ISSUE 928 · May 2019

Finding a match Could more be done to match lawyers with the right pro bono clients?

Tania Sharkey The Arbitration The benefits of Retiring from and the Pacific Amendment Act working flexibly practice Lawyers 2019: Further for mental health Association refinement and wellbeing

Page 22 Page 28 Page 50 Page 81 Our commitment

At MAS, we’re committed to doing what we can to make a positive impact on the health and wellbeing of future generations of New Zealanders, and to a more sustainable country.

It’s why we’ve implemented a socially responsible investing approach across $1.4 billion of superannuation funds and insurance reserves and do not invest in the manufacture and sale of armaments, tobacco, or the exploration, extraction, refining and processing fossil fuels.

Talk to us about our socially responsible Retirement Savings and KiwiSaver plans today by calling 0800 800 627 or visit mas.co.nz Winner at the 2019 Australian Financial Review’s Client Choice Awards.

We are delighted to have won three awards: • Best Australasian Professional Services firm (A$50-200m) • Best Australasian Law & Related Services firm (A$50-200m) • Best Australasian provider to Government & Community.

AUCKLAND WELLINGTON CHRISTCHURCH buddlefindlay.com

STUDY TO BE A LEGAL EXECUTIVE Competition

• Developed in conjunction Matters2019 with the Law Society Competition and Regulation • Part-time & full-time options • Auckland Central Campus Conference Pullman Hotel · Auckland · 25 and 26 July

Register now for your chance to hear from some of the world’s experts on competition and regulation law: Dr David Halpern Behavioural Insights team, UK Howard Shelanski Professor of Law, Georgetown University, and Partner, Davis Polk & Wardell, USA Professor Martin Cave Chair, Ofgem, and Visiting Professor, London School of Economics and Political Science, UK INTAKE John Pecman Senior Business Advisor, Fasken, Antitrust/Competition & Marketing Group, Canada 5 AUG Marina Lao Professor of Law, Seton Hall Law School, USA Roger Witcomb Former Panel Chair, Competition & Markets Authority, and former Chair of the Competition Commission, UK Heads of Agencies from the ACCC, Singapore Competition & Consumer Commission, and Hong Kong Competition Commission

0800 222 833 nzma.ac.nz Register at www.comcom.govt.nz/competition-matters-2019 289

New Zealand Law Society 32 · Competition law issues 6 · From the Law Society beneath the surface with 7 · New Zealand Law mergers ▹ BY JOHN LAND Society in action 34 · An ‘earn-out’ tale revisited ▹ BY JOHN HORNER People in the Law 36 · Better justice for people with 15 · On the move disabilities ▹ BY LYNDA HAGEN 6852 22 · Tania Sharkey ▹ BY TEUILA FUATAI 37 · Update on restraint of 24 · The Innovators: Titus trade clauses in franchising Rahiri ▹ BY ANDREW KING ▹ BY DEIRDRE WATSON 25 · Spreading the TLC 40 · The impact of risk ▹ BY ANGHARAD O'FLYNN and compliance on cross border sales and 27 · Letters to the Editor franchising agreements ▹ BY STEWART GERMANN Update 44 · Property transactions and 28 · The Arbitration Amendment technology ▹ BY THOMAS GIBBONS Act 2019 ▹ BY JOHN WALTON

8881

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

4 Contents

Alternative Dispute Access to Justice Classifieds Resolution 61 · How well does pro bono 83 · Will notices 45 · Cognitive biases: challenging work in New Zealand? 84 · Legal Jobs the way we think ▹ BY PAUL SILLS ▹ BY CRAIG STEPHEN 86 · CPD Calendar 68 · Aotearoa's future courts: 47 · Lawyers Complaints should online courts be our Lifestyle Service future? ▹ BY BRIDGET IRVINE 89 · A New Zealand Legal 70 · The Right Track Crossword ▹ SET BY MĀYĀ Practising Well ▹ BY NICK BUTCHER 52 · The benefits of working 72 · Some criminal justice outcomes 90 · Tail end flexibly for mental health and in 2018 ▹ BY GEOFF ADLAM wellbeing ▹ BY AMY PREBBLE 56 · Manage your energy Practice ▹ BY RAEWYN NG 76 · Survival of the healthiest 58 · Please make terrible art ▹ BY EMILY MORROW, ALLI ▹ BY KATIE COWAN MCARTHUR, AND PAUL STEELE 79 · Lawyers missing opportunity to be thought leaders ▹ BY PETE BURDON 81 · Retiring from practice ▹ BY PETER MCMENAMIN

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

5 NEW ZEALAND LAW SOCIETY May 2019 · LAWTALK 928

From the Law Society

This issue of LawTalk marks the first month since I became President of the New Zealand Law Society, a Ethnicity plays a role in great honour and a great respon- bullying, with prevalence sibility. My first few weeks have levels higher among Māori, been intense, with the handover Pacific and Asian lawyers. ceremony with outgoing President About 25% of Pacific and 33% Kathryn Beck, chairing my first of Asian targets of bullying Board and Council meetings, and perceive this disturbing meetings with Ministers and senior behaviour to be motivated officials. by race and culture. I’ve had the opportunity to speak to, and meet with, law students and many members including giving confined to big law firms. They were at the forefront of and supportive around it as it builds speeches in Auckland, Wellington the news media coverage last year, but the Workplace a strategy and action plan by 30 and Hawke’s Bay, and at the High Environment Survey, done for the Law Society in May November 2019. Court swearing in of Justice Walker. 2018, demonstrated the issues are much more widespread. There are other ways we can I’ve also been preparing for It showed that 18% of lawyers (31% of women and support members. At our May the Culture and Systems Change 5% of men) have been sexually harassed, and 52% have meeting the Law Society Board Symposium on 14 May. This one-day experienced bullying. Sixty percent found their jobs very approved a nine-month trial of a event has been organised by the Law stressful, 44% felt they worked under unrealistic time free and confidential counselling Society’s Culture Change Taskforce. pressures and 29% felt major changes were needed to service available to all lawyers. As a legal community we are still their workplace culture. The programme – with a provider coming to terms with the events The prevalence of both forms of harassment is higher who we will announce soon – aims of 2018. Few of us would have among women, younger lawyers, and to a lesser extent to fill what has been a major gap imagined that on the eve our 150th law firm employees. Sexual harassment and bullying in support and assistance. Other anniversary, our profession would behaviours are more common among lawyers working supporting services and initiatives be contemplating a report on how in criminal law, and bullying is also more common in are also being developed, including to address unacceptable levels of family law. establishment of a national men- sexual harassment, bullying, dis- Ethnicity plays a role in bullying, with prevalence toring programme and a specialist crimination and other inappropriate levels higher among Māori, Pacific and Asian lawyers. Wellbeing Committee, as well as workplace behaviour. About 25% of Pacific and 33% of Asian targets of bullying improvements to the Wellbeing As Dame Sylvia Cartwright wrote in perceive this disturbing behaviour to be motivated by 360 online health assessment tool. her foreword to the Working Group’s race and culture. I went to a wonderful workshop report on these issues: “there remains My early discussion as President with Māori and on culture change this month much work to be done if the legal pro- Pacific lawyers have brought me joy and moments of and will leave you with a quote fession in New Zealand is to regain its deep reflection. The joy has come from seeing the light of from that which summarises my status as a trusted group, one which recognition and relief when I have shared my sometimes belief: “people create culture; and is ethical and devoted to serving the painful personal experiences of being a Samoan immigrant they can break it and recreate it public with integrity and honour”. in a predominantly Pakeha culture and profession. The too”. Culture change will happen Now we are through the eye of reflection has come from the stories shared with me that through many pathways and ini- the storm it may be tempting for bring the statistics to life. It is one thing to see the data, it tiatives, and it will only happen some members to put the events of is far more powerful to hear about people’s experiences. if everybody in our legal commu- 2018 behind them and take a ‘not in I will be taking these stories into the Culture Change nity commits to make change. If my backyard approach’, to culture Taskforce’s symposium, a day which will raise awareness everybody makes small changes, change. of the issues facing our legal community and provide big changes will happen. The most important message information and inspiration on what needs to happen to leave with you in this month’s to change our culture. The Culture Change Taskforce has Tiana Epati column is that this issue is not 20 members. It needs a bigger group that is energised President, New Zealand Law Society

6 LAWTALK 928 · May 2019 NEW ZEALAND LAW SOCIETY

New Zealand Law Society in action Tiana Epati becomes 31st elected Law Society President

