limit these harmful effects, and those in private sector firms. negative statistics? Below are three it’s essential to manage our stress Aside from mental illness, data also important, and often neglected, effectively. shows that a significant proportion areas we can impact immediately. What can you do now? of lawyers are highly stressed, and • Take time out. Oscillating between have lower levels of life and work Physical Health periods of high performance and satisfaction. Not only do the deficits in wellbe- taking time to recover is critical Not only do these high rates of ing noted above effect our mental for maintaining performance mental distress mean that law- health and performance, they also and preventing chronic stress. yers are suffering more than their impact upon our physical health, Taking a break away from your counterparts in other professions, with rates of stress-related physical desk, stopping for a non-work but they have the potential to illness such as heart disease also related chat with a colleague, or significantly impact on lawyers’ higher in the legal profession. One spending your commute listening competence and performance. of the crucial mechanisms by which to some music or a podcast are The impact of these challenges on stress negatively impacts our phys- just a few ways you can give your performance is so significant that ical health is through an oversupply brain an opportunity to unplug, the National Task Force on Lawyer of cortisol. You’ve probably heard of and therefore reset before you Wellbeing (established by the cortisol as a stress hormone, and the face the next challenge. American Bar Association) goes so problem is that our bodies are not • Prioritise exercise. Whether it’s far as to call maintaining wellbeing well equipped to manage the high heading out for a lunchtime

34 relaxation exercises – whatever tech-free routine works well for you. • Set up screen-free zones, for example, your bedroom. Don’t watch TV in bed, and leave your laptop, smartphone, and tablet in a different room when you go to bed to prevent the urge to check messages late at night or first thing in the morning, and avoid disruptions to your sleep. What can your team do in the office? • Experiment with periods of time in the day when you go offline – perhaps for an hour or two in the morning when you focus on tasks that require your full attention. You could alternate times within the team to make sure someone stroll, cycling to work, or hit- plugged in and available has costs for our wellbeing. is always available for anything ting the gym, embedding some Checking emails from home? Taking calls on days off? urgent. movement into your everyday life Leaving court to a stack of emails? All of these pressures • Simplify technology use while makes a big difference. In terms can ramp up our stress levels, and make it more difficult doing complex work tasks – espe- of our health, Frank Hu, Associate to take the recovery breaks we need to ensure our brains cially tasks requiring learning, Professor at the Harvard School keep functioning well. concentration, or creativity. Put of Public Health, states that “the What can you do now? your phone away in a drawer or single thing that comes close to • Plan a tech-free evening, day off or an entire weekend. bag, or close background web a magic bullet, in terms of its Or really push your limits and take a holiday, leaving pages. strong and universal benefits, is your work phone and other devices behind. Create • Turn off email and message alerts exercise.” This statement holds a ‘point person’ for any urgent matters to allow you and set up an automatic reply true for both our physical and to take this break. letting the message sender know mental health. • Take time to connect without interruption. Going on you will get back to them within a date night with your partner, or sitting down to a a certain timeframe. Digital Health family meal are great times to leave your devices off. • Set up screen-free zones in the Digital technology forms an impor- Your relationships will thank you for it. office, especially in areas where tant part of how lawyers work, but • For best sleep quality, avoid devices for at least one discussion and collaboration are like in other professions the call of hour before bed. Turn off screens, have a shower, a focus. modern technology to always be read a book (ideally on paper), practise some • Run screen-free meetings.

35 PRACTISING WELL November 2018 · LAWTALK 923

Support one another issues arise. Think about how this What is Well-Being image credit: One factor that has contributed to reduced wellbeing might work best for you and your The Path to Lawyer Well-Being in the legal profession is a culture of not discussing team members – supervision  www.lawyerwellbeing.net mental health difficulties. The National Task Force could be with a peer or senior on Lawyer Wellbeing describes this culture, stating colleague, within or outside of Further reading “many in the legal profession have behaved, at best, your organisation. The Prevalence of Substance Use and as if their colleagues’ well-being is none of their busi- Each of us has an important role Other Mental Health Concerns Among ness. At worst, some appear to believe that supporting to play in supporting our personal American Attorneys, Krill, Johnson, well-being will harm professional success.” We know wellbeing, and the wellbeing of & Albert, 2016 clearly from the research that the sentiment expressed in those around us. Small steps taken Suffering in Silence: The Survey that second statement is untrue, with greater wellbeing consistently build into big changes. of Law Student Well-Being and the associated with improved individual and organisational Let’s not wait another 60 years to Reluctance of Law Students to Seek productivity. change these statistics. ▪ Help for Substance Use and Mental What can you do now? Health Concerns, Organ, Jaffe, & • Seek support when you’re struggling. Discuss what’s References Bender, 2016 going on with a trusted colleague, friend, or family Report of the National Task Force on Employee Positive Emotion and member. You could also try your organisation’s Lawyer Wellbeing (2017). The path Favorable Outcomes at the Workplace, Employee Assistance Programme or your GP if you to lawyer wellbeing: Practical rec- Staw, Sutton and Pelled, 1994 want an outside opinion. ommendations for positive change. • Talk about wellbeing. The most powerful way to change the culture of silence is to begin discussing Gaynor Parkin and Dr Allanah Some useful resources: the elephant in the room, making these conversations Casey are registered clinical • www.mentalhealth.org.nz commonplace and destigmatising the topic. If you are psychologists at Umbrella, an • www.depression.org.nz in a senior or leadership position, your comments are organisation focused on providing • www.wellplace.nz likely to be even more powerful, setting a model for specialist wellbeing and mental • www.ruok.org.au others to follow. health training and support. • www.lawsociety.org. • Establish professional supervision relationships.  www.umbrella.org.nz nz/practice-resources/ These relationships can provide an opportunity to practising-well regularly (eg, monthly) review professional perfor- If you would like to contribute to a Need to talk? Free call or text mance, and any related personal challenges. For future article in this series or have 1737 any time for support from all of us there will be times when our personal life a topic you would like covered, a trained counsellor. impacts our work, for example if you have experi- please contact Sarah Taylor: Lifeline Aotearoa 0800 54 33 enced a recent loss or if a particular case ‘pushes your  [email protected] 54 (0800 LIFELINE) or free text buttons’. Discussing these issues and formulating a HELP (4357). plan for managing them with someone else helps Illustrations © Matthew Johnstone Suicide Crisis Helpline 0508 82 to prevent blind spots and negative impacts on our From I Had a Black Dog, pub- 88 65 (0508 TAUTOKO). work. The establishment of this type of relationship lished by Pan Macmillan  www. Samaritans 0800 726 666. also reduces barriers to accessing support when matthewjohnstone.com.au

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WELLINGTON High Court Building, Kate Sheppard Place entrance Where the world is going TEL 04 473 6202 E [email protected] waikato.ac.nz/go/LLM www.lawsociety.org.nz/law-library CREATING A JUST CULTURE November 2018 · LAWTALK 923

CREATING A JUST CULTURE How is the Gender Equality Charter working out for legal workplaces?

BY NICK BUTCHER

The New Zealand Law Society introduced the already exists? Gender Equality Charter to the legal profession “You could cynically say we don’t need in April this year. to do anything and we have ticked a box, The Charter is a set of commitments aimed as we are doing most things it requires: at improving the retention and advancement there is no risk of us not complying. But of women in the legal profession. Signatories we thought we should show we are willing have two years to meet the commitments and support gender equality, which we do,” which include implementing unconscious she says. bias training, conducting annual gender It was interesting to note it was a young pay audits and closing the gender pay gap, male intern who brought coffee and bis- encouraging flexible work conditions, and cuits into our boardroom meeting, which adopting equitable briefing and instruction prompted the question of what was it like practices. when Ms Dyhrberg was starting out as a Over 80 legal workplaces have signed up, young lawyer in those early days of her covering over 2200 lawyers. The Law Society’s career. goal is to reach 100 by the end of year. “I was an intern at a law firm in Dunedin So how is it going for legal workplaces that while I was at university. Back then it have signed up? would invariably have been the young LawTalk writer Nick Butcher, caught up women who would have been asked to with two firms that are among the many take the notes, do the administration and signatories. make the coffee. It would have been seen The Charter as demeaning or beneath a young male Dyhrberg Drayton – is a set of lawyer to have been asked to do that, but first cab off the rank commitments that is not how anyone feels about it here,” aimed at she says. Dyhrberg Drayton in Wellington was the improving the So times have changed. The young male first legal workplace to become a signatory retention and intern’s appearance didn’t appear staged to the New Zealand Law Society’s Gender advancement for the sake of the story. He certainly wasn’t Equality Charter. of women being punished and it just seemed normal The employment law firm has two in the legal – and why shouldn’t it? partners – Steph Dyhrberg and Johanna profession... Drayton. It’s currently a ten-person work- Over 80 legal Why unconscious bias place comprised of six women and four workplaces training is valuable men. have signed The legal sector has been confronting many “I saw the email about the Charter and up, covering serious behavioural issues this year, par- hit send so fast my fingers were smoking,” over 2200 ticularly sexual harassment and bullying in Ms Dyhrberg says. lawyers. The Law the workplace, which have made headlines Some might think that there would be Society’s goal is in the media. little need for the Charter in a firm that is to reach 100 by Unconscious bias training in the work- managed by two women, as surely equality the end of year. place has become a big issue. Learning

38 LAWTALK 923 · November 2018 CREATING A JUST CULTURE

about one’s own unconscious biases could Ms Dyhrberg is often invited on to discussion panels and says be quite confronting for many people who increasingly, being aware of the make-up and questioning who are unaware of the impact their behaviour is on them is important to her. could be having on the career development “An all-white person panel can’t speak compellingly about of other colleagues. diversity. These days I look at whether there’s a diversity of culture, Ms Dyhrberg had a reflection to offer background and outlook on these panels before I decide whether about this. to be on them,” she says. “The clue is in the name. People are not conscious of their unconscious biases, Gender pay gap otherwise they’d be called conscious Closing the gender pay gap is a challenging area of the Gender biases. I used the Harvard University Equality Charter. self- assessment tool which covers ste- Steph Dyhrberg says her firm has previously had men and reotypes and prejudices (at www.implicit. women working at similar levels and has had to look at whether harvard.edu/implicit/takeatest.html). I did what they’re being paid is fair. the gender test so I could recommend it “We’ve looked at it to be sure we are not paying anyone a to other people. I expected I would have different amount without a really good some unconscious bias but it said I didn’t reason, such as experience. At the moment have any discernible gender bias. I haven’t we don’t have people of different genders had the courage to do the racial bias test or of different ethnicities working at the yet! I know that being raised in the wilds same level, to compare their pay,” she says. of white Western Southland, I have some But what if the firm was hiring a new unconscious bias around race. I detect it staff member and a female candidate sometimes in myself. I’d be a hypocrite wasn’t pushing hard on pay, whereas the not to talk about this,” she says. male candidate was? Steph Dyhrberg remembers one such That has sometimes been her experience living example in Auckland when she as an employer, in that women sometimes was catching a taxi late at night after a don’t push for the higher pay packet. function. “When someone is bargaining hard for “I went to a taxi rank to find a taxi. The themselves and someone else isn’t, it can driver turned around as I went to open be a challenging situation to manage. the back door and I saw it was a dark “We would look at market data, scarcity skinned man wearing a turban. For just of skills. We would also have to look at a millisecond I hesitated and thought what we are prepared to pay and in this ‘will I be safe?’ I thought, there’s a slice situation ask why we are prepared to pay of unconscious bias. I thought that was They’re not him that little bit more. Is it because he shameful and ridiculous, so I got into the things to be is earning that much in his current job or back seat of the taxi, said ‘good evening’ ashamed of. is he simply saying that? He might think and off I went. But my point is, if and when What we should he is worth it and is bargaining with you, these moments surface for you, be brutally be ashamed of is which can come across as ‘this person is honest with yourself.” refusing to face a go-getter, and let’s pay him what he is those issues. asking or close to it’,” she says. Be brave and courageous Lawyers are But sometimes with potential employees Ms Dyhrberg says the Gender Equality generally brave who are women, she says they can come Charter unconscious bias tools should and courageous across as ‘just pleased to be possibly get- make a person aware of this behaviour. people when ting the job.’ “They’re not things to be ashamed of. fighting battles “A woman might have a bit of imposter What we should be ashamed of is refusing for others. We syndrome going on, hasn’t been paid well to face those issues,” she says. need to be in her previous job and is being honest “Lawyers are generally brave and cou- brave enough with you. A female candidate may not rageous people when fighting battles for as a profession bargain for higher pay. You have to make others. We need to be brave enough as a to bring these sure you are not being unduly influenced profession to bring these issues out and issues out and by things which are not sustainable, jus- confront them.” confront them. tifiable or fair,” she says.

39 CREATING A JUST CULTURE

Could a man make partner at her firm? While the business started off as an all- women law firm, Steph Dyhrberg says there is no reason why a man could not make partnership. “There’s absolutely no reason why a male couldn’t make partner. As it happens our senior associate is a woman so currently she would be a bit closer to that path, if that is what she aspires to,” she says. Ms Dyhrberg is taking responsibility for reporting on progress and providing exam- ples of how the Gender Equality Charter is working for the firm to the New Zealand Law Society. “As part of our professional development for our staff, we’ll be watching the Law Society’s unconscious bias webinar as a team. We’re encouraging everyone to complete the online bias test,” she says. Other initiatives Dyhrberg Drayton will focus on include ensuring all lawyers have equal opportunity for Continuing Professional Development and an equal share of opportunities for court work or to junior in court. How the Charter is working for Avid Legal The team Five other lawyers are employed at Avid Avid Legal is a medium-sized practice in Legal, four of them women. Judith Harper Wellington. They’re corporate, commercial is a Principal and senior lawyer and she and tech law experts, and the directors joined the firm in January on a flexible are Bruno Bordignon and Murray Whyte. employment arrangement, after being a The firm committed to the principles partner in a large firm previously. of the Gender Equality Charter not long “Judith works flexibly from Hawke’s Bay after it was released. Flexibility with work four days a week. This is something that conditions and unconscious bias training works well for her,” Mr Whyte says. are two of the components that really He says a new male director has recently resonated with the firm. joined Avid Legal and will work about 80% “We signed up with the intention that of the week. it was speaking to a lot of the things that “That’ll give him the ability to have a we already did. For example, we believe morning or afternoon off so that he can that flexible working conditions are not drop off or pick up his children from just something for appearance or women school,” he says. only. It’s also not something that should be Flexibility is part of the fabric at the firm seen as a career negative as it can actually and is also afforded to junior staff. enhance. We are also a firm that has two “Some of our staff like to get a personal male directors so being aware of uncon- training session in at the gym and pick up scious bias and creating a good culture that time later in the day. The focus is on is of utmost importance to us,” Murray getting things done, not being chained to Whyte says. a desk clocking up hours,” he says.

40 CREATING A JUST CULTURE

such ‘as are we making this decision based on the right reasons?’ or ‘is there something driving our decision because of our make-up?’ Gender diversity is one aspect, ageism another. For us it’s about keeping a check on these issues so that we create and sustain a culture in the firm that people want to be part of,” he says. One of the commitments of the Gender Equality Charter is to conduct annual pay audits and close gender pay gaps. So how does Avid Legal address that contentious issue? “For small firms that is, on one hand, quite easy because there isn’t a lot of employees to deal with. But on the other hand it is challenging because often there are not formal pay bands. We look at the remuneration we offer and ask whether that is justified for the role and level of experience and that is regardless of whether the person is male or female. “Generally we start at what is the market pay for a specific level of work and experi- ence and it then progresses to negotiation on an individual basis. It’s quite hard for small firms because they often don’t have the rigidity of pay levels as a person As mentioned, Avid Legal has already advances in seniority. But the advantage embedded flexibility into the culture of the is flexibility because every situation is firm but Mr Whyte says unconscious bias unique,” he says. training was also something that stood out as needing to be addressed. ‘The Bench’ concept Avid Legal introduced a flexible working What ‘unconscious bias’ concept entitled ‘The Bench’ to the firm. means to Murray Whyte It’s a way for experienced lawyers and Avid Legal initially utilised the Continuing Gender paralegals that cannot work on a more Legal Education webinar on ‘unconscious diversity is permanent basis to be called upon for bias,’ which Mr Whyte says they found one aspect, specific legal tasks. helpful. ageism “It’s a pool of flexible lawyers who are So what does he think about when another. For available to work on a secondment or those two words, ‘unconscious bias’ are us it’s about project by project basis for their clients. said aloud? keeping a Typically they’re parents who are trying to Mr Whyte uses the analogy of the check on balance other parts of their lives and more best-selling book by Daniel Kahneman, these issues at the senior end of their career. They’re Thinking, Fast and Slow, which offers expla- so that we people who cannot fit into that rigid 40 nations for many human traits including as create and plus hour week,” he says. to why human beings have biases. sustain a Mr Whyte describes the Gender Equality “We automatically jump to the pre- culture in Charter as a great learning process. sumptions that we have because of the the firm that “We’re on the journey and it’s giving us context in which we have grown up in. So people want a framework to work towards a really good slowing down and thinking about things to be part of future. It’s very worthwhile,” he says.

41 CREATING A JUST CULTURE November 2018 · LAWTALK 923

CREATING A JUST CULTURE

Update Culture Manager role established at Taskforce focused on Law Society culture change Kerrin Humphrey has joined the New Zealand Law Society in the The Law Society’s Culture Change MinterEllisonRudd Watts), John role of Culture Manager. This new Taskforce met for the first time Billington QC (Auckland, Shortland position will work closely with the during September on its commit- Chambers), Lindsay Butler (Waikato, Culture Change Taskforce. Kerrin ment to ‘drive and guide systems practice manager), Jenny Cooper QC Humphrey joins the Law Society and culture change within the legal (Auckland, Shortland Chambers), from the New Zealand Defence Force community’. Allanah Colley (Wellington, Judges’ where she was a strategic adviser The Taskforce was one of clerk), Mark Cunliffe (Wellington, on OP RESPECT, the Defence Force’s the Law Society’s initiatives in Takeovers Panel counsel), Carmen programme to eliminate harmful response to its Legal Workplace Franich (Auckland, legal executive), and inappropriate behaviour. Environment Survey which was William Fussey (Auckland, EY Law released in late May. The survey Ltd), Roshni Kaur (Auckland, bar- What will your showed nearly one in three female rister, Andrew Gilchrist Barrister), role involve? lawyers has suffered sexual harass- Stephanie Mann (Christchurch, My key responsibilities will be as a ment at work and more than half Duncan Cotterill), Emily Morrow strategic adviser to the Law Society’s of all lawyers have been bullied in (Auckland, consultant to lawyers), Culture Change Taskforce. I will be the workplace. Jared Ormsby (Christchurch, barris- implementing a programme of work New Zealand Law Society ter), Emma Priest (Auckland, barris- that will support other initiatives President Kathryn Beck is chairing ter, Blackstone Chambers), Jonathan in the legal community that aim to the Taskforce. Robinson (Wellington, Deputy create a healthier, safe, respectful “I feel a huge personal disappoint- Chief Parliamentary Counsel, and inclusive work environment ment as to what has occurred in the Parliamentary Counsel Office), Mary for all our people. I will be engag- legal profession and I’m personally Scholtens QC (Wellington, Stout ing with our leaders to encourage committed to leading the change Street Chambers), Josie Te Rata them to stand up and speak out required. (Wellington, Judges’ clerk). about behaviour that doesn’t align “My term as President ends “The quality of the Taskforce with our values and using their early next year and chairing this members gives me great confi- knowledge to develop practical Taskforce will assist with continuity dence that the cultural change tools and resources to help them and enable me to see this critically we are committed to in our legal do this. I will also be working on important issue through,” she says. community is within our grasp. We regulatory matters that require a Ms Beck says she had been can and will achieve the building of sensitive approach and ensuring delighted with the level of interest a culture within the legal profession that when we respond we do so in in the voluntary Taskforce positions, that is healthy, safe, respectful and a people-focused manner. with more than 80 applications inclusive and which we can all be received. proud of,” Ms Beck says. Could you tell us The Taskforce comprises 17 mem- “I’m pleased that as we get into something about bers of the legal profession from action as a Taskforce, most of the your background? across the country representing a legal profession is also in action in I have travelled a fair amount, but I range of experience and fields of law. leading change at a workplace and am a born and bred Wellingtonian Of the 17 there are five non-lawyers, personal level.” and currently live in Maymorn including a legal executive and a The Taskforce has been estab- (Upper Hutt) with my fiancé, two practice manager. lished for an initial term of three teenage step sons, two dogs, eight As well as Ms Beck, the mem- years and will deliver an initial draft sheep and an ever-increasing bers are: Julia Batchelor-Smith strategy and action plan to the Law number of rabbits! Prior to coming (Auckland, Senior Associate, Society by 30 November 2019. to the Law Society I worked for the

42 LAWTALK 923 · November 2018 CREATING A JUST CULTURE

Keeping Track: Some measures at 11 October 2018 compared with 13 April 2018

New Zealand-based lawyers: 13,254 Women: 6725 (50.7%) (up from 50.3%) Men: 6529 (49.3%) Lawyers in multi-lawyer firms:7821 Partners and directors: 2906 Women partners & directors: 942 (32.4%) (up from 31.3%) Men partners & directors: 1964 (67.6%) Employed lawyers: 4915 Women employed lawyers: 3016 (61.4%) (up from 61.3%) New Zealand Defence Force for Men employed lawyers: 1899 (38.6%) three years as a strategic advisor In-house lawyers: 2991 on OP RESPECT, their initiative to Women in-house: 1843 (61.6%) (no change) eliminate harmful and inappro- Men in-house: 1148 (38.4%) priate behaviour, including sexual Barristers in practice: 1402 violence. Before that I was a police Women barristers: 557 (39.7%) (up from 38.9%) officer for 17 years. Throughout my Male barristers: 845 (60.3%) career I worked in a number of Queen’s Counsel in practice: 121 different branches but some of the Women QCs: 23 (19.0%) highlights were deploying to the Male QCs: 98 (81.0%) Solomon Islands for six months Signatories to Gender Equality Charter: 84 (up from 4) in a mentor/capacity building role, Signatories to Gender Equitable Engagement and Instruction Policy: community policing, alcohol harm 41 (up from 33). reduction, child protection and adult sexual assault. Regulatory Working What issues will you be focusing on? Group finalising report Along with the rest of the Taskforce I will be focusing on helping the legal The New Zealand Law Society about improvements to the current community to eliminate harmful Regulatory Working Group is in regulatory framework, they should and inappropriate behaviour from the process of finalising its report, contact the group through its email the workplace. This will involve which identifies and proposes address workinggroup@lawsociety. understanding our environment, improvements to the legal profes- org.nz. where, when and what type of sion’s current regulatory framework, A copy of the draft report may be things are happening and what is systems and processes. provided on a confidential basis for driving the behaviour so that we The focus of the Working Group’s the purpose of providing feedback. can strategically approach how to work is to enable better reporting, Any feedback received will be prevent future incidents. We want prevention, detection and support treated confidentially. everyone in our community to feel of victims of sexual harassment, The five members of the Law safe speaking out when they don’t bullying, discrimination and any Society’s Regulatory Working Group like how they have been treated. We other unacceptable behaviour. are: Dame Silvia Cartwright (Chair); will be ensuring that when things The Working Group aims to pub- Professor Elisabeth McDonald, happen people know what to do and licly release its final report by early University of Canterbury; Jane how to respond and that everyone December 2018. Drumm, General Manager of Shine; receives the support they require It advises that if anyone wants Joy Liddicoat, lawyer; Philip Hamlin, through any process that follows. to provide thoughts or comments lawyer.