Gisborne criminal defence lawyer Tiana Epati took over as President of the New Zealand Law Society on 10 April. At 43 years old, Tiana Epati is one of the youngest Presidents elected. She is also the fourth woman to have been elected since the first President in 1897. She is a partner with Gisborne law firm Rishworth Wall & Mathieson. Ms Epati was admitted as a barrister and solicitor in September 2000 after graduating from Auckland University with a Bachelor of Arts in philosophy and history and a Bachelor of Laws (LLB). Ms Epati is the 31st elected President and replaces Kathryn Beck, who has completed her three- year term. “Kathryn did an incredible job, leading the Law Society through ▴ Tiana Epati (third from right), Presidential Dinner, Te Papa what has been a challenging time - particularly last year which was an effective complaints regime to Other priority areas for Ms Epati largely consumed by disturbing deal with, and deter, unacceptable include progressing the conversa- allegations of inappropriate behaviour,” she says. tion around access to justice. behaviour by some members of Another key priority is the deliv- “I want to see the Law Society the legal community. She drove and ery of an action plan by the Law driving initiatives which support fronted the Law Society’s work in Society’s Culture Change Taskforce changes to our justice system to addressing these issues – sexual in November. ensure people who are affected harassment and bullying. She has “This will be a blueprint for long by legal problems can access legal been a truly inspirational leader,” term culture change within the assistance. she says. legal community. The taskforce is a “Most, if not all, of us became As new President Ms Epati says key player in developing a strategic lawyers to be of service to the 2019 is the year of delivery of several framework and action plan that will community, to do something good workstreams already underway. support the creation and mainte- and to make a positive impact. “We’ll be working on how to nance of healthy, safe, respectful, It’s a privilege to be a lawyer and implement the recommendations and inclusive legal workplaces,” with that comes obligations and of the Working Group led by Dame Ms Epati says. responsibilities. We take an oath to Silvia Cartwright on our regula- Kathryn Beck is the chair of the be admitted into practice and we tory system, to ensure we have Taskforce. need to remember that.”

7 NEW ZEALAND LAW SOCIETY May 2019 · LAWTALK 928

New Zealand Law New Vice-President, Society Appoints New central North Island

Executive Director Herman Visagie has become Law Society Vice-President (central North Island), replacing Tiana Epati. He was The New Zealand Law Society has appointed Helen declared elected at the Council meeting as he was the Morgan-Banda as its new Executive Director. only nominee for the position. He works as General Her appointment followed a recruit- Counsel and Chief of Staff for TSB Bank in New ment process to replace the Law Plymouth. Society’s previous Executive Director, Born in South Africa, his family came to New Zealand Christine Grice, who was appointed when he was nine and he grew up in south Otago. He a Justice of the High Court of New obtained BCom and LLB degrees from the University Zealand in December 2017. Mary of Otago. He worked in Wellington as an analyst for Ollivier was acting Executive Director the Ministry for Economic Development from 2009 to in the time between Justice Grice’s 2012, and was Associate Director – Policy with the New departure and Ms Morgan-Banda’s Zealand Bankers Association from 2012 to 2014. Herman appointment. moved to New Plymouth to work with TSB Bank and Helen Morgan-Banda is an expe- was appointed to his current role in September 2018. He rienced Chief Executive and joins has been involved with the in-house lawyers’ section the Law Society after having led the ILANZ since 2016 and is a member of the Law Society’s Royal New Zealand College of General Taranaki branch Council. Practitioners from 2012 to late 2018. In her role at the College she led a transformation programme to develop its operational New Large Law Firm capabilities. This centred on meeting the needs of its members, delivering high-quality training and profes- representative sional development as well as setting, and assessing against, quality standards for general practice. Sarah Keene has replaced Laura O’Gorman as the rep- In parallel she managed initiatives to enable the resentative of the Large Law Firms on the Law Society College to better influence government policy, to intro- Council. Sarah is a partner with Russell McVeagh in duce mandatory general practice quality assurance, and Auckland. She was admitted in September 1996 and make significant improvements to the systems and became a partner in 2006. She specialises in competition, infrastructure of the College. consumer and regulatory law and litigation and is also The College has responsibility for training general co-chair of the firm’s Diversity Committee. practice registrars and during her time at the College the numbers of trainees, and government funding for training, significantly increased. Stakeholder engagement, and advocacy on behalf CPD declarations of members and general practice, was a major focus of the role. reach 97.8% Earlier in her career Helen held senior roles in both private and public sector organisations. She worked as The fifth year of mandatory Continuing Professional a senior advisor in the Prime Minister’s office and held Development (CPD) ended on 31 March and most mem- corporate affairs roles in New Zealand, Australasian and bers of the legal profession appear to have completed global public and private sector organisations. their development programmes. All lawyers are required Ms Morgan-Banda has been a Director on the boards to make a declaration that they have met their CPD of two health information technology companies and requirements. This year 82.6% had made the declaration was the Director of Communications and Marketing for by 31 March. Lawyers are given a further five working a multinational IT corporate that provided services to days after that to declare compliance. Another 15.2% of major Australasian businesses. lawyers made the declaration within the five working In 2017 she completed the Leading Businesses into the days, meaning a total of 97.8% had declared compli- Future Executive Programme at the London Business ance by the due date. This compared with 96.7% in the School, having previously completed an MBA, with previous year. distinction, from Massey University. All lawyers who have not declared compliance are Her personal interests include spending time with followed up by the Law Society. The objective is to her family, travel, outdoor activities and reading support all lawyers to meet their obligations under widely. the Rules.

8 LAWTALK 928 · May 2019 NEW ZEALAND LAW SOCIETY

Practising Well Everyone has the initiatives announced right to a lawyer

The Law Society has announced three initiatives which Any time that a lawyer is criticised directly or indirectly progress its commitment to ensuring that the New for defending someone is a regrettable attack on the rule Zealand legal community has access to professional of law, the New Zealand Law Society has said. support and assistance. “It is very disappointing to see the re-emergence of Approval has been given for trial of a free and public comments which seem to infer that Green MP confidential counselling service that will be avail- Golriz Ghahraman should regret having defended the able to all lawyers. The service will offer two free Rwandan war criminal Simon Bikindi,” Law Society counselling sessions (with the potential option of President Tiana Epati said in a statement. an additional session). The Law Society is finalising “With two lawyers having been engaged by the person details and more information about the service will accused of the Christchurch mosque killings, it is a good be available shortly. time to point out that the justice system depends upon Establishment of a Wellbeing Committee has been lawyers being available to defend anyone charged with approved. The committee will consider referrals of a crime, no matter how disturbing it is. instances where a practitioner has an ongoing health “It is a fundamental principle of our criminal justice condition or impairment that may be impacting on their system that someone prosecuted for a crime must be ability to practise. More information will be announced proven to have committed that crime. The defence lawyer when this has been finalised. must put the prosecution to proving it to the satisfaction Access to the Wellbeing 360 online health assessment of the court. Their personal view of their client’s guilt tool has been improved. Lawyers are now able to enter a or innocence does not come into it. code (lawsociety2019) and obtain immediate access to the “When someone implies that perhaps a lawyer should tool. Lawyers who complete the Wellbeing 360 assess- not defend someone or should be ashamed, that is really ment will receive a health score out of 100, a confidential questioning the foundation of the system of justice here report on their health status, and tips and suggestions in New Zealand and internationally. to point them in a healthy direction for the future. The “Our law requires lawyers to uphold the rule of law Wellbeing 360 initiative is a partnership between its and to facilitate the administration of justice in New developer Vitality Works and the Law Society. Further Zealand. Lawyers are required in accordance with the details and access can be obtained from the Law Society oath they take to be available to act for anyone who website in the section Practice Resources/Practising Well/ wants their services. Unless there is very good cause, Vitality Works and the Law Society. they may not refuse to be instructed by a particular client. “The Rules of Conduct and Client Care which the Law Law Society Society administers clearly state that the personal attrib- utes of a prospective client and the merits of the matter Council meets upon which a lawyer is consulted are not considered good cause for refusing to act for that client. The Law Society’s Council held its “New Zealand’s criminal lawyers are a dedicated group bi-annual meeting in Wellington on of people who are an essential part of our justice system. 10 April. The Council consists of the Any attack or criticism of their motives is really an attack President, four Vice-Presidents and on our fundamental values.” the independent Board Observer, a representative of each branch, the chair/president of each Law Society section (In-house Lawyers, Family Law and Property Law), the President of the New Zealand Bar Association and a representative of the Large Firm Corporation. Representatives of Te Hunga Rōia Māori o Aotearoa and the New Zealand Institute of Legal Executives attended as observers and the President and CEO of the Law Council of Australia were pres- ent as special guests.

9 May 2019 · LAWTALK 928

Law Society submits on Use of DNA in criminal Arms Amendment bill investigations changes needed Swift action to remedy the imme- public input and debate means diate obvious defects in the Arms key stakeholders are unable to The Law Society agrees with the Act 1983 after the Christchurch provide legitimate perspectives Law Commission that a new Act mosque attacks by the introduction and information and evidence that is needed to replace the Criminal of the Arms (Prohibited Firearms, may be highly relevant to the bill. Invesigations (Bodily Samples) Act Magazines and Parts) Amendment And, inadvertent drafting errors 1995. Bill was appropriate, New Zealand and unintended consequences may In a submission on the Law Society President Tiana Epati result from rushed drafting.” Commission’s Issues Paper, The said. Ms Epati told the committee that Use of DNA in Criminal Investigations, However, the Law Society con- the Law Society agreed with the the Law Society says it agrees with sidered that this could have been Minister of Justice that the Arms the Commission that the use of achieved while still allowing a more Act 1983 was clearly not fit for pur- DNA in criminal investigations has realistic – but still short – period pose and was in need of wholesale outstripped the statutory scheme, for public input, Ms Epati told the revision. with the result that the current Finance and Expenditure select “The government has indicated system does not provide consistent committee. that a second tranche of substan- or thorough safeguards. The Law Society was one of a tive amendments in the form of a “Practices in this area are there- number of submitters to the com- second amendment bill will follow fore currently driven by law enforce- mittee in Wellington on the day set later this year. It is imperative that ment objectives and opportunities aside for hearing submissions. Ms the development and scrutiny of the rather than public, broadly informed Epati began by paying tribute to second bill is done in a systematic and balanced debate.” the outstanding work of the New way with adequate time for public It says the Law Commission has Zealand Police in their response to input.” an appropriate goal of legislation the tragic events. The Crown Law Office had advised with a clear purpose that has been “We appreciate the need for the Attorney-General that the bill robustly tested, is certain and flexi- a swift legislative response but appeared to be consistent with the ble for the future and appropriately believe that this could have been New Zealand Bill of Rights Act 1990. comprehensive and effective for achieved while still allowing an ade- However, Ms Epati said, that advice that purpose within the context of quate period – such as five working did not address the extension of the the wider criminal justice system. days – for public input,” she said. reverse onus of proof in section 66 However, this has potentially con- “That would have allowed for to the three new offences of unlaw- flicting elements, some of which better public understanding and ful possession. tend towards a prescriptive and buy-in, as well as better quality – “This may be an oversight, since exclusive regulatory regime while and more enduring – legislation.” the Departmental Disclosure others tend against prescription. It Ms Epati said the Law Society did Statement specifically identifies is important to find a solution that not in any way intend to undermine these new possession offences as reflects New Zealand needs, while or diminish recognition of the efforts a source of human rights concerns.” achieving the right balance between of those involved. The Bill of Rights Act was engaged the different objectives. “However, in circumstances by these new offences because the The Law Society says as the Issues such as these we emphasise the reverse onus of proof in section 66 Paper points out, there is a need importance of proper democratic applies, she said. It was important for independently set and audited processes, including adequate that Crown Law’s advice was controls and for ongoing monitoring time for public and select com- reviewed in relation to this. of procedural compliance, fairness, mittee scrutiny of significant new The Law Society also pinpointed proportionality and efficacy. It sup- legislation.” seven technical questions which ports the introduction of a small She said there were risks of leg- relate to the drafting of the bill. independent multi-disciplinary islating with haste. It said if there was time it may be panel as the most appropriate form “The lack of opportunity for helpful for officials to consider these. of oversight body.

10 LAWTALK 928 · May 2019 NEW ZEALAND LAW SOCIETY

Law Society opposes new Brunei laws

A Law Society statement has expressed total opposition to implementation of a new penal code by Brunei on 3 April. The new code imposed the death penalty for a number of offences, including death by stoning for adultery and gay sex. Public flogging was also introduced as pun- ishment for abortion, as well as amputation for theft. The Law Society strongly urged Brunei authorities to reconsider their decision. “There has been justified condemnation worldwide for Brunei’s stated decision to introduce a number of Law Society releases inhumane laws,” the convenor of the Law Society’s Rule of Law Committee, Austin Forbes QC, said. video of new President “This would be a serious setback for human rights for the people of Brunei. We join with the United Nations, In a first, the New Zealand Law Society released a video many countries, organisations, communities and indi- in April to introduce the new President, Tiana Epati. The viduals in totally opposing and condemning these cruel 3 minute 22 second video was produced for the Law and unjust laws.” Society by video production company Chillbox Creative and features Tiana sharing her vision for the legal community. It has proved very popular and had been Crown pastoral land proposals viewed over 3,300 times in the first fortnight after its could lead to duplication release. The video can be viewed at lawsociety.org.nz/ News-and-Communications/News/Meet-Tiana-Epati Proposals for changes to the management of Crown pastoral land could result in unnecessary and inefficient regulatory duplication, the Law Society has said. Clarity sought for internet Commenting on a Land Information New Zealand site blocking powers where discussion document on the proposed changes, the copyright infringement Law Society says it appears a dual regulatory regime is proposed, under the Crown Pastoral Land Act and There are possible legal arguments under the Copyright the Resource Management Act 1991. However, it is not Act 1994 and the courts’ inherent jurisdiction that a clear that the potential for unnecessary duplication of New Zealand copyright owner can seek an internet an inconsistency with the existing RMA regime has been site blocking injunction where an ISP is being put on adequately explored. notice that its services are being used to illegally upload/ “It is not clear why a dual regulatory regime for con- download or stream copyright infringing content, the sents under both Acts is needed in relation to Crown Law Society has said. pastoral land. The RMA applies to all land use regardless In comments on MBIE’s issues paper on Review of the of how it is owned, and the discussion document does Copyright Act 1994, the Law Society says there have been not explain why the effects of the use of Crown pastoral no cases yet in New Zealand to test the arguments. It land cannot be managed under the RMA alone.” notes that many other countries have implemented stat- The Law Society says if regulatory gaps need to be utory provisions under which site blocking injunctions addressed, it would have been helpful for the discussion can be sought against ISPs either through the courts or document to have examined the mechanisms currently through administrative bodies. This includes 16 European available in the RMA. countries, 10 in Asia Pacific – including Australia – and “Providing direction through the appropriate mecha- five in South America. nisms in the RMA, rather than establishing a new con- The Law Society says there is now an opportunity to sent process for pastoral lessees, might ensure that the deal with the matter by legislation in the new or updated objectives in managing Crown pastoral land are achieved Copyright Act. It says there should be active considera- without unnecessary duplication or inconsistency with tion of a statutory provision to allow the implementation the existing RMA regime.” of site blocking injunctions in New Zealand.