43 CREATING A JUST CULTURE November 2018 · LAWTALK 923

IBA survey Law Society of Scotland’s Violence indicates bullying Survey reveals dark statistics and sexual A 2018 survey of Scotland’s solicitors said she is alarmed at the survey’s findings. reports that one-third of its 1,162 respond- “There should be no tolerance of any threat harassment ents were victims of violence or threat- of violence towards legal professionals, or ening behaviour in connection with their indeed anyone providing a service to mem- not reported legal work. bers of the public, something that has been The survey was undertaken by the Law highlighted recently by the proposed Scottish Preliminary findings from an Society of Scotland as part of its annual Parliament bill to protect retail workers.” International Bar Association survey employment survey of solicitors, which on bullying and sexual harassment in also gathers data on pay, work-life balance A resolution the legal profession show that half of and asks for comments on the future of the In light of these results, the Law Society of all women lawyers have been bullied at country’s legal profession. Scotland has made several recommenda- work and one in three has been sexually The Law Society of Scotland oversees tions they want implemented to improve harassed. more than 11,000 of the country’s practising the safety of legal professionals, and to The IBA survey was still open and closed lawyers and, it appears that violence toward reduce violence and threatening behaviour on 26 October 2018. However, information the country’s lawyers is increasing. against its professionals. on preliminary findings was disclosed at The aptly named Violence Survey is the These recommendations are: a session at the IBA’s Rome conference first of its kind in the country and reveals • Improving reporting of incidents to the several weeks earlier, the Law Gazette of the Scottish legal profession’s dire statistics police; the Law Society of England and Wales when it comes to violence committed upon • Adopting a safety-first approach, such as says. solicitors. using smartphone safety apps, personal The survey had already received alarms or a buddy system, particularly responses from over 5,000 lawyers from Sombre statistics for sole practitioners; 120 jurisdictions. The survey report shows that almost 70% • Adoption of robust policies and proce- “Some 25% of all lawyers have been of criminal defence solicitors, 54% of family dures by employers to deal with violent sexually harassed, rising to 36% who have lawyers and 61% of prosecutors have been or threatening behaviour; experienced harassment in the last year. victims of violence or threatening behav- • Specialist training on risk awareness; Yet in four out of five cases the harassment iour at some point. The report also details and was never reported, for reasons including that many of these incidents took place in • Providing support for solicitors who are fear of career damage and reprisals. Some the solicitor’s offices. victims of violence. 43% of respondents have been bullied, but Not only does the survey show the “We intend to take forward our initial recom- this was not reported in 57% of all cases, extent of the violence solicitors face, but mendations, including working with other with similar reasons given,” the Law Gazette also the low reporting rate; just 20% of organisations in the legal and justice sectors, says. violent incidences were reported to the as a matter of urgency to try to minimise the “Where harassment and bullying police, with 12.5% of incidents of threat- risk of violence against people working in were reported, legal employers proved ening behaviour, and 14.5% of threatening the legal sector,” says Ms Atack. generally inept in dealing with it. In communications reported. The survey report can be found on the around two-thirds of cases the response In a statement on the organisation’s web- Law Society of Scotland’s website, www. was ‘insufficient or negligible’, and in site the Law Society’s President, Alison Atack, lawscot.org.uk three-quarters of cases the perpetrator was not sanctioned. In 62% of cases, bullying conduct contributed to the victim leaving or intending to leave the workplace. For harassment, the equivalent figure was 36%.” The New Zealand Law Society’s Legal Providing Professional Indemnity and specialist insurance Workplace Environment Survey from 5 products to the Legal Profession April to 1 May 2018 was completed by Visit www.justitia.co.nz for further information and application forms 3,516 respondents and showed generally Or Contact: Mr Ross Meijer, Aon New Zealand similar results, with 31% of women law- 04-819-4000 yers reporting they had been sexually [email protected] harassed.

44 LAWTALK 923 · November 2018 LAWYERS COMPLAINTS SERVICE

LAWYERS COMPLAINTS SERVICE

Complaints Resolution Summaries

LCRO upholds Mr Woodcourt would not sign the RPA until between Gargery and Mrs Woodcourt’s he had read and understood it. lawyer. Although Gargery’s manner no further action Mr Woodcourt said he asked Gargery to when dealing with Mr Woodcourt and his explain the RPA to him, and that Gargery daughter may have been abrupt “that of decision asked him to take the RPA away to read itself does not amount to unsatisfactory and to let Gargery know if he had any conduct”. Names used in this article are fictitious questions or – if he was happy with the The Legal Complaints Review Officer has RPA – to return it to Mrs Woodcourt’s LCRO decision upheld a lawyers standards committee lawyer’s office. The work Gargery carried out before the decision to take no further action on a In response to a question from Mr meeting appeared to be of a “preliminary complaint. Woodcourt’s daughter as to why it was nature”, the LCRO said in LCRO 152/2017. The lawyer, Gargery, acted for Mr necessary for Mr Woodcourt to take the In circumstances such as these, where Woodcourt on a relationship property RPA back to Mrs Woodcourt’s lawyer, and the retainer ended prematurely, it was matter. whether Gargery was “colluding” with Mrs open to argument that the requirement Mr and Mrs Woodcourt were married in Woodcourt’s lawyer, Mr Woodcourt said to provide Mr Woodcourt client care and 1963. They separated in the mid-1970s and that Gargery ended the meeting. service information had not yet arrived their marriage was dissolved in 1986. When Gargery said he considered Mr because Gargery had not carried out any they separated, Mr and Mrs Woodcourt Woodcourt’s daughter “had her own work of a “significant” nature. jointly owned a residential property. They agenda and contradicted [Mr Woodcourt’s] Although Gargery ought to have pro- agreed at that time that Mrs Woodcourt, previous statements to [Gargery]” and had vided his letter of engagement to Mr who had custody of their three young “adopted an adversarial attitude”. By accus- Woodcourt earlier, “by a close margin, I children, would have occupancy of the ing him of collusion, she had “impugned do not consider that [Gargery]’s conduct property. his professional integrity”. Gargery also said warrants a disciplinary response,” the When Mr Woodcourt first met Gargery, he was concerned that Mr Woodcourt was LCRO said. he informed him that Mrs Woodcourt had being “unduly influenced” by his daughter. “In my assessment of what appears to repaid the loan secured over the property. For these reasons, Gargery said he could be trying circumstances for the parties at He said he wanted to transfer the property no longer accept instructions. the meeting, it seems unlikely that the to Mrs Woodcourt, while also protecting opportunity arose for [Gargery] to take [Mr the interests of their three children. Complaint lodged Woodcourt] through the RPA and explain Gargery spoke with Mrs Woodcourt’s The daughter, on behalf of Mr Woodcourt, it to him then.” lawyer, who explained Mrs Woodcourt’s lodged a complaint with the Lawyers That was consistent with both parties’ position, which reflected Mr Woodcourt’s Complaints Service. accounts that Gargery suggested that Mr instructions. Some days later, Mrs Among the issues raised in the com- Woodcourt take the RPA away to read and Woodcourt’s lawyer provided Gargery with plaint were allegations that Gargery had let Gargery know if he had any questions. a draft relationship property agreement failed to provide Mr Woodcourt a letter of “It is my view that no issues of a disci- (RPA). engagement along with procedures for plinary nature arise for [Gargery] on this handling complaints; failed to explain the aspect of Mr [Woodcourt]’s complaint,” the Meeting with client RPA to Mr Woodcourt; and did not treat Mr LCRO said. and daughter Woodcourt fairly and respectfully. In terms of the complaint that Gargery Accompanied by his daughter, Mr The standards committee considering had not treated Mr Woodcourt fairly or Woodcourt had a meeting with Gargery, the complaint determined that no further respectfully, the LCRO said it was not who left the meeting for five minutes or so action was necessary or appropriate. possible for a decision-maker to prefer to collect the RPA from Mrs Woodcourt’s The committee said it concluded from one version over another where the parties lawyer. Gargery’s file notes that he gave Mr provided differing accounts as to what was After Gargery returned to the meeting, Woodcourt “appropriate advice”. There said or not said. Mr Woodcourt’s daughter told Gargery that was nothing inappropriate in the meeting

45 LAWYERS COMPLAINTS SERVICE November 2018 · LAWTALK 923

Payment authority constituted a breach of regulation Revenue Department (IRD) or the Serious 12(6)(b) of the Lawyers and Conveyancers Fraud Office (SFO). The second option was should not have Act (Trust Account) Regulations 2008. to initiate proceedings. Blackpool’s initial response to the Dilber offered to provide Mr Summerson been made committee was that the legal executive with the names of contacts known to her at responsible for the transaction had not the police, IRD and SFO. She also provided Names used in this article are fictitious referred to him, and had he been aware, Mr Summerson the name of a handwriting A lawyer who made a payment which he the payment would not have been made. expert, explained how to make a complaint acknowledged should not have been made, “Even if that were the case, the commit- to IRD and made contact with a police has been censured and fined $3,500 by a tee would have found that [Blackpool] was liaison officer. lawyers standards committee. responsible for the payment, as partner in At a second meeting, Dilber agreed to The lawyer, Blackpool, acted for Mr and charge of the trust account transaction.” her firm holding Mr Summerson’s folder Mrs Claypole on the sale of their property, It is of “some concern” that Blackpool of evidence for safe keeping. which they owned as tenants in common made a statement to the committee that Later, Dilber amended a document Mr in equal shares. was factually wrong. “The requisition Summerson prepared to send to the SFO. After settlement, there was a surplus authority for the direct credit was signed in funds from the sale. A legal executive by [Blackpool], and (presumably having Argument discounted working for Blackpool attempted on set- checked the document) [Blackpool] now The standards committee discounted tlement day to obtain instructions from accepts that he did, in fact, authorise the Dilber’s argument that because she had Mr Claypole as to how to deal with the payment. not opened a file, it followed that Mr surplus. The legal executive could not reach “His initial answer to the standards Summerson had not engaged her to act for him, but also spoke to Mrs Claypole who committee was incorrect, and misleading,” him and therefore she was not providing instructed the firm to pay the balance to the committee said. regulated services. Mrs Claypole’s personal bank account, and The committee found Blackpool’s actions Her firm held Mr Summerson’s folder the money was paid to her. amounted to unsatisfactory conduct. of evidence for safe keeping, and Dilber The committee noted that “despite As well as the censure and $3,500 fine, had edited and revised the SFO document. inquiries, it is not clear where the money is the committee ordered Blackpool to pay The committee was unconvinced by now held.” “Mrs [Claypole] has (apparently) Mr Claypole’s external legal costs of $2,600 Dilber’s explanation that she hoped “this refused to account to Mr [Claypole] for his and to pay $1,000 costs. meant that she would eventually receive share of the money." instructions”. Blackpool acknowledged to the stand- The committee made two findings of ards committee that he was aware the unsatisfactory conduct. The first was that property was held in equal shares and Failed to provide Dilber had been engaged to provide reg- said the legal executive dealing with the ulated services and therefore the conduct transaction was aware of this but did not client care fell short of the standard of competence refer the payment authorisation to him. and diligence of a reasonably competence However, Blackpool subsequently information lawyer. The second was that Dilber failed to provided the committee a copy of the provide Mr Summerson with the informa- requisition authority for direct credit. This Names used in this article are fictitious tion that must be provided to a client before showed that Mrs Claypole was the payee A lawyer who gave a client advice and undertaking significant work on a retainer. of the balance of the proceeds of sale and assistance was found to be providing In the committee’s view, each case purchase, and that Blackpool had signed regulated services, despite the lawyer constituted unsatisfactory conduct under as the responsible partner authorising the considering she was not yet engaged. s 12(a) of the Lawyers and Conveyancers payment. This finding of a lawyers standards com- Act 2006 (LCA), namely “conduct that falls The committee noted that Blackpool mittee was upheld by the Legal Complaints short of the standard of competence and “appears to accept that it was not appro- Review Officer (LCRO). diligence that a member of the public is priate to make payment to Mrs [Claypole] The client, Mr Summerson, consulted the entitled to expect of a reasonably com- only, without the authority of both clients." lawyer, Dilber, on a challenge that had been petent lawyer”, and fined Dilber $2,000. “Written instruction or authority ought made to the validity of an agreement for to have been obtained from both Mr and sale and purchase of a property. LCRO decision Mrs [Claypole] before the transfer payment Dilber outlined two possible options “Overall, it is my view that [Dilber] was to Mrs [Claypole] alone." The committee for Mr Summerson. The first option was retained by Mr [Summerson], to whom she noted that the failure to obtain that making complaints to the police, Inland provided legal services on this matter,” the

46 LAWTALK 923 · November 2018 LAWYERS COMPLAINTS SERVICE

LCRO said in LCRO 189/2015. corridor. L should be ordered to compensate them It followed that Dilber was required to “On the facts before me, separate office in that amount because, by permitting Mr provide Mr Summerson with client care space was not maintained by any means Dedlock to use a room in or adjacent to L’s and service information. that proclaimed that the businesses were office premises that was not differentiated Although the standards committee made separate and distinct,” the LCRO said. from those by signage or otherwise, L “let findings of unsatisfactory conduct under “So, the public at large were in jeopardy him pass as a member of their firm”. s 12(a) of the LCA, the LCRO considered of being led to believe that [L] and Mr The standards committee determined that Dilber’s contravention was unsatisfac- [Dedlock] were associated in a meaningful that no further action on the complaint tory conduct under s 12(c) of the LCA. The way. was necessary or appropriate. LCRO therefore reversed the committee’s “That is enough to warrant a finding of In reaching its decision, the committee findings and substituted unsatisfactory a rule 11.1 breach,” the LCRO said. Rule 11.1 noted that: conduct under s 12(c) for failing to provide says that: “A lawyer must not engage in (a) the F website expressly said that the information required by rules 3.4 and conduct that is misleading or deceptive or those involved in its business were 3.5 of the Lawyers and Conveyancers Act likely to mislead or deceive anyone on any not lawyers; (Lawyers: Conduct and Client Care) Rules aspect of the lawyer’s practice.” (b) it was difficult to ally the complaint 2008. However, not every rule breach requires to any of the rules found in the RCCC; The LCRO also reversed the committee’s a finding of unsatisfactory conduct, the (c) looking outside the RCCC, there was decision to fine Dilber $2,000. One reason LCRO said. no other basis for a finding that L’s was Dilber’s acknowledgment that she did “In my view, [L’s] conduct took the form conduct amounted to unsatisfactory not provide client care information because of breach by oversight, rather than sheer conduct, or that L was vicariously liable she believed, at the time, she was providing carelessness – an oversight that is unlikely for Mr Dedlock’s conduct; and preliminary assistance. Further, at the time to be repeated and one offering a lesson (d) it did not accept that (as had been she dealt with Mr Summerson, she had to both [L] and all other lawyers and law alleged) L had done anything to provide only two years’ post admission experience, firms. F “with a cover brand” or to create “a and she now appreciated the importance “I have no doubt that this process has façade … erected for its own financial of sending client care and service informa- been a wake-up call to [L] and, in my view, benefit, giving no thought for other tion, terms of engagement and a letter of that suffices in all the circumstances.” possible consequences”. engagement to clients at the outset. The LCRO was considering an applica- In certain circumstances, the LCRO may The LCRO ordered Dilber to pay $900 tion from Mr and Mrs Lillyvick, for review award compensation (which Mr and Mrs costs. of a lawyers standards committee decision Lillyvick were seeking). However, that was to take no further action on their complaint not appropriate when the claim “properly about L. belongs in the court system, which is the Mr and Mrs Lillyvick made the complaint case here,” the LCRO said. Firm did not with the aim of recovering $8,050 from L, “Although my review has taken a dif- which they paid in advance to Mr Dedlock, ferent route from that of the committee, maintain due trading as F, for employment dispute ser- I see no grounds which could persuade vices for Mrs Lillyvick which they say were me to depart from the committee’s actual separation never performed. decision that … no further action on the In their complaint, they submitted that complaint was necessary or appropriate.” between offices

Names used in this article are fictitious A law firm which did not establish and DOING DISCOVERY? www.lawflow.co.nz maintain “due separation” between its office and the office of an employment LawFlow is a web-based discovery system designed, developed and advocate breached rule 11.1 of the Lawyers hosted in New Zealand, used by New Zealand law fi rms since 2012. and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC), the ∂ Generate discovery lists and electronic bundles Legal Complaints Review Officer (LCRO) Full-text search your discovery documents ∂ Remote access via any web-browser found in LCRO 240/2017. ∂ And much more! The law firm, L, allowed an employment ∂ advocate, Mr Dedlock, to use a room which Take a free, fully-functional trial today! Visit our website for details www.lawfl ow.co.nz was separated from L’s office suite by a

47 LAWYERS COMPLAINTS SERVICE November 2018 · LAWTALK 923

Failed to address in respect of the same transaction where application and affidavit to set aside bank- the prior informed consent of all parties ruptcy notices on the judgment creditors conflict concerned is obtained. within time which constituted unsatis- The committee noted that the entire pur- factory conduct, the Legal Complaints Names used in this article are fictitious chase price for the property Mr Jeddler and Review Officer (LCRO) has found in LCRO A lawyer who failed to address a conflict Ms Swidger owned was met by Mr Jeddler 35/2015. of interest in a timely manner has been and that Ms Swidger made no financial The barrister, Bantam, represented Mr censured and fined $3,000 by a lawyers contribution to the purchase. Crimple and Ms Datchery in High Court standards committee. Mr Jeddler and Ms Swidger had com- proceedings to set aside bankruptcy The lawyer, Dombey, acted for Mr Jeddler menced a relationship only a few months notices. and Ms Swidger, who had begun a personal before Mr Jeddler instructed Dombey’s The High Court dismissed the application relationship, on their purchase of a bare firm about selling his own property. At the to set the notices aside because they were block of land in their joint names. time of the sale, the sale proceeds were not served within the time stipulated in Mr Jeddler met the entire purchase price Mr Jeddler’s separate property under the the bankruptcy notices, as well as on the of the property from funds provided from Property (Relationships) Act 1976. merits. the sale of his own property. Ms Swidger “There was therefore a more than negligi- Although there was a difference in the made no financial contribution to the ble risk that [Dombey] might not be able to parties’ recollection of events, the parties purchase. discharge his obligations to both parties,” agreed that the two applications (one by The same month as settlement of the the committee said. Mr Crimple and one by Ms Datchery) had property purchase, Ms Swidger, who “The risks to Mr [Jeddler] from using his been filed in the High Court at about 4pm owned her own business, sought to borrow own monies to purchase the … property on the last day applications could be made, money from a bank. Dombey’s firm sent in joint names must have been apparent and that service copies were available at the bank a loan agreement, signed by Ms to [Dombey] at the time he received Mr the latest by 4:30pm. Swidger, and a personal guarantee, signed [Jeddler]’s instructions. Bantam claimed that it was impossible by Mr Jeddler. “[Dombey] clearly was under a respon- to serve the applications on the judgment During the following year, it became sibility at that point (if he intended to act creditors’ lawyers “due to the lateness in apparent that Ms Swidger was in finan- for both on the purchase) to warn of the filing”. He said that was not his fault, and cial difficulty, and she went into voluntary risks as part of the advice and information he blamed Mr Crimple and Ms Datchery bankruptcy. Her interest in the property to both parties, particularly Mr [Jeddler]. for leaving matters until the last minute. she and Mr Jeddler owned was vested in “The information should have been Bantam said he knew the applicable the Official Assignee. provided at an early stage, in order for Mr time limits, which he always explained to Mr Jeddler became liable for some of her [Jeddler] to give prior informed consent clients, and that he would have explained indebtedness as result of the guarantee to enable [Dombey] to continue to act on this to Mr Crimple. he had given and ultimately settled that the purchase. Mr Crimple, however, said that Bantam liability. He also entered into a settlement “There is no evidence that [Dombey] did not advise him that service of the with the Official Assignee to acquire Ms provided Mr [Jeddler] any advice, whether applications on the vendors had to be done Swidger’s interest in the property by verbal or written, as to the potential con- within 10 working days after service of the a payment of $60,000. In addition, Mr sequences of Mr [Jeddler] providing all of bankruptcy notices. Jeddler paid $18,000 to Inland Revenue the funds to acquire the … property and He said that had Bantam advised him in respect of Ms Swidger’s debt from false registering that property in joint names.” it was necessary to file and serve the GST returns. That failure constituted unsatisfactory applications that day and warned him Mr Jeddler subsequently complained to conduct, the committee determined. of the consequences of not doing so, he the Law Society, focusing on the applica- As well as the censure and fine, the com- could have driven from the High Court to tion of rules 6.1 and 6.1.1 of the Lawyers mittee ordered Dombey to pay $1,000 costs. the vendor’s lawyers’ address to serve the and Conveyancers Act (Lawyers: Conduct documents that afternoon. and Client Care) Rules 2008. There could be no denying that the fact Rule 6.1 provides that a lawyer must not service copies were not available until act for more than one client where there is Barrister missed around 4:30pm made it more difficult for a more than negligible risk that the lawyer Bantam, the LCRO said. may be unable to discharge the obligations service deadline “Having said that, in most areas of the owed to one or more of the clients. Rule practice of law, lawyers must, as a matter 6.1.1 provides that subject to rule 6.1, a Names used in this article are fictitious of routine, meet deadlines when acting for lawyer may act for more than one party A barrister failed to serve the required their clients, often in difficult and trying