11 NEW ZEALAND LAW SOCIETY May 2019 · LAWTALK 928

Oranga Tamariki Chief Expansion of Labour Inspector Executive youth advocate powers more than a regulatory fix appointments approved Proposed changes in the Regulatory Systems (Workforce) The Law Society’s Board has approved the Chief Amendment Bill (No 2) which expand the powers of Executive of Oranga Tamariki/Ministry for Children (or Labour Inspectors could be considered substantive and his/her appropriately authorised delegate/nominee) as more than merely a “regulatory fix”, the Law Society has an approved “body, officer, or person” for direct instruc- said in a submission on the bill. tion of barristers for the purposes of rules 14.5.1(h) and It notes that the bill is an omnibus bill which makes 14.6 of the Conduct and Client Care Rules. The Board small regulatory changes to various Acts. However, granted the approval on the basis that the approval is it questions the proposed changes to the powers of for the appointment of youth advocates only and the Labour Inspectors for investigating whether a person appointments are made from the Youth Advocates lists is an “employee” or a place is a “workplace”. maintained by the Court Services Manager of each Youth Expanding their powers to include investigating Court (made following the Appointment and Review whether any person performing work is an employee Procedure for Youth Advocates issued by the Principal will clarify current uncertainty. However, it is a substan- Youth Court Judge) and on the same basis as current tial change for a Labour Inspector to also proactively Youth Advocate appointments made by the Youth Court. investigate whether any place is a workplace, and the purpose of the change is unclear. Rob Goldsbury elected president The Law Society recommends reducing the scope of of Whanganui branch the new provisions if they are to remain in a Regulatory Systems Bill. In-house lawyer Rob Goldsbury was elected president of the Law Society’s Whanganui branch at the AGM on 8 March. Mr Goldsbury was admitted as a barrister and Kent Arnott re-elected solicitor in February 1980. He is legal counsel for the Marlborough branch President Whanganui District Council. He takes over as president from Mark Bullock. Blenheim barrister Kent Arnott has been re-elected The following branch Council was elected: President of the Marlborough branch of the New Zealand President: Rob Goldsbury. Law Society. Vice-President: Chris Wilkinson-Smith. Mr Arnott works in general litigation, with a focus on Council: Samantha Bills, Megan Christie, Kathryn criminal, employment and relationship property matters. Crooks, James Gilbert, Beverley Pearce, Scott Oliver, He was admitted to the bar in 2008 and has lived and Nicola Refoy-Butler. practised in Blenheim since. The following branch Council was elected at the AGM David Ure re-elected on 26 March 2019: Gisborne branch President President: Kent Arnott. Vice-President: Laurie Murdoch. David Ure was re-elected president of the Law Society’s Council: Savannah Carter, Tom Dobbs, Autumn Faulkner, Gisborne branch at the branch’s annual meeting. Mr Ure Nick McKessar, Dharshini Ramanathan. is a director of Grey Street Legal Ltd, which specialises in property and commercial law. He was admitted as a Janet Copeland elected barrister and solicitor in December 2002. The following president of Southland branch Council was elected at the AGM: President: David Ure. Invercargill employment law specialist Janet Copeland Vice-President: AJ Baker. has been elected President of the Southland branch of Council: Alison Bendall, Alistair Clarke, Heather Vaughn, the Law Society. Ms Copeland is managing partner of Holly Tunstall, Julie Mettrick, Mana Taumaunu, Manaaki Copeland Ashcroft Law. After graduating from Otago Terekia, Michael Gordon, Raewyn Tretheway, Vicki Thorpe. University with law and commerce degrees she was admitted in May 1992. Since starting practice in criminal and civil litigation, she has specialised in employment Contributing articles to LawTalk law for the last 20 years. She takes over as president We welcome articles related to the New Zealand legal profession, at work from Malcolm McKenzie. or leisure. All contributions and inquiries about submission of articles can The following branch Council has been elected: be emailed to the Managing Editor, [email protected]. Contact President: Janet Copeland. before submission of an article is preferred. The New Zealand Law Society Vice-President: Paul Gray. reserves the right to edit all material submitted for publication. Council: Toni Green, Phil McDonald, Malcolm McKenzie, Mike Mika, Joseph Mooney, Richard Smith.

12 LAWTALK 928 · May 2019 NEW ZEALAND LAW SOCIETY

Courthouse committee The Law Society is now on Instagram: has wide remit #nzlawsociety

The New Zealand Law Society is The Law Society’s Courthouse now on Instagram. Instagram is an Committee membership was image-based social media platform refreshed and expanded in 2018 to that provides a way for networks provide better coverage across the and communities to interact. The regions and closer monitoring of Law Society has added Instagram the range of issues impacting on to its social media presence on courthouses and court users around LinkedIn, Facebook and Twitter to New Zealand. do three things: The committee members are Mark Keep lawyers up to date on legal Wilton (Convenor, Wellington), news and collegial events: Changes Maria Hamilton (Hawke’s Bay), happen fast in the profession. Iain Hutcheson (Auckland), Instagram is an easy way to keep Prue McGuire (Rotorua), Leona up to speed with what’s going on. McWilliam (Wellington), Craig We also want to celebrate the work Ruane (Christchurch), Kingi Snelgar of legal organisations from around (Auckland), and Max Winders ▴ Mark Wilton Aotearoa. With Instagram we can (Dunedin). bring followers closer to people The committee monitors and Nelson, New Plymouth, Napier, doing great things in the industry. provides a coordinated national Palmerston North and Whanganui. Enable future lawyers to have an response to issues such as court The committee has also assisted the insight into the legal profession: closures and restructuring, modern- Canterbury Westland Law Society Becoming a lawyer is a challenging isation and technology initiatives, branch on the issue of Police con- pathway. Students are busy. Once and court security/access to court- duct in the Christchurch Justice practising they find themselves houses, bearing in mind the needs precinct, including drafting cor- being regulated by an organisation of all court users. respondence to key stakeholders. they may know little about – the “The committee’s remit is not The committee is liaising with the New Zealand Law Society. limited to addressing issues relating Marlborough branch in relation An Instagram page is one way to the physical spaces that operate to the problem of delayed bail of helping the people who are the as courts, but also includes matters hearings in Blenheim - the issue future of the legal services industry that affect access to justice and the has been raised with the ministry to be aware of the opportunities administration of justice within and the Law Society understands that await them. They can access those courts (such as AVL and court a procedure to ameliorate delays is information on the transition from resourcing),” says convenor Mark being worked on. The committee student to lawyer. We also hope to Wilton. “Committee representatives is also working with the Taranaki offer inspiration on how future law- meet regularly with senior ministry branch in relation to local concerns yers can bring their own change to officials to raise resolve current about Family Court matters being New Zealand law. The inspirational courthouse issues.” dealt with outside the purpose-built video and conference address by “Courthouse issues are generally Family Court rooms. This work has new Law Society President Tiana managed locally in the first instance, included raising concerns with the Epati are great examples of this. with input from Law Society ministry, in addition to supporting Offer lawyers’ clients and the branches and local court managers. the branch to address bail/arrest public access to legal industry The branches – and practitioners issues at the local level. news and information about our across the country – are encouraged Practitioners should raise any services: The wider community can to get in touch with the committee courthouse concerns/problems get information on our wide variety of if there are any issues of potentially with their local branch manager/ services, and any updates on changes national significance, or where a president in the first instance. If to these. Legal current events, law co-ordinated national response is the issue appears significant, or reform activities and community appropriate.” you’d like to check whether it is notices will often be added to give a ‘national’ issue, please contact a perspective on the activities of the Recent work Emily Sutton, law reform adviser to Law Society and legal profession. In 2018 the committee was instru- the Courthouse Committee at emily. The Law Society’s Instagram mental in securing scheduled [email protected], phone 04 page is at www.instagram.com/ regional admission ceremonies in 463 2978. nzlawsociety/

13 NEW ZEALAND LAW SOCIETY May 2019 · LAWTALK 928

What should I declare at practising certificate renewal time?

BY CHRISTINE SCHOFIELD

The practising certificate renewal round certificate the Law Society may take into practising certificate issuing. If any matter is approaching with all current practising account any matters it considers relevant, needs investigation, you may be requested certificates lapsing on 30 June 2019. including but not limited to, the matters set to provide further information and it You will shortly be emailed a guide for out in ss41 and 55 of the Act. Some of these may be referred to a Law Society Practice renewal. You will already have completed matters that you must declare include: Approval Committee. You will be advised your CPD declaration which was due on • any conviction for any offence (if not if this is the case. The Law Society may 31 March 2019. previously brought to the Law Society’s make other inquiries if it considers these You will need to make a “fit and proper attention) which has not been “clean are relevant. This process can take some person” declaration to renew your practis- slated” under the Criminal Records time to complete so please complete your ing certificate for the 2019-2020 practising (Clean Slate) Act 2004. This includes any declaration as soon as you are able. year. There is a range of matters that you are excess breath/blood alcohol conviction You are required to be open and frank required to inform the Law Society about if and any traffic offence that resulted in in your declaration. If in doubt, please they have occurred since issue of your last a conviction; include. practising certificate, or if there is any “fit • any current or pending charge before There is no need to wait for the prac- and proper person” matter that you have a Court or Tribunal (in New Zealand or tising certificate renewal round if you not previously disclosed to the Law Society. overseas); have matters of concern to report. There • a mental or physical health condition that is an ongoing obligation to advise the Law Declaration might affect your ability to practise law; Society of any matter that might affect your The declaration is in three parts. • bankruptcy and/or liquidation/receiver- continuing eligibility to hold a practicing The first is an undertaking to comply ship of a company of which you are a certificate. See regulation 8 of the Lawyers with the fundamental obligations of law- director; and and Conveyancers Act (Lawyers: Practice yers as set out in s4 of the Lawyers and • disciplinary matters in another occupa- Rules) Regulations 2008. Conveyancers Act 2006 (Act). In essence tion or jurisdiction. you are declaring that you are aware of This part does not require you to declare Paying for your these and are complying with them. any open complaints that are being con- practising certificate Section 4 reads as follows: sidered by a standards committee, by the Payment must be made by or before 1 July “Every lawyer who provides regulated Legal Complaints Review Officer, or by the 2019 to complete the renewal process. services must, in the course of his or her Lawyers and Conveyancers Disciplinary If someone else in your organisation is practice, comply with the following fun- Tribunal that the Law Society is already attending to payment please ensure they damental obligations: aware of. However, the Law Society does do so prior to the due date. On 1 July your • to uphold the rule of law and to facilitate consider that workplace conduct issues, practising certificate will lapse and you the administration of justice in New which have not previously been brought will then have to apply for a new prac- Zealand; to our attention are relevant fitness issues tising certificate rather than complete the • to be independent in providing regulated and should be declared. renewal process. If you receive emails that services to his or her clients; Thirdly, you must declare whether you have not completed the process, please • to act in accordance with all fiduciary you are complying with any orders of a do not disregard these as they are only sent duties and duties of care owed by law- standards committee, the Legal Complaints to lawyers who have not fully completed yers to their clients; Review Officer or the Lawyers and the process. • to protect, subject to his or her overriding Conveyancers Disciplinary Tribunal. Your practising certificate will issue duties as an officer of the High Court and If you owe any outstanding costs or electronically. You do not need to print to his or her duties under any enactment, fines resulting from a disciplinary matter this off unless you would like a hard copy. the interests of his or her clients.” or have not complied with any other order The second part relates to any matter you must declare this. If you have entered Further assistance that does or might affect your fitness to into a time payment arrangement and If you have any issue with making the be issued with a practising certificate. payments are up to date, there is no need online declaration or want to discuss any As regulators of the profession, the Law to include this. matter please call a member of the Registry Society must consider whether there are Team on 0800 22 30 30 for helpful guidance any grounds under the Act for declining What will happen if I and assistance. or refusing to issue a practising certificate. declare something? In determining whether a person is a “fit Most matters will probably not be sig- Christine Schofield is manager of the Law and proper person” to hold a practising nificant enough to prevent your new Society’s registry team.

14 LAWTALK 928 · May 2019 PEOPLE IN THE LAW · ON THE MOVE

PEOPLE IN THE LAW ON THE MOVE

Justice Collins appointed general dispute resolution and intellectual in Auckland, away from his home province to Court of Appeal property, then a further three years as a and neither the Christchurch judiciary nor consultant Special Counsel with a focus on the profession had the chance to mark his Justice David Collins has been appointed media and intellectual property litigation. appointment in the usual way. a judge of the Court of Appeal. Justice In January 2019 she joined the Auckland Associate Judge Matthews graduated Collins graduated LLB(Hons) (First Class) Bar, co‑founding Sangro Chambers. from the University of Canterbury in 1972 from Victoria University of Wellington Justice Walker is the author of the text and was admitted in 1973. He was a partner in 1975, subsequently gaining an LLM in Reputation Matters: A Practical Legal Guide at Lane Neave from 1975 to 1987 when he 1976 and an LLD in 1993, both from Victoria to Managing Reputation Risk. The new Judge joined the Independent Bar. He practised University of Wellington. He also obtained will sit in Auckland and will be sworn in mainly in the civil area. He was an experi- an LLM-JS from Duke University in the on 10 May. enced resource management commissioner United States. and chaired the Motor Vehicle Disputes Admitted as a barrister and solicitor in Sir Terence Arnold Tribunal from 1998 to 2004. 1976, Justice Collins became a partner in appointed acting the firm now known as Rainey Collins in Supreme Court Judge Final Cook Islands sitting 1985. He left the partnership in 1995 to join for Sir Ian Barker the Independent Bar, and was appointed Former Supreme Court judge Sir Terence Queen’s Counsel in 2000. He was appointed Arnold has been appointed an acting A final farewell sitting forSir Ian Barker Solicitor-General in September 2006. Prior Judge of the Supreme Court for a period QC was held in the Court of Appeal of the to that Justice Collins held positions commencing on 12 April 2019 and ending Cook Islands on 4 April. Sir Ian served in as President of the Wellington District on 11 April 2021. Sir Terence retired from the Cook Islands Court of Appeal for 25 Law Society, Chairman of the Accident the Supreme Court in 2017 and was sub- years from 1994 to 2019. Cook Islands Court Compensation Corporation, Chairman sequently appointed an Acting Judge of of Appeal President Sir David Williams QC of the Health Practitioners Disciplinary the court for a two-year term from 12 April says Sir Ian’s contributions to the law and Tribunal and Executive Vice President 2017 to 11 April 2019. administration of the Cook Islands have of the World Association of Law and been truly outstanding. Medicine. Justice Collins was appointed Acting Appeal Court “Sir Ian also took up, quite voluntarily, a a Judge of the High Court on 16 March 2012. Judge appointed number of miscellaneous pro bono projects for the Cook Islands including revising the Auckland barrister The Hon Lynton Laurence Stevens has Constitutional and legislative framework appointed to High Court been appointed an acting Judge of the for the Court of Appeal, preparing a new Court of Appeal from 29 April 2019 to 28 section of the Judicature Act and a new Auckland barrister April 2020. After appointment as a Queen’s version of the Court of Appeal Rules and Tracey Walker has Counsel in 1997 he was appointed to the drafting changes to the Constitution. In been appointed a High Court bench in 2006 and to the Court 2017, Sir Ian prepared the new Rules of Civil Judge of the High of Appeal in June 2016 until his retirement. Procedure for the Cook Islands based on Court. Justice Walker the New Zealand High Court Rules,” he graduated BA and LLB Valedictory sitting says. from the University of for Associate Auckland in 1988 and Judge Matthews Sangro Chambers was admitted in December 1988. She began breaks tradition establised in Auckland her legal career at Simpson Grierson. In December 1989, she travelled to the United The Christchurch High Court was the venue Four senior practitioners have established Kingdom, joining the commercial litigation for a valedictory sitting on 12 April to mark Sangro Chambers at 23 Customs Street in department of London firm Slaughter the retirement of Associate Judge John Auckland. and May in 1990. In 1991 she obtained Matthews. There was a break with the Earl Gray is an inter- an LLM from the University of London, tradition that judges of the High Court nationally recognised and returned to New Zealand to re-join are farewelled at their final sitting by the intellectual property the Auckland office of Simpson Grierson legal profession but in the absence of their lawyer, who was pre- in 1992. fellow judges. This is because Associate viously a partner with Justice Walker joined the partnership Judge Matthews was appointed shortly Simpson Grierson for 21 of Simpson Grierson in 1997, spending 16 before the 22 February 2011 earthquake. years. Earl specialises in years as a litigation partner specialising in Because of the emergency he was sworn in disputes and advisory

15 ON THE MOVE · PEOPLE IN THE LAW May 2019 · LAWTALK 928

work in all aspects of intellectual prop- Raynor Asher appointed has worked for professional regulators in erty, and work in related fields such as life Media Council chair the United Kingdom. She has also been sciences, sports, sales and marketing, and appointed Pro Bono Director for New franchising. Retired Court of Appeal judge Raynor Zealand. Jane Glover has Asher has been appointed chairman of Emma Moran is based in Wellington. She worked across a range the New Zealand Media Council. He will was admitted in June 2008 and practises of civil disputes, and take up his role on 1 July from Sir John in the areas of civil litigation, dispute has particular expe- Hansen, who has chaired the Council since resolution and public law. Emma has rience in intellectual 2013. Mr Asher was appointed to the High experience advising clients and resolving property. She is Deputy Court bench in 2005 and then appointed disputes across a range of civil matters and Chair of the Copyright to the Court of Appeal in 2016. commercial dispute resolution experience. Tribunal and is an Assistant Commissioner She acts for a number of local authorities of Trade Marks and Patents. Daniel Weatherley joins and public sector organisations. Katherine Anderson, formerly a Young Hunter partnership litigation partner at In-house lawyer Anthony Harper, is an Daniel Weatherley appointed to Callaghan experienced regulatory has joined the Young Innovation Board and public law special- Hunter partnership ist. She has worked at from 1 April. Daniel Angela Bull has been appointed to the the heart of central joined the firm in board of Callaghan Innovation. Ms Bull Government for New 2008 after graduation was admitted as a barrister and solicitor Zealand Police, and led from the University of in June 1998 and is chief executive of the the legal and risk functions at Auckland Canterbury. He special- privately-held property investor Tramco Council. Katherine is experienced in inquiry ises in civil litigation and insurance law Group Ltd. Her appointment is for a three- work and is also a part-time member of the and has successfully appeared at all levels year term. Human Rights Review Tribunal. of the New Zealand court system. As a partner at Simpson Grierson for Cooney Lees Morgan almost 40 years, Willy Akel has diverse DLA Piper appoints promotions litigation experience two Special Counsel and has appeared in Cameron Russell has been appointed many high profile cases DLA Piper New Zealand has announced a partner at Tauranga firm Cooney Lees in the High Court, Court the appointment of two special counsel. Morgan from 1 April. Cameron gained LLB of Appeal, and Supreme Melissa Johnston is based in Auckland. and BCom degrees at the University of Court. He has been Admitted in December 2002, she specialises Otago and was admitted in July 2010. He leading counsel in a in employment and acts for both employ- is a member of the property and devel- number of leading ers and employees on a range of matters, opment team, specialising in property media and defamation cases. including redundancies, restructuring, law. Cameron also has experience in Tracey Walker was also an establish- health and safety, personal grievances and corporate acquisitions, disposals, gov- ment member of Sangro Chambers until employment documentation. Melissa also ernance, securities law and family trust her appointment to the judiciary. has experience in medico-legal law and related matters.