48 LAWTALK 923 · November 2018 LAWYERS COMPLAINTS SERVICE

circumstances.” Client charged a breached RCCC rule 3.4(a). Rule 3.4(a) states “Mr [Crimple] and Ms [Datchery] “A lawyer must, in advance, provide a client entrusted [Bantam] with the task of non-existent tax with information in writing on the princi- opposing the bankruptcy notices served pal aspects of client care service including on each of them by making applications The name used in this article is fictitious the following: (a) the basis on which the to set aside. Critical to those instructions A lawyer who charged clients a “Land fees will be charged …” the applications had to be both filed in the Transfer Tax” as a disbursement when The committee also found unsatisfactory High Court and served on the judgment no such tax exists had engaged in unsat- conduct by Darnay in that he failed to pro- within the time stipulated in the bank- isfactory conduct, a lawyers standards vide adequate GST invoices to his clients. ruptcy notice.” committee has found. Darnay’s invoices failed to identify “[Bantam] acknowledges he was also The lawyer, Darnay, noted a $100 dis- whether there was a GST component in aware of the two lines of authority concern- bursement for either a “Land Transfer Tax”, the office expenses and did not include ing the service of applications to set aside. “Land Transfer Tax Statement” or “Land a narration that the charges were GST As such, he would have known that at that Transfer Tax Statement for LINZ” for about inclusive unless otherwise specified. time the approach taken in Re Memelink HC 22 months, during which time some 240 The committee conducted an own Wellington CIV 2008-485-2691, 10 March invoices had been issued. motion investigation after receiving a 2009, and Re Guthrie HC Auckland B 92/02, The committee ordered Darnay to reduce report from a Law Society inspector who 23 August 2002 is the correct one and a his fee by $100 (including GST) for any cli- had reviewed the trust account of the valid application to set aside a bankruptcy ents he had charged for a “Land Transfer firm where Darnay was the trust account notice must be both filed and served within Tax”, “Land Transfer Tax Statement” or supervisor. the time for compliance with the notice,” “Land Transfer Tax Statement for LINZ”. As well as the order to reduce his fee, the the LCRO said. Darnay accepted that there had not been committee ordered Darnay to pay $500 costs. When it considered the complaint, a any payment to a third party for a land lawyers standards committee fined Bantam transfer tax or completion of a land transfer $1,000 and ordered him to undergo prac- tax statement, and that he had been wrong tical training or education in insolvency. to record them as such on his invoices, the Lawyer should The committee also found Bantam had committee noted. contravened rule 9 of the Lawyers and Darnay claimed the charge had been have checked Conveyancers Act (Lawyers: Conduct and introduced to recover the extra time spent Client Care) Rules 2008 (RCCC) in respect on the establishment of identity steps property of one of his invoices, and that was unsat- required by the introduction of anti-money isfactory conduct. laundering legislation. ownership The LCRO also confirmed the commit- However, by charging a $100 “Land tee’s finding that Bantam contravened rule Transfer Tax” when no such tax existed, Names used in this article are fictitious 3 of the RCCC which was unsatisfactory Darnay breached rule 11.1 of the Lawyers When preparing a will it is incumbent on a conduct under s 12(c) of the Lawyers and and Conveyancers Act (Lawyers: Conduct lawyer to establish whether the will-mak- Conveyancers Act 2006. However, the and Client Care) Rules 2008 (RCCC). Rule er’s wishes can be put into effect, the Legal LCRO also modified the committee’s find- 11.1 states: “A lawyer must not engage in Complaints Review Officer (LCRO) says. To ing in so far as the conduct also constituted conduct that is misleading or deceptive or that end, a lawyer owes his or her client a unsatisfactory conduct under s 12(a). likely to mislead or deceive anyone on any duty to check the ownership of the client’s The LCRO confirmed the $1,000 fine aspect of the lawyer’s practice." property. but reversed the committee’s order that The committee also found unsatisfactory In LCRO 201/2017, the LCRO considered Bantam undergo further training. That conduct by Darnay for: a complaint that a lawyer, Bagstock, had was because Bantam was aware of the • failing to adequately disclose to clients not acted competently when she prepared deadline, but on this occasion took insuf- in his letter of engagement that he would a will for Mrs Carder. ficient care. charge extra fees to cover additional Under that will, Mrs Carder left a life The LCRO reversed the unsatisfactory overhead costs; and interest in a property to one of her two conduct finding relating to one of Bantam’s • failing to adequately disclose to clients sons, Mr Defarge. That life interest was to invoices, and instead referred all five of in his letter of engagement that he would end on the earlier of, first, his failure to Bantam’s invoices back to the committee charge them separately for recovery of meet the stipulated terms and conditions for reconsideration. office expenses such as forms, postage of that tenancy, or secondly, ceasing to Bantam was also ordered to pay $1,600 and communication. occupy the property, or thirdly, his death. costs to the New Zealand Law Society. The committee found that those failures On the expiry of Mr Defarge’s occupancy,

49 LAWYERS COMPLAINTS SERVICE November 2018 · LAWTALK 923

the property was to become part of Mrs that on the client’s death the husband did and should have been aware of own- Carder’s residuary estate to be divided not receive ownership of the property by ership issues; whereas Mrs Carder had in equal shares for her three children, Mr survivorship. Instead, the property passed informed Bagstock she was sole owner of Defarge, Ms E and Mr F, as survived Mrs to the client’s son under the will. the property. However, the LCRO rejected Carder. In upholding that decision on review, this argument, noting the authorities There was a gift over to Mrs Carder’s the High Court in Woods v Legal Complaints “emphasise the importance for a lawyer grandchildren, who both survived Mrs Review Officer [2013] NZHC 674: instructed to prepare a client’s will Carder and attained the age of 25 years, (a) reaffirmed that “a lawyer instructed intended to dispose of property to first in equal shares. to prepare a will owes a duty of care check the ownership of the property However, although Mrs Carder had beyond merely the testatrix herself ”; concerned.” informed Bagstock she was the sole owner (b) disagreed that “it [was] not open to a The LCRO reversed the lawyers stand- of the property, it was in fact owned by Mrs lawyer to take a stance opposite to a ards committee decision to take no further Carder and Mr Defarge as joint tenants. client’s views and instructions”; and action on the allegation Bagstock had An important feature of a joint tenancy is (c) held that it was the lawyer’s “responsi- breached her professional obligations that “on the death of one joint tenant his bility … to advise [the client] in relation when preparing Mrs Carder’s will. It substi- or her interest is extinguished and accrues to entry into the will”, and the lawyer tuted that with a finding that Bagstock had to the surviving joint tenant[s] by virtue “should not have relied on the under- breached rules 3, 6, 7 and 7.1 of the RCCC of the right of survivorship”. standing of the client on that matter”. and that this constituted unsatisfactory When Mrs Carder died, ownership of the conduct. property therefore passed to Mr Defarge by Practical guidance In the particular circumstances, the survivorship and Mrs Carder’s instructions, In addition, the LCRO noted that practical LCRO considered that a finding of unsat- as stated in the will Bagstock prepared guidance available to lawyers (LexisNexis isfactory conduct was sufficient in itself could not be put into effect. Practical Guidance – Wills – Issues to without additional penalty. However, the Ms E subsequently lodged a complaint Consider when Taking Instructions) also LCRO ordered Bagstock to pay $1200 costs. with the Lawyers Complaints Service. recommends that where, as occurred in the facts on this review, “the property is Lawyers standards owned as joint tenants then [the property] committee decision falls outside the will-maker’s estate and Oversight A lawyers standards committee decided passes automatically by survivorship to the that no further action on the complaint other owner”. The author warns that “[t] didn’t warrant was necessary or appropriate. In doing here is therefore no point drafting a clause so, the committee noted that Bagstock to deal with a life interest in the will-mak- disciplinary action had not acted in the conveyance of the er’s home to a spouse, if the property will property, ownership issues arose before pass automatically to the survivor through Names used in this article are fictitious Bagstock was instructed to prepare the joint tenancy”. A lawyer’s oversight, where he did not will, and ownership issues would have In order to protect and promote Mrs notice an overpayment to his client, did occurred regardless of whether Bagstock Carder’s interests when preparing her not warrant a disciplinary response, the had prepared the will. will, “it was incumbent on [Bagstock] to Legal Complaints Review Officer (LCRO) The extent of a lawyer’s duty when establish whether or not Mrs [Carder’s] has found. acting on the preparation of a client’s will, wishes could be put into effect” (rule 6 The lawyer, Grueby, acted for the vendors where the type of ownership of the client’s of the Lawyers and Conveyancers Act of a residential property purchased by Mr property is critical to the instructions and (Lawyers: Conduct and Client Care) Rules Tulkinghorn and his family trust. intentions has been considered both by 2008 (RCCC)), the LCRO said. The agreement for sale and purchase the LCRO and the courts, the LCRO said. “To that end, [Bagstock] owed Mrs provided a sale price of $1,115,000, with In LCRO 159/2010, a lawyer’s conduct in [Carder] a duty to check the ownership a 10% deposit ($111,500) and the balance failing to check the title to a property “to of the property, to consult and give advice on settlement. enable full advice” to the client was found to Mrs [Carder] about that and provide her Mr Tulkinghorn paid the real estate to constitute unsatisfactory conduct. the opportunity to re-consider her instruc- agents $115,000, which represented an In that case the lawyer concerned tions” (RCCC rules 7 and 7.1). overpayment of $3,500. drafted a will on the assumption that the Bagstock argued that the cited author- When Grueby received the real estate client’s property was owned by a husband ities could be distinguished because agents’ commission statement, it showed and wife as joint tenants, when it was those lawyers had been informed the two payments totaling $115,000, but did held as tenants in common. This meant property in question was jointly owned not draw particular attention to the

50 LAWTALK 923 · November 2018 LAWYERS COMPLAINTS SERVICE

overpayment of $3,500. • Grueby was “not holding any funds from meetings, and corresponded with the Settlement took place based on Grueby’s the sale”. board and three former board members. unamended settlement statement, which Mr Tulkinghorn sought an LCRO review. Drummle’s letters were on his firm’s credited Mr Tulkinghorn and his family “In my view, [Grueby]’s oversight does letterhead and his emails used the firm’s trust with a payment of $111,500, not the not warrant a disciplinary response,” the email address and footer. One email said actual combined payment of $115,000. LCRO said in LCRO 54/2018. he was writing as instructing solicitor to Nearly a year later, after Mr Tulkinghorn’s “In reaching that conclusion I am his brother’s barrister. Another referred to accountant discovered the overpayment, assisted by a decision from this office in his brother as “our client” and a third stated Mr Tulkinghorn’s lawyer made enquir- which the view was expressed that ‘an he had “standing instructions”. ies on his behalf of Grueby about the honest mistake is not a proper basis for Around 10 months after Drummle began overpayment. disciplinary action’.” attending the board meetings, the board Mr Tulkinghorn complained to the Grueby’s oversight in not noticing Mr passed a resolution prohibiting members Lawyers Complaints Service. He sought Tulkinghorn’s overpayment “falls into that of the public from making audio recordings the return of his $3,500 overpayment from category of mistakes or errors”. of board meetings. Grueby. The LCRO also noted that the profes- In response, Drummle placed a dicta- The substance of his complaint was that: sional duties owed by a lawyer, who acts phone on a table at the meeting and • Grueby’s statement incorrectly showed for one party in a transaction, to the other declined to answer questions from board a deposit of $111,500 has been paid, party are limited – particularly where, as members as to whether the device was whereas $115,000 had been paid; was the case here, the opposing party was operating. • Mr Tulkinghorn and his family trust paid separately represented. Following a second similar incident, the $3,500 more than the purchase price; and As well as confirming the standards board served Drummle a trespass notice. • Grueby informed him that he had “for- committee decision, the LCRO ordered Drummle sought a judicial review of warded all funds to the vendors” but had anonymised publication of its decision. the board’s decision to issue a trespass “offered no assistance in attempting to notice. In an unsuccessful interlocu- reclaim” the overpayment, which the tory application, the judge described vendors stated they did not receive. Drummle’s “fake recording” of the two A lawyers standards committee determined Unprofessional meetings as “provocative and disorderly that no further action on the complaint was and frankly, extraordinarily immature for necessary or appropriate. The committee interaction with a man of [Drummle’s] standing, age and noted that: profession”. • there was “no evidence that [Grueby] college board had any knowledge at the time, that the “Provocative and disorderly” deposit paid was other than provided The name used in this article is fictitious Some weeks later, Drummle was successful for in the contract”; A lawyer who failed to maintain proper in his judicial review application with the • Grueby “no longer had instructions from standards of professionalism in his inter- High Court finding the board’s trespass the vendors”, he had “made efforts to actions with a college board of trustees notice was ultra vires. The judge, however, contact his [vendor] clients direct but has been censured and fined $1,500 by a said he was satisfied the board’s decision [had] received no instructions to act lawyers standards committee. was not unreasonable as he considered further”; After his brother – a teacher at the col- Drummle’s behaviour to have been provoc- • Mr Tulkinghorn had been in contact with lege – was dismissed, the lawyer, Drummle, ative and disorderly. “The evidence showed the vendors directly; and attended a number of board of trustees that [Drummle] deliberately disregarded

51 TIKANGA AND TURE November 2018 · LAWTALK 923

TIKANGA AND TURE

the authority of the board,” the judge said. Te Hunga Roia The board complained to the Lawyers Complaints Service that Drummle had breached rules 10 and 11 of the Lawyers Kura Reo 2018 and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. These rules provide that a lawyer must BY ALANA promote and maintain proper standards of THOMAS professionalism in the lawyer’s dealings; and a lawyer’s practice must be adminis- tered in a manner that ensures that the duties to the court and existing, prospec- Tuia ki runga, tuia ki raro, tuia te rangi e tū nei, tuia te tive and former clients are adhered to, and papa e takoto nei, tuia te muka tangata e rangitāmiro nei i a tātou that the reputation of the legal profession ki a tātou. Kei aku rangatira, kei ngā whetu maiangi o te ao ture, is preserved. tēnā koutou katoa. The standards committee said it con- For the last few years, the desire to understand, learn and sidered the board was reasonable in strengthen te reo Māori within Aotearoa has been at the forefront identifying that Drummle was acting in many legal environments. It is for that reason that the idea in a professional capacity. In addition, for a kura reo, a full immersion course in te reo Māori, designed Drummle’s conduct could attract a finding specifically for those working, teaching or studying within the of unsatisfactory conduct irrespective of law, was developed and progressed by Te Hunga Rōia Māori o whether it occurred while providing reg- Aotearoa (THRMOA). ulated services. The idea was for a kura reo to be open to all those who desired The committee said it considered to broaden their knowledge of te reo Māori, while accommodating Drummle had engaged in a “sustained cam- all levels of proficiency. paign” against the board, which overlapped In July this year, the inaugural kura reo for the legal sector was with the employment dispute. held at Hoani Waititi Marae in Auckland. THRMOA were fortunate “It considered that [Drummle] had to engage several well-known and respected kaiako (teachers) to taken issue with frivolous matters in a attend and be a part of this very first law-based Kura Reo. E tika particularly strident and forceful manner, ana kia mihia o mātou kaiako, a Tātere (Jeremy) MacLeod, Karena which would have been likely to lead to Kelly, Hemi Kelly, Tai Ahu. the incurrence of unnecessary cost to the [board], and that it reflected poorly on Immersion environment [Drummle] and the profession.” The main goal during the kura reo was to create an immer- The letters Drummle sent, particularly sion environment where te reo Māori would flow freely, be those sent to former board members, were the dominant language and where all participants would feel “unnecessarily intimidating, discourteous comfortable enough to engage in this environment fully without and inappropriate”. fear of judgement. The committee also considered The way in which THRMOA believed this could be achieved was Drummle’s conduct in relation to the to hold this kura reo on a marae, so that the participants could use of the dictaphone at board meetings be surrounded by an environment that not only upholds te reo was “unprofessional and showed poor Māori, but also practises tikanga Māori in an everyday setting. judgement on [Drummle]’s part. This was It was clear that this was demonstrated throughout the kura exacerbated by the fact that this was reo but, more particularly, right from the very beginning of the repeated on two occasions.” kura reo during the pōwhiri process. Drummle failed to promote and main- The participants experienced a formal welcome on to the marae tain proper standards of professionalism wherein they witnessed first-hand the tikanga of pōwhiri and all and preserve the reputation of the legal its counterparts: karanga, mihimihi, waiata, karakia etc. profession in breach of rules 10 and 11, For many tauira (students), this was the first time they had the committee said, making a finding of been a part of a pōwhiri process and many told THRMOA that unsatisfactory conduct. they were honoured to have been able to experience it. As well as the censure and $1,500 fine, The kura reo was also extremely fortunate that Te Kura Kaupapa the committee ordered Drummle to pay Māori o Hoani Waititi were still onsite at the kura (which is adjacent $750 costs. to the marae) and were able to partake in several activities at the

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TIKANGA AND TURE

marae alongside the kura reo students. THRMOA saw these sessions as invalu- able as it showed the kura reo tauira how a kura kaupapa Māori operates and how tikanga Māori and te reo Māori play an integral role in the lives of these tamariki (children). Not only did this open their eyes to the world in which Māori operate, but it showed the legal world a side of Māori culture that they, perhaps, had not seen before. It showed the legal world that Māori continue to be rich in their identity and culture. Manaaki and aroha This environment of manaaki and aroha, under the umbrella of te reo Māori, con- tinued into the sessions themselves. The 100 students made up of judges, lawyers, academics and law students were placed into four different groups based on the proficiency of their reo. From there, they were able to form relationships with others at the same level of reo and learn in an environment that was tailored specifically for them. The sessions ranged from classroom type lectures, marae-style wānanga teach- ing methods and interactive teaching methods that took the students out onto the marae ātea. As well as the day-time classes, THRMOA arranged for additional activities for the students while staying at the marae. On one of the evenings, THRMOA hosted A success a taupatupatu (or debate) which tackled THRMOA believes that the kura reo was a success and that its the issue of the place of tikanga within objectives, which were to showcase te reo Māori and the benefits the New Zealand legal system. This was that come from understanding the language, to ignite the fire a chance for te taha tāne (the men) to go of those studying and working in the law environment to take up against te taha wāhine (the women) hold of te reo and all its teachings, and to integrate te reo Māori with each speaker having three minutes within the mahi we do and, ultimately, elevate te reo to the place to make their points on this issue, all in that it belongs. te reo Māori. THRMOA has received only positive feedback from attendees To conclude the kura reo, THRMOA was and have been asked to run the course more regularly. Its success privileged to host Justice Joe Williams at shows that people not only want this education to occur annually the marae who spoke about the history for the legal sector, but they also recognise there is a need for of te reo Māori in the legal system, the this type of teaching initiative for those working within the legal struggles he faced and the barriers he profession, particularly with Māori clients and partners. had to overcome prior to becoming a THRMOA is extremely excited to take up that challenge and member of the judiciary. He also spoke invite you all to attend the kura reo 2019 where you too can be a about the continued struggle we face part of a positive change within the law. today and how we can move forward Kia rere te reo Māori i te ao ture! ▪ giving true recognition to te reo Māori in the law. Again, his entire lecture was Alana Thomas  [email protected] is a director in te reo Māori. of Kaupare Consultancy.

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PRACTICE

hours. Slightly more (86%) private Legal Salary Survey practice lawyers worked full-time than in-house lawyers (84%). Lawyers in their first decade of 2018 results released work experience tend to work full- time, with the proportion working part-time rising steeply after 10 BY GEOFF years PQE. ADLAM When asked why they worked part-time, 78% of women and 11% of men said it was to enable caregiv- ing. The main reasons for men work- There appears to be little difference between salaries of ing part-time were “don’t need to employed male and female lawyers with the same levels work full-time” (29%) and “to pursue other hobbies and interests” (25%). of experience in the first nine years of legal practice. Not needing to work full-time was the second main reason for women, at 8% of respondents. Lawyers working in smaller This is one of the findings of the New Zealand centres were more likely to work Law Society and Niche Consulting Group Legal Salary part-time. Lawyers in Wellington, Survey 2018. Auckland and Tauranga (87% of The survey was sent in August 2018 to all New Zealand- respondents in each) were most based lawyers who were employed by a law firm or likely to work full-time, while who were working as in-house lawyers. It does not, lawyers in smaller centres in both therefore, include directors and partners of law firms islands were least likely (with 22% or barristers sole. Niche Consulting Group carried out working part-time). analysis of the results and the survey report is available on the Law Society website. Salary increases The survey went to 7,688 lawyers, with 2,579 (33.6%) When asked if they had received a responding in full or partially. This was the best response salary increase in the last 12 months, of the five legal salary surveys which the Law Society 25% said they had received none, has carried out. Women made up 61% of those to whom 29% had received from 1% to 3%, it was sent and comprised 67.8% of respondents. 11% from 4% to 6%, 11% from 7% to There was a broad distribution of experience levels 10% and 24% had received a salary and locations among respondents, although a relatively increase of over 10%. small response from lawyers with five to nine years post Those who received no salary qualification experience (PQE). While the increase made up 38% of part-time While the data indicated there was little gender dif- data indicated and 23% of full-time workers, while ference in the levels of pay in the first decade of work there was another 37% of part-time workers and experience, it found some noticeable differences between little gender 28% of full-time workers received 1% men and women in working hours, the level of salary difference in to 3%. Just 8% of part-time workers increases and benefits. It is also clear that any indus- the levels of received over 10%, compared with try-wide attempt to compare remuneration of lawyers pay in the first 26% of full-time workers. will inevitably show a bias in favour of men by the fact decade of work Men appeared more likely to that they make up 67% of partners and directors in experience, it receive a higher salary increase than the profession – roles which are remunerated at much found some women. Nearly one-third of women higher rates. noticeable (31%) and a quarter of men (25%) differences received an increase of 1% to 3%, Work hours between men with 50% of men and 44% of women The survey found that 85% of respondents worked full- and women in receiving a salary increase of 4% time (more than 37.5 hours a week). However, 96% of the working hours, or more. When combined with the men who responded worked full-time, against 80% of the the level of information on part-time work, this women. Of those who worked part-time, over half (52%) salary increases seems to indicate that women are worked 21 to 30 hours, with 30% working more than 30 and benefits. significantly disadvantaged when

54 LAWTALK 923 · November 2018 PRACTICE

salary increases are considered. health insurance and gym member- More lawyers working in law firms (26%) did not ship than female lawyers. Women receive a salary increase when compared with in-house were more likely to receive flexible lawyers (23%). There was a noticeable difference between hours, a laptop/tablet, discounted/ the two types of practice in the magnitude of salary free legal work and a “day off for increases. While 16% of private practice lawyers received their birthday” than men. 1% to 3%, 49% of in-house lawyers received an increase of Private practice lawyers were that amount. Just under 32% of private practice lawyers most likely to receive a mobile received an increase of over 10%, compared with 11% phone (56%), bonus scheme (42%), of in-house lawyers. discounted/free legal work (41%) The size or nature of the employing enterprise appears and laptop/tablet (35%). In-house to have a noticeable impact on the size of salary increase. lawyers were most likely to receive A high 39% of lawyers in large firms (over 20 lawyers) a mobile phone (74%), laptop/tablet received increases over 10%, compared with 28% of law- (61%), flexible hours (55%) and yers in medium firms (5 to 20 lawyers), 22% in small firms bonus scheme (50%). (less than 5 lawyers), 13% of in-house lawyers in commer- Respondents were asked to esti- cial/corporate enterprises, 11% working in community law mate the value of the benefits they centres and 8% working for central government. received. While there was obviously A relatively high 30% of Auckland lawyers received a subjective element in this, the an increase of over 10%, while 17% of Dunedin lawyers responses showed that 77% estimated received over 10% – the lowest of any centre. Lawyers the annual value at up to $10,000, in smaller South Island centres (25%) were the next with just 4% estimating it at over best-rewarded, followed by 24% of Christchurch lawyers. $40,000. There were more women Dunedin was the centre with the highest proportion (79%) than men (74%) who estimated of lawyers who received no salary increase, at 35% of benefits up to $10,000, while 5% of respondents, followed by Tauranga (35%), other North men and 3% of women estimated Island centres (34%) and other South Island centres (33%). When asked why their benefits to be over $40,000. they worked Benefits part-time, 78% Salaries Survey participants were asked about the benefits of women and The good response rates have ena- they received in addition to their salary. Half of the 11% of men said bled good detail in salary informa- respondents said they received benefits, and the longer it was to enable tion, which is available by location a lawyer had been in practice, the more likely they were caregiving. The for each year of practice up to 10 to receive more benefits. main reasons for PQE, and in bands thereafter. The Lawyers working in private practice (53%) were men working following summary shows the result slightly more likely to receive benefits than lawyers part-time were for all New Zealand for selected working in-house (50%). “don’t need to years of practice. The most common benefits were mobile phone (62% work full-time” The full survey report and find- of those receiving a benefit), laptop/tablet (45%), bonus (29%) and “to ings is available on the Law Society scheme (44%) and flexible hours (39%). pursue other website at Practice resources ▹ The The research found that male lawyers were more likely hobbies and business of law ▹ Human resources to have a mobile phone, bonus scheme, parking, private interests” (25%). and remuneration ▪