16 LAWTALK 928 · May 2019 PEOPLE IN THE LAW · ON THE MOVE

Cooney Lees Morgan also has announced 2018 and works in the litigation and local iCLAW changes a number of other promotions. government team. Hamilton office Alesha Evetts has been promoted to Nicola King has been promoted to senior associate. Alesha specialises in all senior solicitor. Nicola joined Cooney iCLAW Culliney Partners has changed its aspects of family law. Much of her work Lees Morgan in 2017 and works in the Hamilton address. It is now located at involves property divisions involving property and development team. Her Level 4, Panama Square, 14 Garden Place, trusts, partnerships and companies, along work predominantly involves commercial Hamilton. The postal address has also with clients wanting to protect their per- property transactions and developments, changed to PO Box 135, Hamilton 3240. sonal assets when entering their second residential property and private client relationship. work, and subdivisions of all sizes. New staff join Alyson Hendren has been promoted to Rachel van Rossen has been promoted Grantham Law associate. Alyson works in the corporate to senior solicitor. Rachel works in the pri- and commercial team with her areas of vate client and trust team. Her areas of Fraser King has joined the Hamilton expertise being capital raising, contract expertise lie in asset protection, wills and office of Grantham Law as a director, and licensing along with mergers and estate administration, kiwifruit, retirement along with Megan Thomson (associate) acquisitions. villages, trust and local government. and Rhiannon Scott (staff solicitor) from Tania Waikato has been promoted to TK Legal. Fraser specialises in estate and associate. Tania works in the litigation and Changes at civil litigation and joins directors Scott local government team. She has a broad Treadwell Gordon McKenna, Dineen Grantham and Michael base of experience working with local busi- Grantham. Grantham Law operates in nesses, councils and other organisations Whanganui firm Treadwell Gordon has Taupo, Turangi and Hamilton. across a range of industries in both New announced a number of staff changes. Zealand and Australia. Kirsten Harper has returned to the Sarah Blackmore joins Jeff Stringer has been promoted to firm as a principal having worked there Russell McVeagh as associate. Jeff ’s practice includes advising in 2005-2008. She has been working in Special Counsel private clients around creating and main- Feilding since 2010 and continues to live taining appropriate legal arrangements there. Kirsten’s specialties are rural, com- Commercial property lawyer Sarah to help them plan for the future. This mercial, property and construction law, Blackmore has joined includes trust reviews, trust formations leasing and asset protection. Kirsten will Russell McVeagh as a and administration, estate planning, be working out of the Marton office pro- special counsel in the powers of attorney and related property viding services to clients in the Rangitikei/ property and construc- matters. Manawatu areas. tion team. Before join- Ashleigh Fletcher has been promoted to Andrew Thomas has been appointed ing the firm Sarah acted senior solicitor. Ashleigh is a member of the a principal based in the Taihape office. on several large scale corporate and commercial team. Her areas Andrew joined Treadwell Gordon 18 commercial acquisition of expertise are mergers and acquisitions, months ago and has a varied practice ser- and disposal transactions of freehold, general contracting and the provision of vicing the local community. He has a wide leasehold and unit title estates. She has regulatory compliance advice. knowledge of land law and experience in extensive commercial property expertise Colleen Bain has been promoted to commercial law and resource management and specialist knowledge in commercial senior solicitor. Colleen works in the matters. leasing, residential subdivisions, forestry corporate and commercial team where Scott Oliver has been appointed a and foreign investment in New Zealand she advises on a variety of commercial principal. Scott has been with Treadwell property. law areas including capital raising, con- Gordon since July 2017. He focuses on the tracting & licensing, privacy, financing, firm’s Family Court and Criminal Court Davenports Harbour technology, agribusiness and incorpo- team and splits his time between the appoints new director rated societies. Whanganui, Marton, Taihape and Ohakune Mallory Schofieldhas been promoted to courts. Davenports Harbour senior solicitor. Before moving to Tauranga, Pétra Allen has been appointed an asso- has appointed Mallory worked in two well established ciate. She has been with the firm since 2015. Bronwen Newcombe and highly regarded law firms in Auckland Pétra is from Whanganui and an all-round as a director. Bronwen practising in the areas of civil litigation, general practitioner of law who enjoys the joined the firm in 2010 employment and criminal prosecutions. diversity of work and “hands on” approach and leads the employ- Mallory joined Cooney Lees Morgan in Treadwell Gordon offers. ment and HR advisory

17 ON THE MOVE · PEOPLE IN THE LAW May 2019 · LAWTALK 928

practice. She provides advice on all aspects bargaining advocacy. assists individuals and their families with of employment law and HR advisory ser- Jack Rainbow has their immigration requirements as well vices, including leadership development, joined the firm as a as advising international and major New contentious and non-contentious employ- solicitor. Jack grad- Zealand corporations. ment matters, strategic restructuring, uated from Victoria personal grievances, negotiated exits and University in 2017 and Mark Todd new improving staff performance. worked at another FMA Chairman Wellington boutique Dundas Street firm specialising in Former Bell Gully partner Mark Todd has Employment Lawyers Māori land claims. He decided to special- taken over from Murray Jack as Chairman appointments ise in employment law after developing a of the Financial Markets Authority. Mr strong interest in it while volunteering at Todd, who holds an LLB(Hons), has been Wellington specialist employment firm the Community Law Centre. a member of the FMA Board since 2015 and Dundas Street Employment Lawyers has has over 20 years’ experience in financial announced a number of appointments. Two partners appointed markets regulation which include holding David Traylor has by Pitt & Moore governance roles with listed and unlisted been appointed part- companies. He was a partner at Bell Gully ner. Admitted as a Pitt & Moore has appointed two new part- for 15 years and co-founded Anti-Money barrister and solicitor ners from 1 April. Laundering Solutions and chaired Mint in November 2006, Clare North Asset Management. He resigned his roles David joined the firm obtained an LLB(Hons) before taking over as FMA Chair. in 2014 as a senor from the University associate. He had of Liverpool in 2007 Anna Rawlings previously worked as a specialist employ- and was admitted in appointed Commerce ment lawyer at MinterEllisonRuddWatts New Zealand in June Commission Chair and then at the Treasury Solicitor’s 2011. She specialises in Department in the United Kingdom. property and commer- Former MinterEllisonRuddWatts partner David has significant experience in all cial law including property development, Anna Rawlings has been appointed Chair aspects of employment law but the focus commercial leasing, commercial contracts, of the Commerce Commission. She takes of his practice has been within the public financing, residential, rural and commer- over from Mark Berry, who will step down sector. He has also developed a particu- cial land transactions. Clare also provides after two terms at the end of May 2019. lar expertise in running employment succession and trust advice to families, Ms Rawlings has been a member of the investigations. individuals and businesses. Commerce Commission since 2014. She has Alastair Espie Nick Mason special- been involved in a range of Commission has been promoted ises in employment and work over this period, including merg- to senior associate. immigration law. He ers and enforcement decisions under Alastair joined Dundas works with employers the Commerce Act, consumer matters Street in 2016 after and employees across under the Fair Trading Act and Credit nearly seven years a variety of sectors, Contracts and Consumer Finance Act, with another boutique including hospitality, and some involvement in aspects of tel- employment law firm horticulture, viticul- ecommunications regulation under the in Wellington. He is a specialist employ- ture, transport, manufacturing and fish- Telecommunications Act. ment lawyer, experienced in advising and eries. Nick has BA and LLB degrees from Ms Rawlings was previously a partner in representing clients on a wide range of Victoria University of Wellington and the disputes resolution division at Minter issues, including litigation and collective was admitted in July 2007. Nick regularly Ellison Rudd Watts, where she specialised

18 LAWTALK 928 · May 2019 PEOPLE IN THE LAW · ON THE MOVE

in competition, regulation and consumer licensing arrangements. She has worked and the UK in construction law. She is law. Ms Rawlings holds BA and LLB(Hons) with New Zealand, Australian and multi- dual-qualified as a solicitor in England degrees from the University of Auckland, national clients in the technology, manu- and Wales, and as a barrister and solicitor and an LLM from the University of Toronto, facturing, professional services, cosmetic in New Zealand. where her study focused on law and and retail industries. economics. Joe Williams has been promoted Changes at WRMK to senior solicitor in the Auckland Lawyers Tom Dobbs appointed Employment team. Jonny Sanders has Associate at been promoted to senior solicitor in the WRMK Lawyers has welcomed Patrick Gascoigne Wicks Christchurch Employment team. Hayden Steuart as its new O’Donnell has been promoted to senior director and leader Blenheim firm solicitor in the Christchurch Resource of its newly-opened Gascoigne Wicks has Management team. Rebecca Harris has Warkworth office. promoted Tom Dobbs been promoted to senior legal executive in Patrick joined the to associate. Tom was the Christchurch Commercial team. firm on 1 March and admitted as a barrister the Warkworth office and solicitor in October Bankside Chambers opened in early April. 2015 and has been welcomes seven Patrick has many years of general legal with the firm since. He new members experience, advising clients on buying works in the commercial/conveyancing and selling homes and businesses, sub- team which covers a broad range of legal Auckland’s Bankside Chambers has wel- divisions, commercial leases, structuring issues including property, finance, com- comed seven new members: Sam Lowery, commercial entities and forming and mercial, trusts and wills. Christopher Finlayson QC,Lauren running family trusts. Lindsay, Graeme Christie, Sarah WRMK Lawyers’ Warkworth office open- Norman Te Kanawa- Jerebine, Laura O’Gorman and Carmel ing means it now has four offices, including Gwynne joins NL Lawyers Walsh. Kerikeri, Whangārei and Dargaville. Simon Davies- Norman Te Kanawa-Gwynne has joined Simpson Grierson Colley has been Tokoroa law firm NL Lawyers. Mr Te promotes Lisa Curran promoted to senior Kanawa-Gwynne was admitted as a bar- to special counsel associate from 1 rister and solicitor in July 2004 after gradu- April. Simon joined ating LLB and BSocSci from the University Simpson Grierson has the firm’s commercial of Waikato. He has been practising as a promoted Lisa Curran team in 2017 and is a barrister sole after previously working for to special counsel. Lisa specialist in construc- Hart & Associates as a senior associate. specialises in major tion and employment law. He worked in projects and her expe- Auckland for national and international Duncan Cotterill rience extends across a firms, before returning to Northland promotes five range of industry sec- where he grew up. tors including energy, Heidi Mackey has Penny Birch has been promoted to asso- building, roading, water and waste water, been promoted to ciate in the Auckland commercial team. electricity, telecommunications, and senior lawyer, effective Penny advises clients on all aspects of com- mining. She has also advised on all of 1 April. Heidi joined mercial contracts, consumer protection the Public Private Partnerships Projects WRMK Lawyers ear- and advertising law, business acquisitions, instigated in New Zealand. Lisa has over lier this year and is a corporate structuring, franchising and 20 years’ experience in New Zealand member of the firm’s

THE HON. NICHOLAS DAVIDSON QC Fellow (Arbitration) AMINZ

Practising as an arbitrator ▸ www.davidsonqc.co.nz Alison Cleal, Assistant and mediator. ▸ [email protected] ▸ [email protected] Available throughout NZ. ▸ 021 1940 072 ▸ 09 887 3439

19 ON THE MOVE · PEOPLE IN THE LAW May 2019 · LAWTALK 928

trusts and life planning team. Her practice elected President of ADLS Inc at the range of litigation matters, including civil spans trusts, property, asset protection and recent AGM. Tony has been a committee litigation, environmental law, regulatory estate planning. member of the Criminal Bar Association enforcement, local government, and has for 17 years and was CBA President for four experience in criminal prosecution. Bonny Broad appointed years. Admitted as a barrister and solicitor Daniell Associates in September 1998, he is a past member New lawyers join Ltd director of the Police Association, director of Police Tompkins Wake and Families Credit Union, and has served Auckland team Bonny Broad has been appointed a as chairman and member of many pro- director of Taupo family law firm Daniell fessional and community committees and Tompkin Wake has welcomed a number of Associates Ltd from 1 April. Bonny special- charitable trusts. new members of its Auckland team. Recent ises in all aspects of family law. appointments in the Auckland office Donald Fuller retired from the practice Robbie Bryant joins SBM include partner Liz Lim, special counsel on 31 March. Legal as senior associate Nicky Thomas, partner Campbell Izzard and partner Mike Shanahan. Litigation Rainey Collins Robbie Bryant has joined SBM Legal specialist Simon Jass has been promoted celebrates centenary as a senior associate. to special counsel. Before joining the Wellington law firm Rainey Collins is firm he worked as an Simmonds Stewart celebrating its 100th year in business. The employed barrister in appoints Chris Wilson firm’s founder, Richard Collins, commenced a specialist Auckland as Singapore partner practice in Wellington on 15 March 1919 and employment law prac- was joined shortly after by Wilfred Rainey. tice. Robbie graduated Simmonds Stewart has appointed long- Rainey Collins covers many areas of the law LLB from the University term team member Chris Wilson as a including business (led by partner Kirsten of Waikato in 2010 and was admitted as a partner of the firm from 16 April 2019. Chris Ferguson); property sales and purchases; barrister and solicitor in September 2011. runs the firm’s Singapore office where he asset protection; wills and estates (led by Before studying law Robbie graduated from specialises in venture capital and tech M&A partner Claire Tyler); Māori issues (led Auckland University of Technology with transactions. Originally joining Simmonds by partner Peter Johnston); and family, diplomas in business and management. Stewart in 2007 as a solicitor, Chris has employment, insurance and education worked in the firm’s Wellington, Auckland (led by partner Alan Knowsley). The firm Emma Light new Russell and Singapore offices. will celebrate its milestone with a series McVeagh senior associate Simmonds Stewart says it has been of events across the year. advising tech clients in Southeast Asia Emma Light has been appointed a for four years and Chris opened the firm’s Sarah-Lee Stead senior associate in Singapore office in early 2017. It says its becomes Kensington Russell McVeagh’s lit- Southeast Asian practice has grown rapidly Swan Special Council igation team based in since then, and now represents over 100 Wellington. Emma has tech companies in the area. Kensington Swan joined Russell McVeagh has promoted Sarah- from a Wellington- Wilson Harle promotes Lee Stead to special based practice where Adam Holden to counsel. Sarah-Lee is she served as a Crown senior solicitor an experienced advo- prosecutor, and brings experience in cate and litigator who civil litigation. She specialises in a wide Wilson Harle has promoted Adam advises on a wide range of health and safety issues. She provides advice on compliance and workplace management issues and Trusted practice management supports clients through incident inves- tigations and prosecutions. In her new role, software for NZ lawyers Sarah-Lee will be responsible for the firm’s Easy to learn, easy to use. Save time and relationships with its Auckland-based ! health and safety clients. increase profits. That’s what users say New: Document management & Internet banking. Free installation and Tony Bouchier elected training. Visit our website for testimonials from firms just like yours. President of ADLS Inc www.jpartner.co.nz [email protected] 09 445 4476 JPartner Systems Ltd Auckland barrister Tony Bouchier was