New Zealand Law Society and Niche Consulting Group Legal Salary 2018. Average salaries, all New Zealand

Enterprise 0-1 PQE 2 PQE 3 PQE 5 PQE 7 PQE 10-14 PQE Small firm (<5) $50,000 $58,000 $62,000 $75,000 $71,000 $94,000 Medium firm (5-20) $49,000 $61,000 $71,000 $89,000 $98,000 $117,000 Large firm (>20) $54,000 $64,000 $79,000 $98,000 $117,000 $143,000 In-house Corporate $61,000 $80,000 $79,000 $113,000 $126,000 $162,000 In-house C Govt $64,000 $68,000 $77,000 $85,000 $107,000 $120,000

55 PRACTICE November 2018 · LAWTALK 923

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firm. Issuing press releases is a waste Startup marketing of time unless what you’re doing is newsworthy and easily understood/ converted into new articles by over- techniques for worked journalists. Your PR expert should be able to help you to create such content and, most importantly, lawyers – Part 2 get it into the hands of the journalists most likely to write about it. Unconventional PR basically BY DAMIAN involves creating the news by doing FUNNELL or saying something newsworthy. Richard Branson has a black belt out how to put your name on it (or in unconventional PR. He’s been This is the second part of a two- otherwise associate it with your known to remove it, along with part series. In this issue we look at firm). Drop me a line if you’ve got the rest of his clothing, and to stand some of the other startup marketing an idea but you’re not sure about naked on airplanes to generate huge techniques that can be used effec- how to execute it – I love this stuff. amounts of press coverage. tively by lawyers. Although stripping your partners Viral marketing naked and parading them on front Engineering as marketing Viral marketing simply means cre- of the press might seem appealing, Build something useful, put your ating something that your clients you don’t have to go to quite such name on it and it will advertise your will share with each other. extreme lengths to generate uncon- firm forever. The concept behind The single best example of viral ventional PR for your firm. using engineering as marketing is marketing I’ve seen is the hilarious Your unconventional PR can be simple and extremely effective. ‘Story of NZ’ from 42 Below back in more subtle, but still effective. You For example, check out Buddle the 00s. Cheaply made and pitch per- just have to think carefully about Findlay’s excellent ‘Back of a fect, I must have been sent this clip what you could do or say to generate Napkin’ website for helping aspir- over a hundred times when it came a bit of buzz. ing entrepreneurs to build an initial out (this was before Facebook and For example, a couple of law firms agreement on how they will work YouTube had taken off, so we were in Australia made news around the together. The site is simple, easy still emailing videos to each other). world when they announced that to use and wouldn’t cost much to If you want content to go viral then they would start accepting payments build. It not only carries the Buddle it has to be both share-worthy and in Bitcoin from their clients. I doubt Findlay brand, but it’s also cleverly easy to share. What can you write they have had many (if any) clients designed to catch potential custom- about that clients will be compelled wanting to pay in Bitcoin, but this ers (entrepreneurs) at the very start to share with each other? How can is irrelevant. They received huge of their commercial endeavour. you make it easy for them to share amounts of coverage and they posi- Another example is the AI-driven (eg, ‘Share this article’ functionality tioned themselves as the hippest, Brexit advisory tool developed by on blog posts, etc)? How can you give most technically savvy law firm Pinsent Masons in the UK that I your content personality (and maybe around. Unconventional PR gold. mentioned in an earlier article. This even humour) without eroding status tool, which represents a fairly hefty and credibility? Targeting blogs and investment in R&D, has resulted in Going viral doesn’t have to mean other online publications a huge amount of international thousands of views online. We’re As a lawyer, does it annoy you how exposure for the firm, as well as a looking for quality, not quantity. One everyone online has an opinion on large number of potential clients good prospective customer is likely what ‘the law’ is on any given topic who have used it to find out how to make any campaign worthwhile. and they’re happy to share it, irre- Brexit will affect their business. spective of how misguided they are? Using engineering as marketing Public relations and Then why not join in on the can be extremely effective and unconventional PR discussion? There are a huge it doesn’t have to cost a lot, if Every firm should retain the services number of online blogs and other anything. Simply come up with a of a good PR firm. Meet with your PR publications that are frequented by clever idea for something that your expert regularly and strategise about potential customers. Many of these customers will love to use and figure how to get press coverage for your are crying out for contributors with

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legal expertise – either as formal contributors (post writers, etc) or Notaries public even just commenters. Smart, funny and authoritative contributors are soon recognised by needed outside the community around any given blog or publication and this can be a great source of contacts and business leads. main centres And, if we’re to be honest, it can be fun contradicting gasbags who don’t know what they’re talking about. BY STEWART GERMANN Only scratching the surface none elsewhere. In the Manawatu/ These are only a few of the truly A notary public in New Zealand Whanganui region there are nine effective marketing techniques who obtains prior approval from the with one each in Taumaranui, that startups use to get maximum New Zealand Society of Notaries is Fielding, Levin, and Marton, three traction with minimum investment. appointed by the Archbishop of in Palmerston North, and two in Grab a copy of Traction by Gabriel Canterbury through the Faculty Whanganui. Weinberg and Justin Mares for more Office in London; and a notary There are two in Blenheim and detail on these and others. ▪ public will normally be asked to cer- four in Nelson while Canterbury tify the authenticity of documents and Otago are serviced quite well. Damian Funnell  damian. for use overseas. Usually, a notary However, when it comes to the [email protected] prepares a Notarial Certificate which West Coast there are no notaries in is founder of Choice Technology, is attached to a document presented Greymouth, Hokitika and Westport an IT services company, and to him or her certifying that the doc- so travel is involved for members  panaceahq.com, a cloud ument is a true copy of the original, of the public requiring notarial software company. He has a or is authentic. Sometimes in New services. In Southland there is one long-standing involvement with Zealand a notary is presented with in Gore and one in Invercargill. the legal services industry. a document in a foreign language To qualify for consideration as which he or she does not under- a notary public in New Zealand stand so the certificate needs to be a lawyer must hold a practising qualified. certificate of at least 10 years and There are over 200 notaries public out of that period have been a in New Zealand but there is a short- partner or principal of a law firm age in many provincial areas. For for at least five years. The Society example, in the Far North there is of Notaries would very much like one notary in Kaitaia and one in to hear from lawyers in rural areas Russell but none in Kerikeri. In the where there is a lack of notarial rest of Northland there are five in services who would qualify and Seminar and Whangarei and none in Dargaville. who are interested in carrying out Auckland is serviced very well but the process for applying to be a Symposium: in Waikato there are none in Huntly, notary public. ▪ Resolving Construction Otorohanga or Te Kuiti. Disputes In Coromandel there is one For all inquiries please email notary in Whitianga but none in Tracey Merlini, Secretary of Auckland, 8 Nov 2018 Coromandel Town, Thames or the Society at email: tracey@ Wellington, 21 Feb 2019 Whangamata. officeassistant.co.nz. For more In the Bay of Plenty there is one information on being a notary Christchurch, 22 Feb 2019 in Katikati, two in Rotorua, six in public visit the website: https:// Earlybird rates are available now. Tauranga, one in Whakatane and notarypublic.org.nz/ none in Te Puke. In Gisborne there www.aminz.org.nz are two. Stewart Germann is President 0800 426 469 In the whole of Taranaki there of the New Zealand Society of are three in New Plymouth and Notaries Inc.

57 PRACTICE November 2018 · LAWTALK 923

PRACTICE Working smarter to reduce the cost and burden of the discovery process

BY ANDREW KING

Simplifying how to deploy TAR Today’s increasing data volumes and the subse- TAR has been around for many years, although it is only quent cost of managing this data require us to work now starting to become mainstream. smarter and make better use of technology. Often what restricted TAR adoption was the work Technology Assisted Review (TAR) is a proven method required upfront with training and protocols, whilst also to effectively get through large volumes of information. justifying its use. The shift to more continuous active It is considerably faster, cheaper and more accurate than learning, whereby the technology continues to learn any human review method. as the review progresses has helped simplify the use Surely this cannot be a bad thing? and adoption of TAR. It has simply become too expensive to ‘eyeball’ every As TAR is always running in the background, you can potentially relevant document. At the same time the review choose if or when to use it. exercise is still the most time consuming and expensive This is beneficial as the legal team may not be certain part of the discovery process, but it doesn’t have to be. about deploying TAR at the outset, but know that they We need to work smarter to find new ways that enable can utilise it later if they choose. Often the onerous us to get to the most important information quickly nature of a discovery exercise is only fully realised once and cost effectively. the review is well underway. The advantage is it is easy Largely due to the ineffectiveness of traditional to quickly deploy TAR, which has been working in the approaches like using keyword search terms, new tools background, fully utilising your existing review work. like TAR have emerged to more accurately isolate the most important documents. When to use TAR? The use of TAR is most commonly used on large volume How does TAR work? matters. Put simply, TAR is when lawyers train the software in Usually anything with over 100,000 initial documents areas of relevance, with the computer using algorithms should consider the use of TAR. With document volumes to learn these calls and applying the calls to a wider set increasing on all matters, a couple of email mailboxes of documents. It is an iterative process that continues can easily equate to 100,000 documents. with the lawyer reviewing further documents until they It is not just a case of document volumes. are happy with the results. Lawyers are at the forefront of the TAR process. Empowering those with limited The software does not make the final calls on docu- resources and budgets ments, but instead helps prioritise the information for TAR is often thought of as a tool primarily for large lawyers to review. The legal team can then concentrate firms working with high document volumes, however on reviewing the most important information, instead TAR can be just as valuable for smaller firms that may of trawling through large volumes of irrelevant material. have limited resources and budgets. Smaller firms often Much of the information in discovery exercises can need to look for smarter ways to work to compete with be irrelevant, and we do not want lawyers investing larger firms on matters with large document volumes. their time (and the clients’ money), manually looking TAR also helps firms with less resources manage a at information that may be totally irrelevant for what matter that may otherwise have been too vast and costly you are after. By grouping similar documents together, for them to manage. By working smarter and embracing the technology enables a more consistent and accurate options like TAR, firms that have limited resources can document review. The irrelevant documents can quickly help produce faster, cheaper and better results than and easily be removed from the review set. competitors that use more traditional methods.

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Deploying TAR can enable firms to maximise the expertise of maybe Embracing the just one or two lawyers. This assists them to conduct the discovery exercise quicker and cheaper, so unknown and they can devote their energies into progressing the rest of the matter post the discovery process. the unexpected TAR is being used, and by more than A day in the life of you might think… TAR is frequently being used in New a sole counsel Zealand. Not all of these instances of using TAR make headlines or court BY GABRIELLE decisions, but there is an increasing O’BRIEN number that are using TAR in one form or another. Not everyone is using TAR in its fullest sense, but Thriving on opportunity the adoption of TAR is increasing In-house legal teams are an Being the sole legal face in the organ- all of the time. integral part of many New Zealand isation means that any time there is Typically once TAR has been used, organisations, both in corporate a legal query, there is an expectation the more likely it will be used on the organisations and in central and that the answer is only as far away next matter. local government; but what’s it like as a quick email or phone call, or For many it is just taking that to be the sole legal counsel in your even a conversation over the coffee first step. organisation? According to these mugs in the staff kitchen. A typical The objective of the discovery lawyers who have taken up that day seems only to be predictable by process should be to get only what challenge, it’s varied, unpredicta- its unpredictability. There is a need you need and do so in a way that is ble, different from any other legal to be both a generalist – covering off quick and cost effective. We should role they have held, and, without employment, intellectual property, all be looking at smarter ways to exception, they wouldn’t have it any privacy, contractual responsibilities tackle the discovery process. Any other way. and governance arrangements, etc, option that facilitates getting to the I recently spoke with three sole and a specialist – understanding most important information quicker counsel who have followed different the intricacies of the business, and cheaper, whilst helping to iso- career pathways and who enjoy having an in-depth knowledge of late irrelevant material, cannot be different working arrangements. the particular legal environment a bad thing. However, the need to be adaptable, the organisation is involved in and If you are finding eDiscovery both flexible and ready for whatever their understanding where a legal per- challenging and expensive, then organisation might need on any spective can add value to business Technology Assisted Review could given day is something that they planning. be your answer. all have in common. As well as being a readily available TAR will not be right for every matter, although it should be one of the options you consider if you Trusted practice management want to work smarter to reduce the cost and burden of the discovery software for NZ lawyers process. ▪ Easy to learn, easy to use. Save time and

Andrew King  andrew.king@e- increase profits. That’s what users say! discovery.co.nz is the founder of New: Document management & Internet banking. Free installation and E-Discovery Consulting. Andrew training. Visit our website for testimonials from firms just like yours. also organises LawFest, New Zealand’s legal innovation and www.jpartner.co.nz [email protected] 09 445 4476 JPartner Systems Ltd technology event.

59 resource for legal queries and advice, being roles. Perhaps, most importantly, there is satisfying and rewarding. a sole counsel includes the responsibil- recognition that a well-functioning sole ity of being involved at the front end of counsel is one who makes the most of Proactively managing risk projects. They anticipate need, identify the resources available to them, guards Risk is a topic that comes up repeatedly risk and add another perspective at the against complacency and builds in checks from the sole counsel I spoke to. They rec- planning table. Although that makes for a and balances to ensure they don’t fall into ognise that their role provides them with busy workload, there is satisfaction to be the trap of operating in an ivory tower. the opportunity to proactively manage gained from being involved with an issue The Government Legal Network provided risk for their organisations. As Mark through its life cycle, rather than dipping early support for Susanne Frances when noted, “legal risks are not always obvious, in and out, as may be more commonly the she first took up her role with the Ministry sometimes you have to seek them out”. case as an external adviser. for Pacific Peoples. She says she has bene- Although that can be challenging, there Recognising when external support will fited from a ready-made support network is a particular satisfaction in managing be required and managing the external that she has been able to access. This has risk well. Emily observed that being in a legal spend and relationship is another been provided both formally, through regu- sole counsel role offers the opportunity to skill set for the sole counsel. They need lar meeting with other chief legal advisers, become fully immersed within the busi- to be well versed in balancing the tension and informally in the working relationship ness, developing a deeper understanding between being a responsive, proactive she has built with other sole counsel and of the impact of certain risks, which in turn team member and recognising when the opportunity to piggy back off training builds a greater understanding of where unpalatable advice, however unpopular, initiatives in other organisations. an acceptable amount of risk might sit. may be necessary. Emily Acland from Vocus Group has Susanne says the nature of the role Combining all of the above in one made the most of her dotted line rela- means she must be up to date, and person is a big ask, but these sole counsel tionship with the legal team from the therefore confident in calculating risk in embrace the opportunity to build their Australian arm of her organisation, and an everyday context, given there is often knowledge and expertise across both the regular contact and support that it a requirement for just-in-time advice, legal and business issues. Without fail, provides. without the opportunity to go away and they commented on the satisfaction they Mark Boddington, Legal Counsel at undertake in depth research. gain from the variety, breadth and depth Scientific Software and Systems, highlights of their roles. the relationship with external advisors Flexibility in action and good channels of communication At first glance, it would be easy to assume It’s all about the relationships within the organisation as key support that the role of sole legal counsel does not For anyone who thought a lawyer might mechanisms. lend itself to flexible working arrange- be drawn to a sole counsel role because The relationships built with other ments. Although I did not set out to talk of the “sole”, think again! Each of these non-legal professionals and colleagues to sole counsel who work flexibly, both lawyers emphasise the importance of within their organisations, and the diverse Mark and Susanne, and their organisations, the relationships they have both within thinking that working with those who have model flexibility in action. their organisations and externally, which other skill sets promotes, is an element of Mark and his partner relocated from means they feel well supported in their the role that each identified as particularly Wellington to Nelson two years ago after

60 LAWTALK 923 · November 2018 PRACTICE

the birth of their first child to achieve the holy grail of parenting – wider family support. Mark now provides legal support to his organisation, which has staff in Wellington, Auckland, Sydney, Melbourne, Italy and Scotland, by splitting his time between Nelson and Wellington. Efficient information technology systems and Mark Boddington a keen eye for the most effective use of his time provides Mark with the flexibility to live in the region that suits his family best, Mark Boddington has whilst undertaking the work of his choice. been employed as legal Susanne has primary caregiver responsibilities for her four counsel at Scientific children. This is managed in a ‘week on, week off ’ arrangement Software and Systems with her ex-husband. A flexible arrangement that has her in the since 2014. Previous office from 9am-2pm in those weeks, as well as being available experience gained in via phone or email outside those hours, means that she is able to the regulatory and com- balance both her parental responsibilities and provide the support pliance team of a multi- the organisation needs. national corporation and his academic background in information technology Celebrating progress law led Mark to a role that combines his Each of these sole counsel spoke rather wistfully of the expectation various interests. Mark was the winner of that they had when they first started the role. They anticipated the 2018 ILANZ Young In-house Lawyer that they would eventually reach the “quiet time” or as Emily of the Year. put it, an expectation that “if I just get this done, then I’ll be on top of things”. Emily Acland They have all come to the conclusion that the nature of the role means that is never likely to happen. Rather than see this Emily Acland is General as a disappointment, the consensus was that this provides the Counsel, New Zealand opportunity to enjoy the moment and embrace the ever changing for Vocus Group, a opportunities the role brings. Susanne noted that it’s also important provider of telecommu- to look back and monitor progress and keep some perspective on nication and electricity what has been achieved. services across Australia The fast-natured pace of change in many organisations means and New Zealand. Emily a sole counsel might never quite get to the end of the ‘to do’ list, started her legal career but there is huge satisfaction in making some progress, as well as as a private practice solicitor, firstly playing a pivotal role in the achievements of their organisations. ▪ in New Zealand and then in a “magic circle” firm in London before moving to Gabrielle O’Brien  gabrielle.o’[email protected] is an in-house team for an ASX/NZX listed Executive Manager of ILANZ. company on her return to New Zealand. She took up her role at Vocus in 2016. Susanne Frances Some tips for success in a sole counsel role • Choose an industry, organisation that aligns with your Susanne Frances interests. (formerly Susanne • Don’t rush into a sole counsel role – build some expe- Ruthven) is Chief Legal rience whether that is a grounding in private practice, Advisor at the Ministry being part of an in-house team or developing an in-depth for Pacific Peoples. knowledge in a related role in the industry. With a background as • Try to learn all facets of the business – know what the a government lawyer business does, why and the culture and values that drive and then a barrister in decisions. the areas of public law, constitutional • Pay attention to relationships – they will help you be law, international law and human rights resilient and you will experience great generosity from and two stints as a Green Party electoral other practitioners and colleagues. candidate, Susanne has always had a • When you first start – “look under the hood” of passion for improving outcomes for everything, then decide your priorities. those who are not represented at the • Appreciate non-lawyers for the skills they have – think decision-making table. A role in the outside the box when you are identifying what resources ministry combines this passion with the are available in your organisation. opportunity to be more directly involved in shaping positive outcomes.

61 Sign up to the New Zealand Law Society’s Gender Equality Charter

Be part of a community leading change in the legal profession. Demonstrate your commitment to gender equality to your staff and clients.

▸ Lead from the top ▸ Make a plan and take action ▸ Measure progress

GENDER EQUALITY #leadthechange CHARTER NEW ZEALAND LAW SOCIETY To find out more visit www.lawsociety.org.nz LAWTALK 923 · November 2018 FUTURE OF LAW

FUTURE OF LAW

Developments

Comic-strip work contracts

BY ANGHARAD O’FLYNN

Global engineering and infrastructure advisory company Aurecon has replaced its standard employment contract with a visual, interactive version. Developed in partnership with Law Professor Camilla Andersen from the University of Western Australia, Aurecon’s visual contract’s comic-strip design removes more than 5,500 words used in the company’s previous traditional employment contracts and explains the employment agreement in a more user-friendly format while still functioning as a legally binding document. Why? Aurecon decided to change to visual employment contracts after noticing the standard, legalese-heavy he says. template lacked meaningful employee engagement “Visual contracts have previously and trust. been used in a limited contact or “We were considering the entire employee experience for vulnerable or illiterate workers, at Aurecon and, in particular, the on-boarding process [and] Aurecon’s contracts apply to and how we could improve that initial experience that all new staff, across all levels.” people have when they join a large business. We also decided to use the employment contract as an exemplar The origins of the of thinking innovatively as part of our focus on shaping curious contract the future of work,” says Liam Hayes, Aurecon’s Global The original visual contract concept Chief People Officer. Aurecon’s design was created by South African “We saw the visual contract as a way to demonstrate visual commercial attorney Robert de to our staff and new hires the culture we are seeking to contract’s Rooy. build, particularly around two of our Aurecon Principles: comic-strip Mr de Rooy is a practising lawyer Make the complex simple and Be playful with serious intent.” design... in Cape Town and developed the Mr Hayes says their design brings improved compre- explains the visual design concept after seeing hension, understanding and meaning to the employee employment the vulnerability of people who sign transition, and an introduction process by “providing agreement in a contracts they don’t understand, something that will actually be read by new employees more user- especially those from poorer regions as a new, more open way to commence a really impor- friendly format of South Africa who have little to no tant relationship”. while still education. “Aurecon is the first company in Australia and New functioning The illustration-heavy contract Zealand to do anything like this on a large scale and we as a legally was first used to explain the understand that we are the first company worldwide to binding employer-employee agreement implement visual contracts for all levels of employment,” document. between a South African citrus fruit

63 FUTURE OF LAW November 2018 · LAWTALK 923

Quest for a Bequest: a new online service for lawyers working on bequests

BY NICK BUTCHER picking company and its employees, organisation under that umbrella. many of whom have very limited Upper Hutt lawyer Reg Newell Our aim is to set out the various literacy skills. The contract is still and his wife Heather, an experi- component parts that a client could legally enforceable should the need enced fundraiser, have created choose and therefore make it very to do so arise. a new online registry service to simple but comprehensive,” he Mr de Rooy’s idea has been manage bequests or legacies left says. picked up by small pioneer groups to charities. of legal and business profession- Mr Newell explains that the Over 700 entries als around the world. Camilla initiative at www.questforabequest. on website Andersen is in one of the groups co.nz came about through frustration The Quest for a Bequest website exploring applications for visual when dealing with these matters. already has over 700 entries list- contracts across many different “Some of the information I was ing charities that have received a types of contracts. receiving from clients wasn’t com- bequest over the past four years. After hearing Professor Andersen pletely accurate and with wills there Heather Newell says a question discuss her work on a radio inter- is no room for inaccuracy, it has to she often asks charity organisations view, Aurecon’s Chief Innovation be 100% correct, otherwise you open is: how hard is it to leave a bequest Officer, John McGuire, ran the con- yourself up to possible professional to your organisation? cept past Liam Hayes. Following a negligence, but fundamentally you “What they (charities) often do consultation and design process, are also doing a disservice to your is produce brochures, send them their visual contract was rolled out client. to lawyers and hope lawyers will in the company’s offices in Australia, “I do a lot of work with con- realise this charity is looking for New Zealand and South Africa. veyancing, wills and estates. I’ve bequests. But it doesn’t often work To date, the contracts have had situations where some clients like that,” she says. received encouraging feedback from would provide me with a very Reg Newell says the website staff who “feel engaged, motivated general description of a charity that clears up any confusion or misun- and positive about their employ- they wished to leave money to in derstanding some people may have ment relationship [with Aurecon],” their will. It was quite challenging about charitable organisations that says Mr Hayes. because sometimes I’d try and find carry out similar tasks but are not “In 2019 we will be conducting the legal description of the charity the same organisation. formal feedback research, with and often I’d end up ringing the “For example, in Wellington we the assistance of Professor Camilla organisation concerned and that have the Wellington Free Ambulance Andersen, to collect quantitative too would sometimes cause further which is not the same as St John and qualitative feedback from our problems,” he says. Ambulance. If someone was to do staff who have joined Aurecon by Bequests run into millions of a search, this information would signing up to our innovative visual dollars each year, and while it may be made clear and often people are contracts.” appear straightforward in that confused by it,” he says. Visual contracts are an emerg- someone leaves a sum of money to The Quest for a Bequest website ing discipline and part of a grow- a charity, the challenge is often in is free for the public to use but is ing, broader global movement identifying the specific charity the mostly aimed at estate lawyers who to simplify contracts, bridging money is to go to. are drafting wills. gaps between a company and its “It can be very complex. Charities The New Zealand Law Society employees. tend to compartmentalise them- still receives inquiries about the NZ “The issue of engaging our talent selves if they’re large and include Charity and Legal Gazette, which was and building their trust is becoming a foundation, a trust, or even a published annually and provided one of the biggest competitive dif- regional organisation. Sometimes details of charities. This ceased ferentiators across many industries there’s also confusion as to whether publication with the death of its and companies,” says Mr Hayes. it’s a national organisation or a local owner and editor, Michael Woolf.

64 LAWTALK 923 · November 2018 FUTURE OF LAW

Realforms takes the Developments pen away from sale and Developments provides information on new initia- purchase agreements tives and findings relevant to the delivery of legal BY CRAIG services in New Zealand STEPHEN and overseas. Information is provided to alert members of the legal profession and ideal environment for Realforms,” does not imply endorse- A New Zealand company has he says. ment by the New Zealand developed a way of conducting a In late September a Christchurch Law Society. house sale and purchase agreement real estate agency initiated the sale entirely online. of a property through Realforms. Realforms New Zealand says an audit trail of who did what and a recent agreement was drafted, Four vendors and when. e-signed, negotiated, edited, one purchaser Digital fraudsters have recently accepted and finalised for a resi- One Agency Morris Properties turned their attention to property dential property in Christchurch Owner Michael Morris conducted sales and this winter the ANZ Bank without the use of a piece of paper the sale between four vendors and advised its clients of an increase or a pen. one purchaser. in fraudsters stealing real estate The secret of it is in having e-sig- Realforms says Mr Morris began deposits by compromising email natures legally binding. the process by drafting the digital addresses, usually the real estate “This is the future of the way busi- Sale and Purchase Agreement agent’s email. ness will be done in real estate, and through the Realforms web appli- There have also been recent indeed in lots of other contractual cation, entered the purchasers’ instances of attempted frauds areas, and it’s great to be a leader details, linked their email address to on lawyers involved in property and partner in it,” says Realforms their e-signatures, then through the transactions through alteration of CEO Jordan McCown, who claims application, emailed the digital S&P. bank account details during the the process is a world-first. The purchasers digitally accepted transaction. “We’re thrilled this world- each section of the S&P – which usu- first occurred in New Zealand. ally requires printing and initialing Scam prevention Initially, we were going to launch each page – and were prompted to Mr McCown says the company will in Australia, but, their e-signature download a government guide and have stronger measures in place legislation was archaic in compari- e-signed (which usually requires from 2019 to prevent scams. son to the more modern legislation printing, ink, and scanning) and “At the moment we wouldn’t in New Zealand.” submitted the agreement. be able to guarantee prevention He says the Electronic The S&P was sent to the vendor’s of such scams. However, from 1 Transactions Act 2002 specifies that conveyancer who then requested January next year, we will offer electronic witnessing is legal. three amendments on three sepa- global electronic identification to Mr McCown says that while S&P rate occasions. On each occasion Mr assist agents, solicitors and banks agreements in New Zealand don’t Morris made these amendments in in their due diligence process. This require a witness, there are other the Realforms web application to will greatly assist all parties in AML supplementary agreements such the S&P and re-sent the agreement compliance.” as the pre-settlement disclosure to all parties who digitally accepted The Realforms web app is secured statement – which is required for the changes. through the Google Cloud Platform, apartments – that do require a The four vendors then electron- Cloudflare and bank-grade SSL witness. ically signed and submitted the Certificates. “We wanted to operate in an digital S&P. Mr Morris dated the Mr McCown says the firm is in the environment with just one agree- agreement and clicked finalise, process of creating digital versions ment and a progressive electronic at which time the Realforms web of NZRET’s deposit forms. transactions act and little or no app locked the document from any For more information go to competition. New Zealand is an further online changes and attached Realforms.co.nz.

65 THE JUSTICE SYSTEM November 2018 · LAWTALK 923

THE JUSTICE SYSTEM

Publishing Of Chief prices works in England Justices BY GEOFF Publishing legal services pricing ADLAM information is likely to help to overcome some of the key barriers that discourage small businesses from accessing legal ser- vices, research by the England and Wales It will be the end of an era early in 2019 when New Solicitors Regulatory Authority says. Zealand’s 12th Chief Justice retires. A trailblazer in many ways, The research, published as Price transpar- Dame Sian Elias will have been the third-longest serving Chief ency in legal services – a study of small busi- Justice since Sir William Martin’s appointment on 10 January 1842. nesses with legal issues, reported on a survey Dame Sian was the first woman to be appointed Chief Justice. of 1,004 small business owners/managers The Senior Courts Act 2016 states that she must retire from both and a subsequent randomised contact trial the role and the judiciary before her 70th birthday, which will be with 3,000 small business owners/managers. on 13 March 2019. She has been our Chief Justice for nearly 20 The survey explored how small businesses years – 73% of all women lawyers and 61% of the entire profession choose and use legal and other professional have been admitted since Dame Sian’s appointment. service providers to address problems relat- The role of Chief Justice can be traced back in England to 1234, ing to debt recovery and human resources when William de Raley was appointed Chief Justice of the King’s matters. The trial tested how publishing price Bench. Our first Chief Justice was also our youngest on appoint- information affected choice of provider by ment. William Martin was called to the English Bar in November presenting scenarios where they might seek 1836 and was aged 34 when he took up the role on 10 January 1842 a professional services provider to assist with after a four-month voyage from England. It is likely that Martin debt recovery and asking them to choose CJ had never appeared in court before the first sessions of New between a solicitor, accountant and debt Zealand’s (then) Supreme Court in Auckland on 28 February 1842. recovery adviser. The SRA had an agenda with the research, Head of judiciary as from December 2018 new Transparency The Senior Courts Act 2016 states that the Chief Justice is the head Rules will require all regulated law firms of the New Zealand judiciary (s 89) and senior to all other judges and individual freelance solicitors who (s 120). Section 99 says a person may only be appointed Chief offer certain services, to publish informa- Justice if that person is a High Court Judge or appointed a High tion on the prices they charge. Court Judge at the same time as being appointed the Chief Justice. Some of the findings: If a Court of Appeal Judge is appointed Chief Justice, that person • Small businesses identify a lack of immediately ceases to hold office as a Court of Appeal Judge. readily-available price information, and Section 94 says a person may only be appointed a judge or the complexity of information which is associate judge if they have, for at least seven years, held a New currently available, as the main barriers Zealand practising certificate as a barrister or as a barrister and to them finding a new solicitor when solicitor. If you’ve been in practice for at least seven years, you they have a legal need. are theoretically eligible for appointment as Chief Justice – along • 42% of small businesses already spend with 10,154 other lawyers at mid-October. time searching the internet when look- The tenure of office for Chief Justice is covered by section 127, ing for legal service providers, while 75% with resignation, retirement or removal from office the options. would spend more time doing so if more Section 131 provides that a judge may at any time resign in writing accessible information was available to the Attorney-General and section 131(b)(i) provides that a judge online. may resign from the office of Chief Justice but still remain in • Small businesses without access to pric- office as a High Court Judge. However, section 132(a) requires the ing information assumed solicitors were Governor-General’s approval for this to happen. more expensive (by around 22%) when One of our Chief Justices carried on past the mandatory retire- compared to the actual costs reportedly ment age. Sir Michael Myers’ 72nd birthday (the retirement age at paid by small businesses in the past. that time) fell on 6 September 1945 but the Government wanted

66 LAWTALK 923 · November 2018 THE JUSTICE SYSTEM

him to represent New Zealand as Chief Marlborough/Nelson water, with three coming from there. Justice at international conferences in the aftermath of World War II. The Judicature Longest tenure Amendment Act 1945 allowed extension Sir Robert Stout had the longest tenure as Chief Justice. As well as of his term for another year. A Wellington in the law, he attained the top positions in politics and education. District Law Society dinner to farewell Sir Arriving in New Zealand from Scotland at the age of 20 he took up Michael was changed to a Victory Dinner law a few years later and was admitted to the Bar in July 1871 when to welcome home returned services law- aged 26. He was the first law lecturer at the University of Otago, yers. Sir Michael finally retired on 31 July from 1873 to 1875 and then began an interesting and turbulent 1946. political career. He was Attorney-General and then premier from Incidentally, the age for judicial retire- 1884 until he lost his parliamentary seat in 1887. Throughout his ment was lowered to 68 in 1980 but raised time in politics he continued to practise law. He was also a member to the present 70 in 2007. of the senate of the University of New Zealand from 1885 to 1930 and chancellor from 1903 to 1923. Retiring from politics in 1898, NZ-born he was appointed Chief Justice a year later. The sixth Chief Justice, Sir Michael Myers As Chief Justice, Sir Robert decided over 1,400 cases – including made history in being the first Chief Justice 450 as a member of the Court of Appeal. “His judgments show to be born in New Zealand. He was also great confidence in the correctness of his opinions, enormous the first to have graduated in law from a industry and wide general knowledge; but they were seldom the New Zealand university and the first to product of prolonged deliberation, often being written in haste have practised as a barrister sole before and lacking literary quality. One in three cases taken on appeal his appointment. from his decisions was successful,” David Hamer writes in the Hampered with deafness late in his Dictionary of New Zealand Biography. career, Sir Michael was once having The shortest tenure was that of Sir Charles Skerrett, who died difficulty hearing FC Spratt, a leading in office after serving for three years. Sir Charles was one of the counsel and a prominent teetotaller and first New Zealand lawyers appointed King’s Counsel in 1907. There prohibitionist. After being asked to speak has since been just one Chief Justice – Sir Harold Barrowclough up several times, Mr Spratt said very loudly, – who was not a KC or QC on appointment. Just two years after “Does your Honour want me to shout?”. his appointment, illness meant Sir Charles could not carry out his “No,” replied the Chief Justice, “I don’t judicial duties and he finally had both legs amputated because think that would be in accordance with of thrombosis. He decided to go to England to seek advice about your principles, Mr Spratt.” (Portrait of a artificial limbs but died during the voyage. Profession, page 116). While not being appointed QC or KC, Sir Harold Barrowclough Speaking at the Victory Dinner, Sir had by far the most glittering military career of our Chief Justices. Michael revealed – to the surprise of many Awarded a DSO for “conspicuous gallantry and able leadership” in – that the appointment of the Chief Justice World War I, he ended World War II as a Brigadier commanding was the prerogative of the Prime Minister. the 3rd New Zealand Division in the Pacific. He was awarded a That endures today: the Chief Justice is bar to his DSO, this time for “conspicuous bravery and brilliant appointed on the recommendation of the leadership”. Returning to the law after the war, his appointment Prime Minister, while every other judge as Chief Justice was a surprise to many. “Barrowclough was gen- is appointed on the recommendation of erally considered a better soldier than he was a lawyer,” says JAB the Attorney-General (s 100 Senior Courts Crawford in the Dictionary of New Zealand Biography. Nevertheless, Act 2016). Sir Harold managed finally to get New Zealand a permanent Court Interestingly, the last two Chief Justices of Appeal in 1957 and was held in high regard by the judiciary have both been born outside New Zealand. and the profession. Sir Thomas Eichelbaum’s family emigrated here from Germany in 1938 to escape the Court of Appeal persecution of Jews when he was aged The establishment of the Court of Appeal and the new role of seven. He was naturalised in 1946. Dame President began an interesting relationship with Chief Justices Sian was born in London and arrived here which endured until 2004 when New Zealand established the as a toddler. Her “technical” birth outside Supreme Court over which the Chief Justice presides. “While at New Zealand means that over half – seven times relationships between the Chief Justice and the President – of our Chief Justices were born overseas. of the Court of Appeal were congenial and co-operative, at other Of those who were New Zealand-born, times there were unfortunate tensions. Certain Presidents of the there is obviously something in the Court believed that the positions of the President and the Chief

67 THE JUSTICE SYSTEM November 2018 · LAWTALK 923

Justice should be combined,” Peter Spiller recalls accompanying Sir Ronald Davidson on an annual fly fishing notes (New Zealand Court of Appeal 1958- trip and encountering a diligent fisheries officer who wanted to 1996, page 23). impound the fishing gear of one of the group who had left his Until the appointment of Sir Thomas licence in his car. Eichelbaum in February 1989, all Chief “Sir Ronald offered to vouch for the man for the time it took to Justices were traditionally appointed walk back to the car. When she rudely asked who he was he replied directly from the Bar and had not served simply and truthfully that he held the office of Governor-General on the bench. This is still theoretically (the incumbent was out of the country). There was no more talk possible, but it is extremely likely that Sir of confiscation. That was the only occasion that I ever heard Sir Ronald Davidson will be the last direct Ronald ‘pull rank’.” (www.nzcpr.com). appointment. During his tenure Sir Ronald Davidson oversaw major Sir Ronald himself expressed his delight restructuring of the courts. This continued to be the first retiring Chief Justice to through Sir Thomas’ term and also during administer the oath of allegiance to his that of Dame Sian. The role of Chief Justice successor, Sir Thomas Eichelbaum. All is pivotal to the functioning of our courts. previous appointees were sworn in by a The Ministry of Justice states its main judge of the High Court. “Circumstances as responsibilities are acting as head of the they now exist make it extremely difficult Supreme Court, acting as Administrator of for a person to be appointed directly from the Government in the absence or incapac- the Bar with no previous experience of ity of the Governor General, liaising with judicial work or of judicial administration,” If you’ve been the Government on policies or practices Sir Ronald said. in practice for that impact upon judicial administration Clause 12 of the 1983 Letters Patent at least seven and the discharge of judicial responsibil- Constituting the Office of Governor-General years, you are ities, speaking for the judiciary, and with of New Zealand states that whenever the theoretically administrative responsibilities for the Office of Governor-General is vacant, or the eligible for Supreme Court and High Court (through incumbent is unable to perform any of the appointment the Chief High Court Judge). When ending functions of the office, the Chief Justice as Chief his term as our first Chief Justice in 1857, is authorised and empowered to perform Justice – Sir William Martin was one of four superior the functions of Governor-General. While along with court judges who had been appointed. doing so, the Chief Justice is to be known 10,154 other Today, with Dame Sian there are four other as the Administrator of the Government. lawyers at Supreme Court, 10 Court of Appeal and 46 Former District Court Judge Anthony Willy mid-October. High Court Judges and Associate Judges. ▪

Chief Justices of New Zealand

Chief Justice Born Age Appointed Resigned Tenure Sir William Martin Birmingham, England 34 10 Jan 1842 12 Jun 1857 15 years 5 months Sir George Arney Salisbury, England 48 1 Mar 1858 31 Mar 1875 17 years Sir James Prendergast London, England 49 1 Apr 1875 25 May 1899 24 years 1 month Sir Robert Stout Lerwick, Scotland 54 22 Jun 1899 31 Jan 1926 26 years 6 months Sir Charles Skerrett India 62 1 Feb 1926 13 Feb 1929 3 years Sir Michael Myers Motueka 55 3 May 1929 7 Aug 1946* 16 years 3 months Sir Humphrey O’Leary Redwoodtown, Marlborough 59 12 Aug 1946 16 Oct 1953 7 years 2 months Sir Harold Barrowclough Masterton 59 17 Nov 1953 17 Jan 1966 13 years 2 months Sir Richard Wild Blenheim 54 18 Jan 1966 20 Jan 1978 12 years Sir Ronald Davison Kaponga 57 3 Feb 1978 4 Feb 1989 11 years Sir Thomas Eichelbaum Königsberg, Germany 57 6 Feb 1989 17 May 1999 10 years 3 months Dame Sian Elias London, England 50 17 May 1999

*Extended by Act of Parliament.

68 LAWTALK 923 · November 2018

THE JUSTICE SYSTEM Conference will celebrate Dame Sian’s achievements

“Sian Elias is being appointed [Chief Justice] because of her outstanding legal ability, her empathy with the community in all its diversity and the leadership and foresight she will bring to this role. “At the age of 50, she is in the vanguard of a new generation of leaders in the New Zealand judiciary. She legal profession to acknowledge the Chief Justice upon is a modern judge with a strong sense of the challenges her retirement. New Zealand will face in the future.” The line-up of international speakers includes: The 24 March 1999 statement by then Prime Minister • Justice Rosalie Abella (Supreme Court of Canada), Jenny Shipley holds true two decades later. There have • Professor Stuart Banner (Norman Abrams Professor been major changes in society, politically and in the justice of Law, University of California), system during Dame Sian’s tenure as Chief Justice, but • Justice Manuel José Cepeda Espinosa (President of she has remained a highly visible and strong leader. It’s the International Association of Constitutional Law, worth quoting another part of Mrs Shipley’s statement: and former Justice and President of the Constitutional “Perhaps the most outstanding contribution Sian Elias Court of Colombia), has made to New Zealand law is her advocacy on behalf • Justice Susan Kiefel AC (Chief Justice of the High of Māori before the courts and the Waitangi Tribunal. Court of Australia), That took vision, courage and commitment. The respect • Sir Anthony Mason AC KBE (former Chief Justice of she has built among Māori as a result of that work is of the High Court of Australia), lasting importance to us all.” • Justice Kate O’Regan (Director of the Bonavero Dame Sian’s retirement in early Institute of Human Rights, Faculty of Law, Oxford 2019 will be marked by a conference University, and formerly of the Constitutional Court in Auckland at which distinguished of South Africa), international and New Zealand • Laureate Professor Emeritus Cheryl Saunders speakers will explore tradition and (Melbourne Law School, University of Melbourne), direction in the law. • Professor Jeremy Waldron (School of Law, New York The two-day conference will run University), from 31 January to 1 February and Dame Sian’s • Professor Christina Voigt (University of Oslo). will be held at the Fisher & Paykel retirement in New Zealand speakers include: Auditorium, University of Auckland. early 2019 will • Professor Richard Boast QC (Faculty of Law, Victoria It will close with a special dinner at be marked by University of Wellington), the Auckland Museum on Friday, 1 a conference • Sir Kenneth Keith QC (retired Judge of the Supreme February. in Auckland Court of New Zealand), The conference is being hosted by at which • Professor Janet McLean (Faculty of Law, University the Legal Research Foundation, with distinguished of Auckland), the support of the New Zealand Law international and • Professor Paul Rishworth QC (Crown Law Office), Foundation. It will be chaired by Law New Zealand • Professor Peter Watts QC (Barrister, Bankside Foundation Chair Dr Andrew Butler. speakers will Chambers). The Legal Research Foundation explore tradition Further details about the conference programme will be says the conference is the principal and direction in available shortly. Pre-registration information is available opportunity for the New Zealand the law at www.legalresearch.org.nz or [email protected]. ▪

69 ACCESS TO JUSTICE

ACCESS TO JUSTICE McKenzie friends: there’s more of them, but what do they actually do?

BY TRACEY CORMACK

Between 1992 A McKenzie friend is someone who attends court and 2012 in support of a party that does not have legal the number representation. of McKenzie The term originates from the British caseMcKenzie v friends McKenzie [1970] 3 All ER. This was a divorce proceeding appearing in where the husband had been legally aided in earlier the High Court stages of litigation, but his legal aid was terminated and Court of before the trial started. Appeal was At the start of the trial the husband had an Australian about one to barrister, Ian Hanger, sitting beside him who was not three per year. able to practise in England. The trial judge ordered Mr Since 2013, Hanger not to participate in proceedings. Later, the however, the Court of Appeal found that the judge should not have number has prevented Mr Hanger from assisting the husband in the increased, with way that he proposed to do, and that justice was not a peak of 22 done in those circumstances. cases in 2015. Davies LJ referred to the earlier case Collier v Hicks (1831) 2 B & Ad at 669: “Any person, whether he be a professional man or court and the low threshold for legal aid are creating not, may attend as a friend of either party, may take a climate where the self-represented litigant may see notes, may quietly make suggestions, and give advice; a McKenzie friend as a viable alternative to a lawyer. but no one can demand to take part in the proceedings New Zealand Law Society Library research shows a as an advocate, contrary to the regulations of the court steady increase in McKenzie friend participants in court. as settled by the discretion of the justices.” Between 1992 and 2012 the number of McKenzie friends McKenzie friends are widely used in the United appearing in the High Court and Court of Appeal was Kingdom. Organisations such as Court Without a Lawyer about one to three per year. Since 2013, however, the have been set up to streamline the process and provide number has increased, with a peak of 22 cases in 2015. McKenzie friend services in a structured and consistent Although their participation in court is still relatively manner. In 2010 the Master of the Rolls and President low, questions have arisen regarding the role, rights and of the Family Division issued joint Practice Guidance responsibilities of McKenzie friends in New Zealand. concerning the proper approach courts should take to the provision of reasonable assistance by non-lawyers New Zealand High Court to litigants-in-person in respect of McKenzie friends. In a recent High Court decision, Craig v Slater [2017] NZHC This clearly sets out the rights of litigants in respect of 874, Mr Craig applied for permission to be assisted by a McKenzie friends. McKenzie friend in court. The unusual feature was that the proposed McKenzie friend was a practising barrister. Increased use of McKenzie friends here The defendants opposed the application on the basis that New Zealand appears to be following the UK path where the McKenzie friend was a barrister. Justice Toogood questions over access to justice, the costs of going to allowed the application with the conditions that the

70 McKenzie friend: apply as between the accused and lawyer and that the material was • Sit beside Mr Craig in court; a lawyer acting as a McKenzie helpful. • Take notes; friend? • Quietly make suggestions to Mr • What duties would a lawyer Consultation papers Craig and give advice; acting as a McKenzie friend owe While it is accepted by the New • Propose questions and submis- to the court as distinct from any Zealand courts and the Law sions to Mr Craig who may put duties that might be owed to the Commission that self-represented the same before the court; and accused? litigants should have the right to a • In rare circumstances, and only • What liability might the lawyer support person in court, this prin- with the further leave of the court, have to the accused? ciple has not yet been codified into address the court. • What control would the court our legislation. In addition, the McKenzie friend have over a lawyer acting as a Concerns about the role and scope was not permitted to ask any wit- McKenzie friend rather than an of McKenzie friends have been revis- ness a question. advocate in the usual case? ited in the UK and in New Zealand. Referring to the Court of Appeal Mr Craig wanted cost-effective A consultation paper issued by the decision on McKenzie friends, R v assistance from a lawyer experi- New Zealand Law Commission Hill [2004] 2 NZLR 145, Toogood J enced in defamation and Toogood Review of the Judicature Act 1908: raised several issues that might arise J commented that the material Towards a New Courts Act (NZLC when allowing a lawyer to act as a presented by Mr Craig in relation to R126, 2012) addressed the subject McKenzie friend: interlocutory matters had the stamp of McKenzie friends. Questions • Would legal professional privilege of a qualified and knowledgeable asked by the New Zealand Law

71 ACCESS TO JUSTICE November 2018 · LAWTALK 923

Commission included: who may know the court system. • Whether submitters had experienced any problems In this practitioner’s opinion “… with the use of McKenzie friends; the legal system makes bringing or • Whether McKenzie friends should continue to be defending certain claims time-con- permitted; and if so, suming and complex and may • Whether there is a need for legislation, regulation or encourage people bringing or facing guidelines outlining their roles in New Zealand courts; claims to resort to McKenzie friends. • Whether a person should be permitted to have a For example, the Disputes Tribunal lawyer as a McKenzie friend. jurisdiction is capped at $15,000 or, In response, there was widespread support for McKenzie if the parties agree, $20,000. What friends – provided they are unpaid and confined to their about a claim for, say, $21,000? A current role in court. The Commission’s view was that claimant may limit their claim to self-represented litigants should be able to have a $15,000 or hope the other party support person with them in court unless that person ▴ Tuhi Ruawai will agree to the Disputes Tribunal obstructs the administration of justice. The Commission having jurisdiction, but even then also considered that there is merit that such a provision the Disputes Tribunal will be limited be included in new courts legislation. to $20,000. Why should a claimant have to compromise that way before Lawyers as McKenzie friends? they even begin? In those circum- The Law Society and the New Zealand Bar Association stances the temptation would be did not support lawyers being McKenzie friends strong to have a McKenzie friend (although the Law Society would allow it in exceptional instead of a lawyer.” circumstances) and instead suggested that, if practising This lawyer also raised potential lawyers wish to support a person who cannot afford concerns, such as what training legal representation, the better approach would be or vetting, if any, the McKenzie for the lawyer to act in a pro bono capacity. The Law friend had had, and that it would Commission agreed with this. Concerns identified are be difficult to ascertain whether that lawyers are subject to ethical obligations to their the McKenzie friend was a ‘fit clients and have duties to the court and that combining and proper’ person for the case. the two would blur the roles and lead to confusion. He added that lawyers owe their first duty to the court but to whom Thoughts from the Bar does a McKenzie friend owe their What do lawyers involved in litigation think about allegiance? McKenzie friends? Members of the New Zealand Bar Association were asked for their views. The respondents Thoughts from a preferred to remain anonymous. McKenzie friend One barrister had encountered McKenzie friends in Former lawyer Vinay Deobhakta has court and did not support them as, “…they are often started a business based on a similar do-gooders who are emotive and don’t help, or alterna- model as the UK organisation Court tively charlatans who think they are de facto lawyers and Without a Lawyer. His organisation, are, in reality, shysters who are ripping off their ‘clients’.” McKenzie Friend Professionals This practitioner felt McKenzie friends often hampered Ltd (MFPL), provides training for the court process and that their role should remain lim- Over the last 20 self-represented litigants as well as ited so that they can only address the court at the dis- years I personally training for those who might wish cretion of the presiding judge. McKenzie friends should have witnessed to become a McKenzie friend. Mr not be entitled to payment. The practitioner added that an increase in Deobhakta was struck off the roll of lawyers and/or enrolled barristers and solicitors should requests. I think barristers and solicitors in 2014 and not be allowed to act as McKenzie friends, and that they legal fees are is now based in Australia. should represent their clients as officers of the court and getting too high therefore be subject to the same rules and sanctions but also people Tuhi Ruawai trained as a McKenzie that exist for all lawyers before the court. prefer to be friend with MFPL and was asked Another practitioner thought that people use a with someone about the role of a McKenzie friend. McKenzie friend for a number of reasons, and not just they know like cost. He said many people see lawyers as difficult to whānau who can What is your background deal with, or have difficulty finding a lawyer they can support them. and what prompted you to relate to. Some, feeling that lawyers are unapproachable, Especially so for train as a McKenzie friend? instead resort to using a well-meaning acquaintance Māori. “I was invited to attend a

72 LAWTALK 923 · November 2018 ACCESS TO JUSTICE

presentation that Vinay was holding in Taneatua (near business background I’m frequently asked about issues Whakatane) on the topic of McKenzie friends some years in the employment and disputes tribunal.” ago. So I listened and asked questions of Vinay. What How are you treated by the other came of the discussion resonated really well with me, I court staff/lawyers/judges, etc? could see possibilities here for us lay people. So I decided “Since I did the training I have been treated really well to begin training as a McKenzie friend. by everyone and can say I’ve had no problems at all “I had been helping in my community for a while as and neither have my clients. I have had three cases as a support person offering my thoughts and just helping a McKenzie friend since accreditation and all three have with the written language, punctuation and so on. I been successful. One was in the Disputes Tribunal and wanted to learn more and get better results. There was the other two in the Family Court. a lot about the court system I didn’t understand and I “Previously my experience had been different. I never had witnessed my kaumatua helping people through felt I was truly being respected by the other court users the court system. It appeared to me that their work was and sometimes even my own clients. The training puts not effective and it needed people like me to upskill and you on a totally different level. We even have a system help them through the Family Court, so I thought I would where we file our CV with the self-litigant’s notice that enrol to upskill and make an effort to do it properly.” they are bringing a McKenzie friend. This way the judges know well before what is happening and who we are and Can you outline the training you have had our background with proof we’ve had MFPL’s training. and has it been helpful in your role? Do I’ve immediately noticed the difference in treatment from you have accreditation/registration? everyone and I’m humbled because I understand the huge “The training company MFPL has a tailored training responsibility that goes with being a McKenzie friend.” accreditation programme which, on average, takes 12 months of workshops to gain the company’s accredita- Do you feel limited by your role and would tion certificate. MFPL’s standard is very high and some you like to see it extended in any way? who apply for training are declined. The accreditation “I love my role however I too, find it stressful because of standard is the company’s personal standard and not the responsibility. We are taught about general physical an NZQA certification. Until recently, Vinay Deobhakta, and mental health issues. This includes for ourselves and who is the founder, was the main trainer but other not taking on too much work. I do not do it to make accredited McKenzie friends like me are slowly doing money. I don’t think any of our accredited McKenzie more training, imparting our knowledge to the trainees friends do. We are there to continue helping our com- coming through. munities, but professionally. “The training has been fantastic. It gives a really good “I personally don’t feel limited in the role. We are insight into the justice system, the courts and how they taught to be effective support people for self-litigants work. We also get a heavy dose of litigation skills training and not take over the role of advocating. However, we are and on procedures in court. This gives us confidence taught litigation skills and there is an advocacy module in court. The self-represented litigants we are helping too. We are taught how a self-litigant can make a proper also get a huge boost because we have the training to application to the judges if they want their McKenzie really help them instead of just merely being emotional friend to speak for some reason, however it must be support for the day.” exceptional circumstances.”

Has there been an increase in requests Do you get feedback from your clients? Are for McKenzie friends? If so why do you they happy with the service you provide? think this has been the case? “My clients are my hapū so I’m constantly getting “Over the last 20 years I personally have witnessed an feedback and I’m glad to say they love the McKenzie increase in requests. I think legal fees are getting too friend services. high but also people prefer to be with someone they “I’d like to stress that we are all taught that not all know like whānau who can support them. Especially so cases are suitable for a McKenzie friend. We do not give for Māori. Most of our Family Court cases aren’t about legal advice. We are not lawyers and we have lawyers legal issues like who should get the matrimonial chattels who we recommend if the cases are such where the where lawyers are needed, but rather domestic violence, client clearly needs legal advice and doesn’t have the custody issues and access where the lawyers are mostly ability to understand the law themselves. In the family confirming instructions from their clients rather than court that is mainly for relationship property matters. I debating legal issues over mostly money.” enjoy keeping my role as a McKenzie friend as strictly this, and I see myself as someone who is helping my What kind of cases are you generally client express his or herself to a court in an organised asked to provide support for? and professional manner, so they are actually listened “Mainly Family Court disputes/issues. Due to my to and their views considered.” ▪

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ACCESS TO JUSTICE “Benchmark” helps vulnerable witnesses achieve justice

BY LYNDA HAGEN

with anything especially stressful pair met with judges and experts A new online resource will help find much of the court procedure in New Zealand and “they gave us judges and lawyers work more confusing. It’s much, much worse carte blanche to produce versions effectively with vulnerable wit- for vulnerable people,” she says. that fit the Aotearoa context,” Emily nesses and defendants, who often Henderson says. face difficulties navigating the legal Guides on each topic The project is hosted by Otago’s system and achieving justice. The online hub, the first in Donald Beasley Institute and Based on a British model, Australasia, includes easy-read led by the institute’s director, Dr Benchmark includes an initial seven “cheat sheets” as well as longer Brigit Mirfin-Veitch. Along with Dr guidelines, including pre-trial case articles on each of the topics covered. Henderson, the team also includes management for vulnerable wit- Aiming to achieve both increased Dr Kirsten Hanna and Professor Kate nesses and working with court-ap- disability awareness and responsive Diesfeld of AUT University. pointed communications assistants. legal practice, the guides explain The Law Foundation has supported There are also specific guides for each disability and cover everything considerable past work on improving dealing with children, older adults, from first interviews to pre-trial vulnerable people’s access to justice, and people with autism spectrum directions and the trial itself, includ- including 2010’s ground-break- disorder, fetal alcohol syndrome, ing how to question appropriately. Dr ing study by Doctors Hanna and intellectual disability, and mental Henderson says there are similarities Henderson on child witnesses, and distress. between them – for example, people more recent work by Dr Mirfin-Veitch The case of Teina Pora, a man on both the autism and fetal alcohol and Professor Diesfeld on witnesses with fetal alcohol syndrome who spectrums need a calm environment. and defendants with intellectual disa- was wrongly convicted of rape Each guide is co-authored by New bility. Emily Henderson also looked at and murder and spent 20 years in Zealand experts and reviewed by use of the UK Toolkits during her Law prison, highlights the importance of local and international academics Foundation International Research interviewing and cross-examination and clinicians. Fellowship. techniques that take account of the “Preparing vulnerable witnesses The new project is designed to particular vulnerabilities of such and defendants for court is so impor- make all this research accessible people. tant. Children get a pre-trial court- to practitioners: “We have tried to The project is jointly funded room orientation visit, but often produce something that is practical, by the Law Foundation and IHC. adult defendants and witnesses that judges and counsel will find Project writer senior solicitor Dr need them too. Some people react valuable,” Dr Henderson says. “It’s Emily Henderson says practitioners badly to certain sounds or lights in all very well for academics to know have strongly supported the project, the CCTV room, for instance, and this stuff – the important thing is recognising that traditional court need them changed,” she says. to get the information out there to procedure isn’t working well for Additional guides will be added in lawyers in a form they can actually vulnerable people. future, for young defendants, adult use.” “There’s now a 30-year-old moun- sexual violence complainants, and Benchmark and its resources can tain of empirical literature saying trial management, among other be accessed at: www.benchmark.org. that what we do in cross-examina- topics. nz ▪ tion is really pretty awful. We now The original UK toolkits were the know that what we thought were brainchild of two British experts, Lynda Hagen  lynda@ useful ways of pinning a deceptive Dame Joyce Plotnikoff and Dr lawfoundation.org.nz is Executive witness to the ground are, in fact, Richard Woolfson, who waived their Director of the New Zealand often immensely coercive. copyright so the Law Foundation Law Foundation  www. “Even ordinary adults not dealing team could launch the project. The lawfoundation.org.nz

74 LAWTALK 923 · November 2018 ACCESS TO JUSTICE

ACCESS TO JUSTICE Barriers to participation What’s in the way of resolving workplace problems?

BY ROBIN ARTHUR

Barriers to pursuing employment claims were under scrutiny at a recent symposium hosted in Auckland by AUT’s Work Research Institute, held with the support of the Employment Relations Authority and the Employment Court. The gathering included academics, lawyers, union and business representatives, government officials, community sector workers, employment mediators, Authority members and Employment Court judges. Chief Employment Court Judge Christina Inglis opened the symposium with remarks reflecting on concepts in the Employment Relations Act 2000 and the intention to support employment relationships by resolving disputes through Employment Mediation Services, the Authority and the Court. However she noted that while this “sounds like nirvana for employees and employers alike” there were questions about whether there was “a pool or pools of people who never get near the door” and, ▴ The Symposium organising committee (from left to right): if so, what discouraged them. Access to justice was the Employment Relations Authority Chief James Crichton, Employment focus of much judicial and academic attention across Court Chief Judge Christina Inglis, Authority member Robin Arthur jurisdictions, including the recent report of the Justice and AUT Professor of Work Erling Rasmussen. Project in Australia. Chief Judge Inglis noted those access concerns were not limited to the poor: which operate on low margins and “What, for example, of people (employees and employ few staff. employers) who are not in poverty but who still Another barrier to participation cannot afford the high fees which inevitably accu- was information. Employment mulate when pursuing or responding to employ- law is complex and some people ment disputes to mediation and beyond? And what simply had no sense of how the of other potential barriers, including the spectre of legal system works. One measure to name publication, information deficits, vulnerabil- improve access would be to expand ity, and other non-financial impediments?” the number of competent represent- Employment mediator Peter Franks provided an his- atives who do not charge fees. Mr torical overview of the dispute resolution provisions Another barrier Franks called for increased funding in employment legislation. People who were margin- to participation to community law centres so this alised in the labour market were probably the same was information. service is available across the coun- as those who did not know about and did not use the Employment law try for employment mediation and employment dispute resolution system, he said. For is complex and for litigation of cases which have a employees, they were low-paid and disproportionately some people reasonable prospect of success. likely to be young people, women, people without formal simply had no Citizens Advice Bureau national qualifications, and Māori or Pasifika. They were more sense of how policy adviser Jayne McKendry likely to work in the hospitality and retail industries. the legal system reported increasing inquiries to For employers, they were likely to be small businesses works. CAB’s 83 locations nationwide from

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people seeking information about general Oonagh Buckley shared their experiences in dealing with workplace issues. addressing barriers to participation. Bureau advisers had identified The employment relationship problems that reached the following reasons why many the stage of mediation were described as the tip of the employees hesitated to question iceberg by AUT Professor of Work Erling Rasmussen. their employer: The scale of those issues was masked by other ‘exit’ • Dependence on the employer options exercised by workers, apparent in the level of for the job, income and, in staff turnover in some sectors or workplaces, and a many cases, support for visa “psychological” exit where people stayed in their job applications; but were not engaged with their work. Available data on • Uncertainty as to their rights; employer experiences suggested more than 20% required • Not knowing how to resolve management action on employment relationship prob- issues; lems each year. However, survey information was lacking • Being ignored when they raised on employee experiences. He called for Statistics New issues; and Zealand and the Ministry of Business, Innovation and • Knowing what to do but not Employment to gather that information so the scale of having the energy or capacity to problems could be accurately assessed and properly stick with the often long process addressed. of resolving a complaint with an A lively discussion of the issues raised by earlier speak- employer. ers began with comments from a panel comprising dis- Migrant workers’ experiences were tinguished academic and politician Professor Margaret described by Olivier Christeller, Wilson, Government Centre for Dispute Resolution from FIRST Union and Mikee director Caroline Holden, Business New Zealand policy Santos of Migrante Aotearoa, a manager Paul Mackay and New Zealand Law Society Filipino workers’ network. They Employment Law Committee convenor Maria Dew. A said exploitation of migrant wide-ranging question and answer session canvassed workers was compounded by nor- ideas for further discussion or change that included: malisation of unlawful practices • Better funding for CABs, community law centres and in some communities, including unions to improving access to advice and advocacy. paying for jobs needed to support • Improving support for small business in complying residency applications. There was with the law and responding to problems. also widespread scepticism about • Encouraging government agencies to survey employee the prospect of success through the experiences to provide better information to address dispute resolution system where workplace issues. employers refused to respond or • Wider use of telephone, internet and other technol- used “phoenixing” of companies to ogies for online resolution of disputes. avoid liabilities when legal action • Adopting a general ‘no costs’ regime in the Authority against them was successful. similar to Australia, Ireland and Britain with legal costs The complexity of problems against unsuccessful claimants only allowed where experienced by some people, which their case was established to have been vexatious or incidentally include employment Available highly unreasonable. issues, was movingly explained in data on • Anonymising party names in Authority determina- an anonymised case study described employer tions so parties were not discouraged from pursuing by Darryn Aitchison of the Auckland experiences issues due to a fear of publicity or ‘blacklisting’ as a Community Law Centre. He too suggested result of a Google search. called for greater support for law more Symposium papers will soon be publicly available online centres and other community sector than 20% through the Work Institute website: www.workresearch. organisations who could more read- required aut.ac.nz. The symposium organisers hope analysis and ily reach people needing advice or management discussion about barriers to participation can continue advocacy to resolve their issues. action on at a further gathering, open to all interested people, Recorded interviews with employment sometime next year. ▪ Australian Fair Work Commissioner relationship Tim Lee and Ireland’s Workplace problems Robin Arthur  [email protected] is a member Relations Commission director each year. of the Employment Relations Authority.

76 LAWTALK 923 · November 2018 ACCESS TO JUSTICE

ACCESS TO JUSTICE Legal aid: the problems and issues

The current legal aid climate is burgeoning costs of practice has The Ministry of Justice has been carrying out a also seeing an increase in clients contributed to the decreased pool triennial review of the legal aid policy settings. The with more complex personal, of legal aid providers (particularly ministry has said it is a targeted regulatory review with behavioural and societal issues senior and experienced providers) narrow legislative changes and a wider access to justice that inherently require more time and is making it uneconomic for component. and attention. In addition, concern many firms to undertake this kind The review included a series of forums between has been expressed about the long- of work. Significantly, civil legal aid the ministry and legal aid practitioners in August in term viability of the private legal aid has not seen an increase in remu- Auckland, Christchurch, Hamilton and Wellington and bar, with many providers unable to neration in over 10 years. The Law release of a number of issues papers. Justice Minister afford to continue taking on juniors, Society believes that legal aid should Andrew Little has said he will make decisions related leading to likely shortages of legal provide fair remuneration for those to the review in early 2019. aid lawyers in the long-term (signs who do the work.” The New Zealand Law Society has released its com- of which are already apparent in Providers have expressed their ments on the issues paper. These were prepared with the criminal, family and civil areas). frustration that they often end up input from the Legal Services Committee and the Family There has been a notable drop doing a significant amount of work Law Section and provide a good summary of the Law in the number of lawyers, and on a legal aid file that is not remu- Society’s views on some of the key problem areas in particularly senior lawyers, willing nerated. At present many lawyers New Zealand’s legal aid system. to continue doing legal aid work, consider that clients expect them with resulting shortages of criminal, to have a number of attendances Access to justice family and civil legal aid lawyers in and actions on files for which there The Law Society is concerned that reforms to legal aid many parts of the country, includ- is not sufficient legal aid funding. introduced by the Legal Services Act 2011 have dimin- ing in the duty lawyer space. There Furthermore, counsels' professional ished New Zealanders’ access to justice over time. It is are further significant shortages obligations require them to do the now seeing an increase in the inequality of arms between in the refugee and protection and work even if they are not remuner- legally-aided and privately-funded litigants and between ACC areas which we believe may ated for the additional attendances. legally-aided litigants and the state. be contributing to an increase in Those expectations are further com- The Law Society says it encourages and supports a self-represented litigants. pounded by increasingly complex legal aid system that creates access to justice for New Information released by the requirements introduced by legis- Zealanders, particularly some of the most vulnerable Ministry of Justice on gross legal lation, for example sentencing and members of society. Research by the Otago Legal Issues aid payments for the year to 30 bail legislation, the courts’ practice Centre has found the three key reasons for the barriers June 2017 (the 2018 information was requirements, and increasingly to accessing civil legal aid are the grant of legal aid still unavailable) shows there were difficult and vulnerable clients who assistance as a loan with the imposition of a user charge, 1,193 providers who received pay- require extra attention and care. problems in finding a lawyer who will take a case, and ments – down 20% on the number The Law Society says that if remu- finding a local and/or specialist legal aid lawyer. The of providers receiving payments in neration rates are not increased to a number of registered civil legal aid lawyers decreased the year to 30 June 2011. Just over reasonable level, information should by 54% between 2011 and 2016. one-third – 34.5% – of providers be provided to legal aid applicants received gross payments of less than (at the time they make an applica- Viability of legal aid work $50,000 in the 2016/17 year. tion) by way of brochure, or other The Law Society and legal aid providers have expressed appropriate format, of the limits of concern about the economic viability of legal aid work, Increase in provider any grant to the client (within the based on the current level of legal aid fees. Lawyers have remuneration overdue grant schedule). This will help to expressed considerable frustration over the low level The Law Society says an increase in ensure that the client has a realistic of fees, the administrative burdens and the difficulty legal aid remuneration for providers expectation of what can be expected of running a competent, professional and financially is well overdue. of their legal aid lawyer. viable legal practice in this context. “The failure to keep pace with the In the Law Society’s view,

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increasing legal aid rates is a vital workload but also on an emotional work as opposed to being approved) component of helping to ensure level. This is particularly apparent in may be due to the requirement delivery of high quality legal aid the context of sexual violence cases to establish financial or merits services. It says underfunding of legal which have a significant emotional eligibility, the effect of fixed fees aid providers also creates flow-on toll on the lawyers involved. in some cases, and the low hourly effects for others, including duty However, outside of the Public rates involved. Further, in the ACC lawyers and community law centres. Defence Service, the current legal area there are very few legal aid Duty lawyers have expressed their aid system does not assist with providers operating which presents concern that on many occasions, providing opportunities to junior a significant barrier to access to people are coming to court desperate lawyers in the private bar. There is justice nationwide. for legal aid advice (for example in also no financial incentive for senior Legal aid providers consider the the family jurisdiction) and have not lawyers to train and mentor a junior. increase in administrative tasks been able to receive any assistance. associated with the legal aid pro- Other issues are around section Provider shortage cess, is contributing to the decrease 27 cultural reports, with more of Tied to the issue of junior coun- in legal aid providers undertaking these being presented to the court sel, is the increasing shortage of this type of work, in part due to but without any specific legal providers across all jurisdictions. the greater bureaucracy in the aid disbursement policy to fund This is more apparent in provincial process. The Law Society has been them. The reports are costly for regions throughout New Zealand told on numerous occasions that the legal aid providers and should be where often a legal aid provider administrative processes providers state-funded. cannot act due to a conflict of must adhere to have affected the The Law Society says many legal interest (i.e. they may be acting working relationship with Legal Aid aid providers consider the current for the other party) and other legal Services and adds time and money disbursement payments to be insuf- aid providers are unable to take to an otherwise underfunded area ficient. They do not include the time the matter on due to their own of work. spent on administrative tasks such workloads. In such instances, it as printing. would be beneficial for Legal Aid Acknowledgement Services to make legal aid provid- of ministry work Junior counsel ers outside of these areas more The Law Society says it would like to The Law Society considers that accessible, by paying for their acknowledge the good support and training and mentoring of junior travel time and costs. The shortage positive indicators from the Ministry lawyers is critical to the long-term of legal aid providers will have a of Justice on legal aid over the last sustainability of the legal aid work- fundamental impact on the long- few months. It understands that force. Many criminal legal aid pro- term sustainability of the legal aid the ministry is working on making viders have expressed the benefits system. As there is an aging pool operational changes in some of the of having junior lawyers involved of legal aid lawyers and currently areas of concern. The Legal Services in trial preparation and advocacy. no incentive for senior counsel to Committee welcomes any positive Not only do junior lawyers gain continue undertaking legal aid or negative feedback or information invaluable training and mentor- work, changes are necessary. from lawyers involved in legal aid. ing, it also eases the burden on the The decrease in civil legal aid Please email Amanda Frank amanda. senior lawyer both in terms of their providers (actually undertaking the [email protected] ▪

78 LAWTALK 923 · November 2018 LEGAL INFORMATION

LEGAL INFORMATION Pleadings Without Tears – A Guide to Legal Drafting Under the Civil Procedure Rules By William Rose (revised and updated by Roger Eastman), 9th edition, Oxford University Press, 2017

REVIEWED BY GARRY WILLIAMS

pleadings right and doing so in a It is a matter of some regret to me that Mylward way that puts the client’s case in the v Weldon (1596) appears to have been forgotten. best possible light having regard to In Mylward’s case, the plaintiff had his son, Richard the circumstances. (instead of counsel), draw up the Replication (which, as The book is written in an I’m sure you all know, was what a Reply used to be called). approachable and entertaining This pleading ended up being rather longer than was style and is inexpensive. I bought a usual. As the judgment recounts it occupied “six score Kindle electronic copy from Amazon sheets of paper, and yet all the matter thereof which for US$31.57. The paperback version [was] pertinent might have been well contrived in was the same price. sixteen sheets of paper”. It outlines the core skills required The courts of the time being slightly more robust than and fundamental rules to be fol- they are today, Richard was committed to Fleet Prison lowed to produce successful plead- and it was ordered that the warden should then take ings and other litigation documents. him to Westminster Hall “and then and there cut a hole While it would be fair to say that it in the myddest of the same engrossed Replication (which is primarily intended for those who is delivered unto him for that purpose), and put the said are new to litigation, it nevertheless Richard’s head through the same hole, and so let the will be of appeal to a wider legal same Replication hang about his shoulders with the audience. This is because it contains written side outward; and then, the same so hanging, practical insights and tips that will shall lead the same Richard bare headed and bare faced, be of benefit to not just the “newly round about Westminster Hall, whilst the Courts are minted” among us. sitting, and shall shew him at the bar of every of the “It is far from It is probably important to point three Courts within the Hall, and shall then take him being another out that Pleadings Without Tears is back again to the Fleet, and keep him prisoner until precedent book. not a litigation precedent ency- he shall have paid 10l. to Her Majesty for a fine, and 20 It enables the clopaedia or reference book like nobles to the defendant, for his costs in respect of the reader to grasp Atkin’s Court Forms or Bullen & Leake: aforesaid abuse …”. the underlying Precedents of Pleadings. Rather, as the While getting a pleading wrong these days is unlikely principles of Foreword says: to result in quite the same outcome, particularly given s 9 drafting. It “It is far from being another of the New Zealand Bill of Rights Act 1990 (the right not also discusses precedent book. It enables the to be subjected to cruel, degrading, or disproportionately tactics on how reader to grasp the underlying severe treatment or punishment) and due to the fact that best to express principles of drafting. It also the courts appear to have a more permissive approach a point to gain discusses tactics on how best to litigants in person than they once did, getting the the maximum to express a point to gain the pleadings right has many advantages. benefit for the maximum benefit for the client. William Rose’s Pleadings Without Tears is about getting client". Anyone reading this book will

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gain a real insight into how lawyers present their clients’ cases, and how they do this in ways that will be attractive to the court.” The book is divided into 13 chapters. Chapter 1: Pillars of Understanding (General Principles) starts with some preliminary advice about how to approach the task of drafting a pleading. In essence, Mr Rose accepts straight off the bat that there is no one “right” way to draft a statement of claim or defence, but counsels that it is usually possible to draft one in such a manner as will max- imise its strength. However, in order to do that he stresses two points. First, he says “it is imperative that you get as full instructions as you can before starting”. It is, after all, much better to get it right the first time and not have to amend. Second, he counsels using lan- guage with precision, arguing that precise and elegant drafting carries • Chapter 11: Just a Minute (Minutes and Agreed Orders). with it the air of authority and that • Chapter 12: Bones of Contention (The Skeleton Argument). that can have a useful effect on the • Chapter 13: A Matter of Opinions (Opinion Writing). way in which an opponent and the Each chapter provides a wealth of practical examples and court views a case. contains the necessary detailed analysis and explanation The remaining chapters deal with to enable the reader to easily acquire a thorough under- the following topics in turn: standing of how to draft each of the documents discussed. • Chapter 2: Getting the Show on the The importance of pleadings should not be overlooked Road (The Claim). and Pleadings Without Tears does not do so. The work • Chapter 3: Making a Fight of it (The accurately describes the functions of pleadings and high- Defence and Counterclaim). lights, in particular, that a well-drawn pleading should • Chapter 4: The Right to Reply (The enable the parties to accurately identify the issues in Reply). dispute and evidence that will need to be called. Nor • Chapter 5: Don’t Answer Back does it overlook the fact that the drawing of a really good (Rejoinder, etc). pleading in a complex case requires a mastery both of • Chapter 6: Pray – Tell Me (The the relevant facts and the applicable law. Request for Further Information) First, he says “it While mastery of the art of pleading only comes • Chapter 7: ‘Just to Let You Know …’ is imperative that with experience, Mr Rose’s Pleading Without Tears is the (The Answer to a Request for Further you get as full primer a novice needs to get the hang of this aspect of Information). instructions as court-craft. • Chapter 8: Come and Join In you can before I am confident that its readers will benefit from its (Additional Claims Against Third starting”... Second, coverage of the principles upon which good pleading Parties). he counsels using is based. • Chapter 9: Pieces of Eight (The Part 8 language with If only Richard Mylward had a copy back in 1596. ▪ Procedure). This is what we would precision, arguing call Originating Applications. that precise and Garry Williams  [email protected] • Chapter 10: ‘To Tell You the Truth …’ elegant drafting is a barrister practising from Richmond Chambers (Witness Statements, and the Odd carries with it the in Auckland. He is a member of the New Zealand Affidavit). air of authority Bar Association’s Training and Diversity Committees.

80 LAWTALK 923 · November 2018 CLASSIFIEDS · WILL NOTICES

Erskine, Doris Gwen Kumar, Mahendra Will Would any lawyer holding a will for the above-named, Would any lawyer holding a will for the above- late of Wellington, Widow, who died at Wellington named, late of 47a Ferndale Road, Mt Wellington, on 24 August 2018, please contact John Langford, Auckland, who died between 4 September 2018 and Langford Law: 11 September 2018, aged 57 years, please contact Notices  Kirsty Hourigan, Registered Legal Executive, Ross [email protected]  04 472 4286 Holmes PAGE 81  PO Box 344, Wellington 6140 Lawyers:  [email protected] Akaruru, Maeva  Harper, Betty 09 415 0099 or fax 09 415 0098 Dummer, Jordan Jared  PO Box 33 009 Takapuna, Auckland Edwards, Sybil Irene Zoe Would any lawyer holding a will for the above-named, late of 1 Augustine Drive, Aidenfield Drive, Aidenfield, Erskine, Doris Gwen Christchurch, who died at Christchurch on 29 July , Barbara June (nee Mackander Harper, Betty Lodum 2018, please contact Graham Jordan, Solicitor, and Reid) Heta, Ann Waenganui Lowndes Jordan: Would any lawyer holding a will for the above-named, Hood, Graham Wallace  [email protected] address unknown, born on date unknown, who died  09 309 2500 Johns, Lennie Henare on 28th August 2004 in New Zealand, please contact  PO Box 5966, Auckland 1141 Jorgensen, Albert Fraser Samara Mulcahy Public Trustee: Kulak, Krzysztof Jan  [email protected] Heta, Ann Waenganui Kumar, Mahendra  +61 3 6235 5239 Would any lawyer holding a will for the above-named,  Lodum, Barbara June (nee GPO Box 1565 Hobart Tasmania 7001 Australia Mackander and Reid) late of Cambridge, born on 2 September 1949, who died on 5 November 2013, please contact Rebecca Lopez, Jolene Whittall at Cooney Law, Solicitors: Lopez, Jolene Martin, Joseph Rohan  [email protected] Would any lawyer holding a will for the above-named,  Neeson, Lawrence James 07 823 1555 or fax 07 823 2442 late of 39 Platinum Rise, Ranui born on 17 March 1996,  Nielsen, Erik Schmidt PO Box 369, Cambridge 3450 who died on or about 11 September 2018, aged 22 PAGE 82 years, please contact William Spence, Davenports Hood, Graham Wallace West Lawyers: Riley, Jeremy Francis Would any lawyer holding a will for the above-  [email protected] Schmitt, Gary Roger named, late of 5/49 St Stephens Avenue, Parnell,  09 836 4099 Smiler, Neil Lamar Gillen Ihimaera Auckland, Retired, born on 9 October 1929, who died  PO Box 104040 Lincoln North 0654 Somervail, Edward Robert between 8 and 11 September 2018, please contact Sam Laubscher, Lamb Bain Laubscher Lawyers: Te Wao, Tortorrere Lucy Ella  [email protected] Martin, Joseph Rohan  07 878 1011 Would any lawyer holding a will for the above-named, Akaruru, Maeva  PO Box 412, Te Kuiti 3941 late of 37 Cook Street Foxton Would any lawyer holding a will for the above-named, Retired, born 17 June 1946 who died I September, late of 9 Roosevelt Avenue, Onehunga, Auckland, Johns, Lennie Henare please contact Rob Merlo, Merlo Burgess & Co born on 22 March 1973 , who died on 16 August 2018 in Limited: Would any lawyer holding a will for the above-named, Auckland, please contact Tina Wilson, Wilson McKay  late of 7A Te Mako Mako Lane, Hatepe, Taupo, born [email protected] Barristers & Solicitors:  5 October 1960, who died on 8 August 2018, please 09 373 2453 or 027 2828 599   [email protected] contact Natalie Whitelock, McCaw Lewis: PO Box 51486 Pakuranga 2140  09 523 0766  [email protected]  PO Box 28347, Remuera, Auckland or DX CP33019  07 838 2079 Neeson, Lawrence James  PO Box 9348, Hamilton 3240 or DX GP20020 Dummer, Jordan Jared Would any lawyer holding a will for the above-named, Would any lawyer holding a will for the above-named, Jorgensen, Albert Fraser late of New Windsor. Auckland, Retired, who died on late of Wellington, Mechanic, who died at Wellington 16 August 2018, please contact Siobhan O’Sullivan, Would any lawyer holding a will for the above-named, on 29 August 2018, please contact John Langford, Kemps Weir Lawyers: late of Whangaparaoa, Retired, born 21 August 1931, Langford Law:  [email protected] who died 16 July 2018, please contact Mike Walker,   09 525 4593 [email protected] Public Trust:  04 472 4286  PO Box 62566, Greenlane, Auckland 1546  [email protected]  PO Box 344, Wellington 6140  09 904 4089  Edwards, Sybil Irene Zoe PO Box 288, Orewa 0964 Nielsen, Erik Schmidt Would any lawyer holding a will for the above-named, Would any lawyer holding a will for the above-named, late of Dannevirke, Retired, born on 19 September Kulak, Krzysztof Jan late of Hamilton, Retired, born on 14 July 1943, who 1935 who died on 4 September 2018, please contact Would any lawyer holding a will for the above-named, died on 16 September 2018, please contact Leah Nicholas Tait, Innes Dean Tararua Law: late of Auckland, who died 27 August 2018, please Caddigan, O’Sheas, Barristers & Solicitors:  [email protected] contact Andrew Lemalu, Andrew Lemalu Law:  [email protected]  06 952 3262  [email protected]  07 838 3109  PO Box 43, Palmerston North 4440 or DX  09 579 0045 or fax 09 579 0049  PO Box 460, Waikato Mail Centre, Hamilton PP82510  PO Box 11-321, Ellerslie, Auckland 1542 3240 or DX GX10052

81 LEGAL JOBS · CLASSIFIEDS November 2018 · LAWTALK 923

WILL NOTICES CONTINUED Are you: Vacancy: • an excellent communicator and dispute resolver Riley, Jeremy Francis Resolution • great with people from all walks of life, even when they are having a challenging time Would any lawyer holding a will for the above-named, Adviser late of Redcliffe, Queensland, Australia, IT Specialist, • motivated to make a real difference who was born in Kawakawa, New Zealand, who died • proactive & organised on 21 June 2018, age 35, please contact Letizea Ord, • after a better work-life balance Ord Legal: ?  [email protected] We provide free & independent advice to resolve  PO Box 10909, Wellington 6143 problems between banks and their customers. Join our high-performing & passionate team in our stunning Wellington waterfront office. Schmitt, Gary Roger Banking Would any lawyer holding a will for the above-named, Ombudsman bankomb.org.nz/vacancies late of 54 Banks Road, Mt Wellington, who died on Scheme 19 September 2018, please contact Hannah Bennett, Skeates Law:  [email protected] WORD PROCESSING  09 369 5230 or fax 09 369 5231  PO Box 56-179, Dominion Road, Auckland I offer a personal, professional and prompt Smiler, Neil Lamar Gillen Ihimaera outsourced word-processing service, using digital Would any lawyer holding a will for the above- dictation. named, late of Wellington, Public Servant, born on 18 February 1963, who died on 7 September 2018, Urgent work is given priority, but all work is please contact Tyson Hullena, Kahui Legal: checked for spelling and grammar, and returned  [email protected] by email in a timely manner ready for printing on  04 495 9980  PO Box 1654, Wellington 6140 your own letterhead. Phone me, Andrea, on: 027 324 7482, Somervail, Edward Robert or e-mail: [email protected] Would any lawyer holding a will for the above-named, late of Wakefield, Mill Hand, who died on 18 June 2018, please contact Hilary Palmer, Rout Milner Fitchett:  [email protected]  03 548 0064 EMPLOYMENT  Marble Arch Arcade, 167 Hardy Street, Nelson, PO Box 580, Nelson 7040 LAWYER

Te Wao, Tortorrere Lucy Ella Saunders Robinson Brown is a prominent Canterbury law firm Would any lawyer holding a will for the above-named, consistently providing valued advice and making a real difference late of 158 Maori Point Road, Whatawhata Hamilton, for our clients for the last 20 years. Housewife, born on 26 August 1953, who died on We are looking for an experienced Employment Lawyer who is a 16 September 2018, please contact David Mayall, Senior Associate and looking for the next step in their career to Niemand Peebles Hoult: ultimately build up and lead a successful employment law practice.  [email protected] We work with a broad range of clients including individuals, small  07 959 1818 and medium sized businesses, and companies. We need another  PO Box 1028 Hamilton, 3204 lawyer to join our thriving Litigation Team to assist our clients and growth of the firm. There is also the opportunity for civil litigation work. You will be a qualified lawyer who will be primarily involved with employment law and health and safety matters to build, promote and develop the SRB employment practice and to grow the team. You will also provide support in civil litigation. You need to be Advertise with us! practical, coupled with strong analytical skills and you need to have the ability to quickly establish credibility and build excellent LAWTALK OUR WEBSITES LAWPOINTS working relationships with clients. In return, we provide a supportive environment and a great opportunity for career progression. Our culture is one which is Contact our Advertising Co-ordinator: inclusive, respectful and encourages teamwork and collaboration. If you are interested in this position, please send your application to [email protected]. 04 463 2905 A full position description is available on our website [email protected] www.srblaw.co.nz

82 LAWTALK 923 · November 2018 CLASSIFIEDS · LEGAL JOBS

WHITMARSH LAW General Practice Lawyer

We are seeking an outstanding lawyer with strong general practice and especially property law skills to join our centrally located Lower Hutt firm. Our client base is wide and varied with a largely younger demographic, including many first home FortyEight Shortland Barristers is a leading civil and buyers and many clients that have never required the services of a lawyer before. The work in this role will be varied in nature commercial set located in Auckland’s Vero Centre. but with a particular emphasis on property law, dealing with a In addition to traditional advocacy services, we offer wide range of conveyancing transactions, including residential arbitration, mediation, negotiation and technical and commercial. The firm also provides advice with regard to specialist advice. Our members have a wealth of the preparation of Wills and Enduring Powers of Attorney, Estate expertise and experience across civil, commercial, Administration, setting up Family Trusts, the implications of the Property (Relationship) Act, and other aspects of a general legal regulatory law and equity. practice. If you are looking to further your career there is a great We seek expressions of interest from suitable opportunity of advancement for the right candidate. candidates who wish to join our chambers. All contact Benefits and perks will be in the strictest confidence. Further information about FortyEight Shortland is available on request. • Competitive salary commensurate with experience • Car park In the first instance, please write to Kayla Hamiora, • Casual Fridays Chambers Manager, at the address below or contact a member of FortyEight Shortland direct. Skills and experience • A minimum of one years’ post-admission experience; • Strong general practice and property law skills; CONTACT: BARRISTERS: • Trust and Relationship Property Law experience would be T: +64 9 601 9600 Kellie Arthur an advantage; E: [email protected] Mark Colthart • Self-managing, and comfortable engaging in a client facing www fortyeightshortland.co.nz Bret Gustafson role; and Greg Jones • Outstanding work ethic and attitude. ADDRESS: Steve Keall Level 34, Vero Centre Rob Latton 48 Shortland St Tim Rainey Email [email protected] to apply Auckland 1010 Carole Smith

LITIGATION LAWYER Intellectual property 7–10 years’ experience Auckland

AJ Park is an internationally recognised, top tier specialist intellectual property (IP) law firm, whose people regularly receive global accolades for their work. With offices in Auckland and Wellington, we have one of the largest, most experienced teams of IP experts in the region. For the last five years, AJ Park has been named ‘New Zealand’s IP Specialist Law Firm of the Year’ at the New Zealand Law Awards and we consistently rank among the top IP firms in Australasia.

THE ROLE We are offering a unique opportunity to take a senior role in our litigation and dispute resolution team. We are looking for a talented lawyer with 7–10 years of diverse IP litigation experience. In this role, you will handle disputes involving all kinds of IP including patents, trade marks, copyright, registered designs, and plant variety rights. You will have good knowledge of court and tribunal practice and procedure, and be able to work largely independently. You will have proven people skills, and be able to supervise junior staff and work with other teams within the firm. As a litigation team member you will also be part of AJ Park’s thriving regulatory practice. Ideally you will have experience advising on product labelling, standards compliance, and advertising standards matters. There is also scope to work in the IP commercial practice area, assisting and supporting our commercial team on a wide range of commercial matters including IP licensing.

OUR OFFER AJ Park is well-known as a firm that looks after its employees. There will be ample opportunity and mentoring to build your career within a small and supportive team. Our team has a reputation for handling contentious matters involving all sorts of IP including many high- profile cases where decisions have set important precedents for IP law locally and around the world. As a team, we are committed to understanding each client’s story and their drivers, and provide them with expert targeted and commercial advice. If you enjoy working in a supportive firm that places a strong emphasis on work/life balance, career development and growth, then this may be the opportunity for you.

If you are interested in joining an award-winning firm of IP specialists, please send your CV, covering letter and academic transcript to Sue Quinnell, Chief Human Resources Officer, at [email protected].

83 CPD Calendar

PROGRAMME PRESENTERS CONTENT WHERE WHEN CIVIL LITIGATION

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

INTRODUCTION TO CIVIL Nikki Pender This workshop is an excellent opportunity for recently Christchurch 26-27 Nov LITIGATION SKILLS Paul Radich QC admitted practitioners to develop practical skills in civil Pru Steven QC litigation in an intense small-group workshop. You will learn 9 CPD hours James Wilding how to handle a single file 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 files, competently and confidently.

FAMILY

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

GENERAL

CPD TOP-UP DAY Chairs: Designed for the busy general practitioner to “top-up” your Christchurch 12 Feb John Mackintosh year’s CPD. A one-day programme offering 7 hours face-to- Wellington A 13 Feb 7+3 CPD hours Dan Parker face CPD together with a bonus 3 hour Online CPD, for you Jane Meares to complete when and where it suits. Whatever your level of Wellington B 13 Feb Matthew Tetley-Jones experience, the programme will provide practical advice on Auckland 14 Feb hot topics across a range of practice areas, with a regional Live Webstream 13 Feb focus and presented by an impressive line-up of speakers.

DOMAIN NAME Brent Carey The Domain Name Commission regulates the .nz domain Webinar 21 Nov COMMISSION - ADVISING Dylan Connelly name space with the aim of assisting people, businesses and CLIENTS communities to have a trusted and distinctively New Zealand online presence. This webinar will take a practical approach 1.5 CPD hours aimed at ensuring you are able to provide your clients with robust advice in respect of domain name policy issues, complaints, and the disputeresolution process if this proves necessary.

PRACTICE & PROFESSIONAL SKILLS

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

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

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

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

PROGRAMME PRESENTERS CONTENT WHERE WHEN PROGRAMME PRESENTERS CONTENT WHERE WHEN CIVIL LITIGATION PROPERTY

EVIDENCE AND TRIAL Chris Patterson This practical workshop covers the core skills of evidence, Christchurch 17 Nov SUBDIVISIONS Chair: Property subdivisions can entail a myriad of issues that need Wellington 13 Nov Thomas Gibbons to be worked through and can prove to be a risky, exciting PREPARATION proof and factual analysis (EPF), as well as approaches to Dunedin 24 Nov Auckland 14 Nov investigations, the development of case theory and how to 6.5 CPD hours and potentially profitable venture for your clients. This intensive will take a practical approach in examining the key Live Webstream 13 Nov 3 CPD hours manage the paperwork associated with any case. A must for all litigators. issues and developments in this area. Subdivisions sit at the Please note: the workshop takes place on a Saturday interface of resource management and property law and this morning and is limited to 25 participants – register soon! intensive brings these strands together.

IN SHORT INTRODUCTION TO CIVIL Nikki Pender This workshop is an excellent opportunity for recently Christchurch 26-27 Nov LITIGATION SKILLS Paul Radich QC admitted practitioners to develop practical skills in civil GIFT OR LOAN? Ben Snedden It is becoming increasingly difficult to save for a deposit on Auckland 22 Nov Pru Steven QC litigation in an intense small-group workshop. You will learn Jeremy Sutton a house, and luckily for some, generous parents are able to Live Webstream 22 Nov James Wilding how to handle a single file from beginning to end, be able 9 CPD hours 2 CPD hours help out so that their children can get their first step on the to identify and understand the various steps in the process, property ladder. These agreements begin with the best of develop the practical skills you need to handle this and a intentions, however, things can go wrong down the track range of other litigation files, competently and confidently. when the parties have a different understanding of what was agreed to with a key dispute being whether the money was FAMILY a gift or a loan. This seminar will help enable you to work effectively with your clients in ensuring clarity about what is INTRODUCTION TO John Adams This workshop will show you how to run a domestic violence/ Wellington 19-20 Nov being agreed to and in providing robust advice if issues do FAMILY LAW ADVOCACY Usha Patel interim parenting case from go to whoa. Through precedents, Auckland 26-27 Nov emerge. AND PRACTICE videos, a book of materials, and performance critique, this course, recommended by the Legal Services Agency, is sound, SENTENCING Kerryn Beaton Sentencing matters can prove to be extremely complicated Auckland 28 Nov participatory and proven. 13 CPD hours Liz Bulger and by law must take account of a range of considerations, Live Webstream 28 Nov

2 CPD hours some of which may be in conflict, including; the seriousness of the offending, the interests of the victim, consistency GENERAL with sentences imposed for similar offending, and the CPD TOP-UP DAY Chairs: Designed for the busy general practitioner to “top-up” your Christchurch 12 Feb personal circumstances of the offender. This seminar will John Mackintosh year’s CPD. A one-day programme offering 7 hours face-to- take a practical approach in looking at the key issues and the Wellington A 13 Feb implications of recent developments in this area and will help 7+3 CPD hours Dan Parker face CPD together with a bonus 3 hour Online CPD, for you Jane Meares to complete when and where it suits. Whatever your level of Wellington B 13 Feb ensure that you are able to achieve the best possible results Matthew Tetley-Jones experience, the programme will provide practical advice on Auckland 14 Feb for your clients. hot topics across a range of practice areas, with a regional Live Webstream 13 Feb focus and presented by an impressive line-up of speakers.

DOMAIN NAME Brent Carey The Domain Name Commission regulates the .nz domain Webinar 21 Nov COMMISSION - ADVISING Dylan Connelly name space with the aim of assisting people, businesses and CLIENTS communities to have a trusted and distinctively New Zealand online presence. This webinar will take a practical approach 1.5 CPD hours aimed at ensuring you are able to provide your clients with robust advice in respect of domain name policy issues, complaints, and the disputeresolution process if this proves necessary.

PRACTICE & PROFESSIONAL SKILLS

LAWYER AS NEGOTIATOR Jane Chart Negotiation is a vital skill for every lawyer and improved Wellington 14-15 Nov negotiation skills can help avoid unnecessary litigation and 11.5 CPD hours produce better settlements more efficiently. Attend this workshop to gain an understanding of the risks and benefits of various negotiation strategies and techniques. ONLINE CPD - learning on demand READING ACCOUNTS Lloyd Austin A workshop to enable you to unlock the mysteries of Auckland 5-6 Nov AND BALANCE SHEETS financial documents, gain an insight into the world of Hamilton 7-8 Nov accounting and make you more effective and confident NEW MODULES ADDED! Christchurch 12-13 Nov 7.5 CPD hours when advising your clients on financial matters. Wellington 14-15 Nov Property - subdivisions $115 NZLS Mem MEDIATION FOR Virginia Goldblatt This workshop builds on the NZLS CLE workshop Mediation Wellington 16-18 Nov Commercial Leasing Update $149 NZLS Mem LAWYERS PART B – David Patten for Lawyers Part A which provided opportunity to CIVIL/COMMERCIAL, Denise Evans understand the process of mediation and to learn to think EPA Forms - wrap up $149 NZLS Mem FAMILY & EDUCATION like a mediator – not a lawyer. It provides further opportunity DISPUTES to observe a civil mediation, to dissect it and to practise Visit www.lawyerseducation.co.nz for more information mediation skills. 15 CPD hours

To contact us | Visit: www.lawyerseducation.co.nz For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz Email: [email protected] | Phone: CLE information on 0800 333 111. LIFESTYLE November 2018 · LAWTALK 923

LIFESTYLE

1 2 3 4 5 6 7 8

9 10

11 12 13 A New 14 15 16 17 18 19 Zealand 20 21 22 Legal 23 24 25 26 27 Crossword 28 29 30 31 SET BY MĀYĀ

32 33

Across Down 1 Concerning humanist who got 1 See 9 Across heart of population problem? (10) 2/32 Hairy creator to oddly lend C E N T E N N I A L B A L L A A L O N P M A 6/15 Justice McEwan visiting the youth leader bananas (6,4) N A M A N N I V E R S A R Y south-east to travel back (4,5) 3 The manner in which letterhead T E T D I I S S E X P L I C A B L E N E S S 9/1D New emo introduced to "Hi hi revealed Diana Wynne Jones' R L N I S C W hi" caused controversy in 1999 (8,4) wizard (4) B E A T G I R L S E S Q U I 10 Repeatedly, past triumph is 4 The sound of kirschwasser (5) U T Y R U N R H E U M Y W E S T L A N D overturned - please don't be upset (3,3) 5 Wake spy? (5) Y A N D R V S 11/23 Knead pastry with rotary 7 Formal attire leaders dropped for C I R Q U E D E S O L E I L motion for Catherine and Silvia's "Labyrinth" (5,3) G D U V S U R E A B O M I N A T I O N I K E successor (5,5) 8 Press organisation over half of 5 L L S D G C N V 13 May be Minor or Major King in placed under fresh herb (4,6) A P S E T A W N Y E A G L E America (4) 12 Romeo Idol comes above a 14 Dispense unknown insertion to Beatle (5) Solution to October homes maker, say (5) 14 Embroidered staid dream? (10) 2018 crossword 17 KO from Lady I queried (5) 15 See 6 Across Across 19 Put Janet in the picture (5) 16 Propose sound seagoing chest 1. Centennial, 6. Ball, 10. Nam, 21 Instant Henry returned gold to (5) 11. Anniversary, 12. Explicableness, yellowhead (5) 18 What's the difference between 14. Beat Girl, 15. Sesqui, 18. Rheumy, 22 Musician Rex into metal (5) gamma and epsilon? (5) 20. Westland, 23. Cirque De Soleil, 23 See 11 20 See 29 26. Abomination, 27. Ike, 28. Apse, 25 Sound of a dominant twin (4) 24 Fats used in game (6) 29. Tawny Eagle. 26 Firefighter, a bloke named Anne?(5) 26 See 31 Across Down 30 First Maori woman to get 27 German flower puts man in the 1. Canterbury, 2. Nameplate, Auckland University degree, says Ring, almost (5) 3. Elating, 4. Nondairy 5. Anvils, ZZ Top (6) 28 Supporters sometimes get burnt 7. Amass, 8. Lays, 9. Prince, 13. Wind 31/26D Yo! A ginger beer is poured (4) Sleeve, 16. Quavering, 17. Redesign, for Labour's 1999 winner (8,5) 29/20 Pear-shaped kit I left out for 19. Maquis, 21. Trounce, 22. Nevada, 32 See 2 Down suffragist (4,8) 24. Idols, 25. Gala. 33 A home in European river for Glen Campbell's useless builder? (10)

86 LAWTALK 923 · November 2018

LIFESTYLE

Chicago: colourful, contradictory and very much its own

BY JOHN BISHOP

tasty and quite filling, but ultimately Chicago, America’s self-styled unappealing because it had no second city is a special place defined variety. by four factors: the magnificence Authentic doesn’t always mean of its buildings, as the cradle of interesting, particularly when it electric blues, its long history of comes to working class food, where gangsterism and its blood brother the challenge is always to make a ▴ Outside the club owned by political corruption, and its rather little go a long way and to make the legendary guitarist Buddy special food – deep dish pizza and the unappetising as appealing as Guy the Chicago hot dog. possible. (Ketchup, for example was On a quest to get a feel for all originally much stronger because it The New York hot dog is just a those elements I found one common was invented to disguise the taste frankfurter in a bun with some factor: Chicagoans do stuff their of decaying meat). sweet mustard squirted over it. The way. While pizza eaters debate the Chicago dog is a work of art. Take the Chicago pie: now called respective virtues of thick and thin, A white sesame seed bun with a deep dish pizza, but it wasn’t called my tour guide told me that even in Vienna beef sausage and then seven that until the locals tried to win a Chicago thin crust oversells thick additives (some say they must be nationwide pizza competition in the crust by four to one. put on in this order, others are less 1940s (it didn’t work). fanatical). The bun is steamed, and I tried the thick crust pizza at Hot dog … or a the sausage is boiled. Gino’s East, one of Chicago’s oldest work of art? In her A Love Letter to the Chicago- pizza parlours. It is just a simple Another contrast with New York and style hot dog, food writer Julia tomato sauce with melted mozza- evidence of Chicago going its own Kramer says: rella on a dough base containing sweet way is the story of the hot dog. “You want the mustard, relish, oatmeal, which makes it more like What happened was that each and onion to come into close contact a shortcrust with the crust coming of the great ethnic traditions in with the dog, so add those first. Then up the side of the dish to give it a Chicago – the Irish, the Germans/ nestle in the pickle spear on one side pie-like appearance and taste. Poles and the Italians – had their and the tomato wedges on the other. The contrast with the thin crust own style of hot dog. Garnish with sport peppers and hit New York-derived-from-Naples In the 1940s and 50s the search the whole thing with a few dashes style margherita pizza crisped and was on for a food marketing symbol of celery salt. That’s what we refer even slightly burned, with a light for the city. No ethnic community to as ‘dragged through the garden,’ covering of sauce with some cheese was willing to surrender their hot and none dare call this salad.” and basil, is obvious. dog in favour of the other guys. None dare use ketchup either. To In New York pizza is street food, Then someone came up with the ask for it, or add it, is to invite social large triangular slices which are big idea. Rather than divide the disgrace. impossible to eat elegantly. The community by picking one of the I ate at Portillo’s, consistently Chicago pie is a sit down knife and three, let’s unite the community by rated as one of the best hot dog fork experience. amalgamating the three styles. And joints in town. They also sell burgers, I thought the Chicago style was so, the Chicago hot dog was born. sandwiches, pasta, fries, and a host

87 ▴ Chicago's shoreline of Lake its architecture which is best seen business district defined by the ele- Michigan from the 93rd story from the river, and there are cruises vated railway that circles the area. of the John Hancock building, aplenty. Running around both sides Down Michigan Avenue, known Chicago's tallest of the river is one of the city’s most as Miracle Mile, is the John Hancock prized possessions – a walking and Building, Chicago’s tallest (the of other stuff. You can even get a biking track about a metre wide Trump Tower is second), and on beer with your food, and the place which is permanently open to the top floor there is a bar. is always busy. the public even as it passes lavish Ninety-three stories up, drink Certainly, all the additives lift homes built to the water’s edge. in hand and looking down on the the hot dog beyond the ordinary, On the river cruise the commen- helicopters landing on the roofs of particularly as the soggy bun and tary tells of the devasting effect of lesser buildings is interesting. the rather bland sausage add little the Great Chicago Fire of 1871 but to the range of taste sensations. also of the fantastic rebuilding The blues So often in life the combo is better opportunity. From the 1870s onwards Black together than any one item alone. The fire killed up to 300 people Americans started moving up from Another great ethnic tradition and left more than 100,000 resi- the South of the United States seek- that the Italians brought to the dents homeless. Wikipedia says ing better jobs and leaving racial dis- city is the meat sandwich – meat it destroyed more than 117 kms of crimination and prejudice behind. in a thick bread roll – dipped in jus roads, 190 kms of sidewalk, 2,000 They were only partly successful, and then cooked. It comes out still lampposts, 17,500 buildings, and but they brought their music with a bit soggy and sloppy, but that’s $222 million in property – about a them – blues and jazz. the way it is meant to be. I enjoyed third of the city’s valuation (more In the 1940s a fresh wave of one of these at the very traditional than $4 billion in 2016 dollars). migration post World War II brought and rather famous Italian Village The city invited the leading archi- electric blues to the city in the restaurant on Mother’s Day. tects of the day to design buildings person of Muddy Waters, Howlin’ I took mine dry, but you can of distinction and the big corporates Wolf and many others. They lived have it wet or very wet, which is competed to have the most striking on the south side, the poorest area why the aged wooden tables are designs. of the city, but rich in music. covered with butcher’s paper. I left The practice continues, and the That tradition is still alive, and unconvinced that this was a major result is a stunning skyscape, and the club owned by the legendary advance in the culinary arts. the establishment of Chicago as the guitarist Buddy Guy is at the centre city where the modern skyscraper of it. Architecture was invented. Many of these are The blues clubs are attracting an One special feature of Chicago is inside “The Loop”, the central audience which is predominantly

88 ▴ The elegant Chicago Tribune building - a fine example of American confidence white, male, middle class and middle-aged, and with a distinct feel of the tourist about it. Hardly an African- American in sight in the audience. The night I was at Buddy Guy’s listening to a good band playing some kickass blues, a bus load of tourists arrived and were shown to tables. They order their one drink paid for as part of the package, and about an hour later, they stand up and depart as quickly as they came. The position at the Blues Room a few nights earlier was similar (although no tour bus). Middle aged white turning out the vote on election day. ▴ (top) The band at the guys with a smattering of younger couples made up In his book Boss, Royko gives a legendary Buddy Guy's Blues the audience. simple example of how opponents Club In both cases the music was authentic; but the (Republicans and other trouble- experience was more about meeting tourist needs than makers, sometimes from within the ▴ From the John Hancock embracing the vibe of what the blues meant to so many Democratic Party) are kept in line. building looking uptown people in the city. In one election a restaurant owner erected a large sign endorsing the from 1989 to 2011. Political machinations opponent of Mayor Richard Daley. The first Mayor Daley was asked Organised crime has long had a place in Chicago. Political The precinct captain asked him to on one election day whether he had corruption, which is gangsterism made legal, is an even take it down. He refused. any advice for the voters. “Yes”, he bigger problem. The next day he was asked again said. “Vote early and vote often.” Legendary journalist the late Mike Royko docu- and still he refused. The third day Every election the dead voted in mented the ways the “machine” – the name given to the building inspectors came and their thousands, and people who the Democratic Party operation which controlled the city ordered a raft of repairs before the hadn’t voted, often found later that from the 1930s to the present day – worked its magic. restaurant could open again. It cost they had. That’s the Chicago way.▪ Capone and its fellow gangsters were amateurs com- him thousands of dollars. The sign pared to those who run the political machine in the city. came down. John Bishop visited Chicago on The machine had precinct captains and ward heelers, The “Boss”, Mayor Richard Daley his own dime and took several often on the city payroll doing nothing jobs, but whose was elected six times from 1955 until food and architecture tours. See real jobs were to sort out citizens’ problems (which often his death in 1976, and later his son his work at  www.eatdrinktravel. involve passing some cash to the right people) and Richard Jnr was elected six times co.nz

89 TAIL END November 2018 · LAWTALK 923

TAIL END Who tried to blow up Richard Singer?

It was 6:15 on a darkening Auckland evening on 9 July 1937. reports in the nation’s newspapers were helped by Richard Prominent Auckland lawyer Richard Singer – “Dickie” to his Singer’s willingness to talk and speculate on why he had nearly friends – arrived in a taxi outside his house at 122 Grafton been killed, along with his high profile as a criminal defence Road, a little later than usual. The driver got out to go around lawyer, poet and radio commentator. and open his door, but Singer waved him back, paid the fare “It was a deliberate attempt at murder. It could not have and let himself out. been anything else,” he told journalists. “I can conceive of no He walked through his gate alongside a rockery, his right arm person who bears me a grudge and who would wish to do me swinging upwards. There was a loud explosion accompanied an injury. I have not the slightest idea who was responsible by a brilliant sheet of flame from the rockery and jagged pieces for the attempt on my life. I am unable to supply the police of stone and metal sprayed Singer and the area around him. with even the shadow of a clue.” About a metre from the blast, Singer was thrown sideways The bomb contained pieces of blue rock. There was no with multiple injuries. His upraised right hand probably saved trace of a trip wire and police discounted the idea of a time his life. A bundle of documents he was carrying in his left hand bomb. The preferred explanation was that the bomb had was covered in fragments of blue metal. His trousers were been thrown at Singer, although the taxi driver and Singer nearly blown to pieces and his overcoat was riddled with saw no-one. Explosives experts decided that gelignite was fragments. One of the signs on the side of the taxi was blown probably used and it was thought it had been constructed off and a large hole was ripped open in the spouting of the along the principles of a Mills bomb – a fragmentation hand house next door. Singer’s son and housekeeper ran outside to grenade used in World War I. find him staggering towards the front door, covered in blood. A couple of weeks later, Singer received an anonymous letter A doctor was summoned to treat injuries to Singer’s face, which suggested there might be another attempt on his life. the calf of his left leg and the back of his right hand. Singer was “That letter I have treated as a joke,” he told the Auckland put to bed and a large contingent of police arrived. It was dark Star. “I think it is just the letter of a madman. That letter is and the real investigations began the next day when debris a practical joke dispatched by some stupid person who has was found on several neighbouring houses up to 40 yards nothing to do with this business. I have not treated this letter away, including what appeared to be part of a metal canister with any seriousness, nor has my courage gone down at any coated with tar and black sand. The “City Bomb Outrage” as time. I am not afraid.” the Auckland Star tagged it was big news and the detailed After the bombing he spent several weeks in a private

❝ Either Mr Balarezo fails to appreciate the effect that his Notable words have on potential witnesses in this case or he is purposefully trying to intimidate them.❞ Quotes — Papers filed by the US prosecutors of Mexican drug dealer Joaquin “El Chapo” Guzman alleging that Guzman’s lawyer, Eduardo Balarezo, has been putting witnesses at risk by ❝ We need to consider whether it is right to pour money into leaking their personal information. old buildings to keep them running as courthouses when things like new developments in audio visual technology ❝ It is challenging to speak truth to power. I applaud the and the possibility of future online courts raises questions strength and courage of those who have recently spoken about how suitable these buildings will be 20 to 30 years up to expose toxic workplace cultures. I hope those actions from now.❞ spur real change. If not, I encourage you to keep speaking — Dr Jane Adams of Otago University’s Legal Issues Centre, up. If we keep quiet and do nothing, nothing changes.❞ who is looking at the underlying assumptions and ideals — Governor-General Dame Patsy Reddy at the Women of about space and place in our court system. Influence Awards.

90 LAWTALK 923 · November 2018

hospital while his wounds healed. An operation was needed to remove a piece of blue metal from his left thigh. On 26 August “still using a stick and limping noticeably” he made his reappearance in wig and gown in the Supreme Court in an undefended divorce case. Dickie Singer was back. The poetic practitioner Richard Arnold Singer was a larger than life Auckland lawyer in the first half of the 20th century. Specialising in criminal defence and divorces he was a fearless advocate. He was adept at making the most of a poor case, according to Justice David Smith (in Portrait of a Profession). Alongside his prominent legal career he was a poet – self-publishing a book of poems called The Years Go Round in 1928 and being just one of two recipients of a collection of poems from the young R.A.K. Mason in 1923 (Singer advised him Donovan revealed that a few days before he had received an to get a job). Singer also became a well- anonymous letter. “In a rambling, cryptic way, it was a hostile known broadcaster, giving many talks on accumulation of words,” the Auckland Star told its readers. “It subjects such as “The Jew in Literature” said in part: ‘Remember that when you are out in your boat and “Twenty Four Notable Trials”. there are no wharves down the gulf. You may have to swim, Eighty years later the crime remains little man, swim hard. Ask Mr Singer – he knows!’.” unsolved. Three months after the blast, When asked, Singer said that Donovan was a complete in late October, the Government offered stranger to him and he could not comment on the matter. a reward of £500 for information lead- There was a further echo in 1939 when Singer was being sued ing to the conviction of the person or by a self-represented plaintiff in a dispute in the magistrate’s persons responsible for the bombing. court over fees. “Are you the Mr Singer who was bombed?” There the matter rested until April 1938 was the plaintiff’s opening question. Quickly Singer responded: when a launch belonging to Andrew “Were you the man who bombed me?” After an assurance Donovan was extensively damaged by from the plaintiff that he was not, the magistrate directed a fire on Kawau Island after an explosion. new line of cross-examination. ▪

❝ I like what I’m doing. I wouldn’t know what to do if I ❝ So this guy is willing to do whatever?❞ weren’t practising law. There are frustrations to beat all — Secretly recorded comments by New York defence lawyer hell, but I like what I’m doing. It’s satisfying.❞ John Scarpa in a conversation with an intermediary in an — Connecticut attorney Morton Katz, 99, who works as a alleged plot to convince his client’s imprisoned accomplice special public defender after becoming a lawyer in 1951. to lie and take all the blame for a murder. The incentive He has no plans to retire. was a boost to the accomplice’s prison reputation.

❝ And if you want to stay inside those firms, keep pushing ❝ An attack against any lawyer is an attack against the legal for change. You outnumber them, both literally and in the profession itself as it undermines the independence of court of public opinion. Their time is up, not just in the lawyers.❞ legal profession, but across the board. It’s taken far too — Rogelio Largo, president of the Davao City chapter of the Bar long, but you’ll win.❞ of the Philippines, in a statement condemning the shooting — Former lawyer Sacha Judd speaks to young women lawyers of lawyer Jason Perera by motorcycle-riding gunmen. Mr at the Auckland University Law Review Alumni Dinner. Perera, who mostly handles drug cases, survived.

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