20 LAWTALK 928 · May 2019 PEOPLE IN THE LAW · ON THE MOVE

Holden to the position of senior solici- of Canterbury on 1 One example of this is The Terrace – Sue tor. Adam has a BA/LLB(Hons) and was January. worked with Antony Gough, both as a admitted to the bar in 2015. He joined “Sue has had a long lawyer and as a strategic advisor, as Antony Wilson Harle in early 2017 following a and distinguished and his family built The Terrace, navigating Judges’ clerkship. Adam has experience career as a lawyer for through the various challenges raised by across the firm’s broad practice but has nearly 35 years and such a large rebuild project. The Terrace particular interest in trust law, public law will be missed by us is a huge success, and an important part and contract. all,” says firm partner of rebuilding our city – and is testament Sarah Manning. “However, the opportunity to the skill and foresight of all involved.” Harkness Henry to head the University of Canterbury is a welcomes new solicitors fantastic honour, and Sue will excel in that role just as she has with the firm for so Hamilton firm Harkness Henry has many years.” Advertising in LawTalk wecomed two new solicitors to the firm. Previously Pro Chancellor at the and LawPoints Jessica Mathieson began on 5 March and University of Canterbury, Sue is also a Inquiries about advertising in Laura Fischer on 29 April. director of KiwiRail. She has also been a LawTalk or LawPoints can be made director of the Lyttelton Port Company, the to [email protected]. Gemma Keystone NZ Symphony Orchestra and the Public A media kit with details of adver- becomes Kaimai Law Trust. Sue was heavily involved in the tising requirements and charges is Bethlehem director university’s $1.2 billion post-earthquake available on the Law Society website construction programme, and she is in the News and Communications/ Gemma Keystone has looking forward to leading the university LawTalk section. joined Tina McLennan into its next stage, with the assistance of as a director of Kaimai the new Vice Chancellor, Professor Cheryl Law Bethlehem. de la Rey. For the first time in history, the Gemma graduated LLB university will be led by two women. from the University “Sue has always been a trailblazer – 25 Contributing information of Waikato and was years ago she set up the first female law to On the Move admitted to the New firm in Christchurch along with Fiona Brief summaries of information Zealand and Western Australian Bars in Wakefield and has had a very large and about promotions, changes in law 2008. She joined the firm in January 2015 successful practice with many loyal cli- firms, recruitment and retirement after working in law firms in New Zealand ents,” Sarah Manning says. “Sue merged her are published without charge in On and Western Australia. Gemma specialises firm with Simon Mortlock’s firm 13 years the Move (which is also available in family and property law and is a lead ago, and many of the staff at Mortlock online). Please send information as provider in legal aid. McCormack Law have worked with Sue an email or MS Word document (no for over 20 years and I know how much PDFs please) to editor@lawsociety. Sue McCormack she cares about all the people she works org.nz. Submissions should be retires from Mortlock alongside with at Mortlock McCormack three or four sentences without McCormack Law Law. superlatives and may be edited to “Sue’s practice has focused largely on conform to the format used. A jpeg Senior partner Sue McCormack retired commercial, company, property and con- photo may be included – along from Christchurch firm Mortlock struction law and she worked closely with with permission to use the photo. McCormack Law at the end of March. Sue many of her clients as they rebuilt their was elected Chancellor of the University property portfolios after the earthquakes.

Martelli McKegg is pleased to announce four new promotions.

Claire Mansell Loren Gerbich Timothy Orr Emma Foster Senior Associate, Litigation Senior Associate, Trusts Senior Associate, Trusts Associate, Trusts [email protected] [email protected] [email protected] [email protected] Phone: +64 9 379 7333 Fax: +64 9 309 4112 Web: martellimckegg.co.nz Address: Level 20, PwC Tower, 188 Quay Street, Auckland 1010

21 PROFILE · PEOPLE IN THE LAW May 2019 · LAWTALK 928

PEOPLE IN THE LAW PROFILE Tania Sharkey It’s Island Time and the Pacific Lawyers Association

BY TEUILA FUATAI

“My father, a six-foot Irishman, The walls of Tania Sharkey’s was 33 years older than my mother. office are bare. When I was seven-years-old, he got The empty picture hooks and really sick,” she says. stark white palette are noticeably “He had a cerebral tumour and different to the busy reception was in Mercy Hospital. They let him area of Friendship Chambers in come home for a bit and my mum Manukau. looked after him. dark and we would only get paid When I ask about the lack of “When he was there, we managed 50 cents a sack. artwork, save for one out-of-place to record him just before he passed “These are just some of the things painting left over from the previous away. One night he asked me what my Mum did for us to get by. My occupant, Ms Sharkey smiles and I wanted to be when I grew up. I mother made the biggest sacrifice says: “I like it like that. You should remember thinking at the time – this for our family and I would like see my house, it’s the same – noth- better be good. And then, I just said, to pay a huge tribute to her for ing on the walls.” I want to be a lawyer. He chuckled everything she did.” The 39-year-old family law prac- and said: ‘Okay, you do that’.” Being a lawyer offered secure, titioner is one of eight barristers in decent income and a way to exam- the second storey chambers space. Becoming a lawyer ine some of the issues her own Currently, she is in the midst of After her father died, Ms Sharkey’s family had grappled with during her organising the inaugural conference mother worked hard to support upbringing. It was also in keeping for the Pacific Lawyers Association the family. Tania and her two older with what she had told her father. (PLA). Set down for three days, 21-23 brothers took up part-time jobs at She studied law at the University November 2019, the allocated theme age 14 to help out. of Auckland and earned her Masters is ‘It’s Island Time’. “My mother is where I get my in intellectual property and employ- “It’s our first one ever,” Ms hardworking ethic from. As I ment law. While she had plans to Sharkey says. often joke fondly, she had a PhD “make all the dosh” via commercial “We started in 2001, and we’re in cleaning. She cleaned the local work, Ms Sharkey says she discov- finally holding a conference. If that’s bowling club, the local church, at ered family law was what interested not the definition of island time, I Farmers – all to make ends meet. her most during her five-year stint don’t know what is,” she jokes. She took so much pride in her at Keil & Associates. Ms Sharkey, known affection- cleaning and always told us – over “I think it’s interacting with ately as ‘Sharkey’ to friends and and over again – that no matter people. I think there’s a certain level colleagues, was elected PLA pres- what job we had, to always do it of empathy you need if you’re going ident in June 2018. Of Tongan and well. My brothers and I would go to be a pretty good family lawyer. It’s Irish descent, she has worked in along with her in the early hours not just saying ‘I’ve been through South Auckland since 2010 having of the morning before school and what you’ve been through’ – commenced practice in a central late at night to help her. In the because you’d never go that far with Auckland firm after completing her weekends we would go and help clients. But you understand what’s studies in October 2005. Born and Mum pick and pack onions on the going on. And when you work out bred in Auckland, Ms Sharkey’s path farms out in South Auckland – we here, overcrowding is very different to a career in law, particularly family would go before sunrise and come to what overcrowding means on the law, was laid in her early years. back when it was starting to get other side of the Mangere Bridge.”

22 LAWTALK 928 · May 2019

Knowing how Pacific families and communities work is part of that, she says, when families are torn. “The majority of Pacific people intend to get back together. It’s usually not about breaking up the family forever, it’s about having a different outlook. They may have come because there’s domestic vio- lence and Oranga Tamariki have said ‘if you don’t go to court, we’re going ▴ Tania Sharkey and Former Chief Justice Dame Sian Elias at the PLA to take your kids off you’. They want Christmas 2018 party. help to change what’s going on in their family ... and any [court] orders particularly important for Pacific real and achievable career path. have to take into account things like lawyers, Ms Sharkey says. “While we might not start on a lot, Dad seeing the rest of the family at “Often, we don’t have the con- the salaries do become quite gen- church on a Sunday.” nections that other lawyers do – it’s erous, [becoming a lawyer] comes just the way it is. And if you have a with respect and authority.” We Collegial encouragement lawyer who has to look after young must encourage our Pacific youth In 2010, she joined the now defunct siblings after work, they’re not going to get into law, otherwise, discus- Manukau branch of Brookfields to be able to go to the functions to sions within the legal profession Lawyers and became the regional meet the people they should be about diversifying the workforce, representative for the New Zealand meeting. particularly at the top end, do not Law Society’s Family Law Section “In law, that’s how the connec- really mean much, Ms Sharkey says. soon after. tions are made and where doors are The PLA conference’s ‘It’s Island About four years into her time often opened.” Time’ theme acknowledges that. there, it merged into Denham Particularly in Auckland where 17% Bramwell, with two of the partners Changing attitudes of the population are expected to and a few other senior lawyers in the community identify as Pacific in the next 20 heading the new firm. Ms Sharkey A strong network of Pacific lawyers years, moving the legal profession remained as an associate for another is about growing “our numbers” to better resemble those statistics 18 months before stepping out on as much as it is addressing the is important. her own in October 2015. challenges which prevent a lot of “When I think about my family, Reflecting on her progress, Ms younger Pacific lawyers progressing and the struggles we went through, Sharkey attributes a lot of help and to where they want to be in their I don’t think I’d change a thing encouragement from her “buddies” careers, she says. Figures indicate because it made me who I am,” over the years. only about two percent of New she says. “We’ve got an awesome Bar out Zealand’s 14,000 lawyers are of “Saying that, you would never here. It’s different to many other Pacific descent. wish it on another person – some- regions because of the sense of Currently, attracting high school times we didn’t have any food at collegiality.” students to consider studying law all, or I didn’t have the bus fare so She credits her good friend Ophir is a challenge in itself, Ms Sharkey couldn’t get to school. Cassidy, former co-president of Te notes. “For the majority of Pacific people, Hunga Rōia Māori – the Māori Law “Before, it used to be ‘doctor; they’ve had that struggle some- Society, as a major support person. lawyer; accountant’. Those were where. Whether it’s your parents “One day she said to me: ‘I’m the three things your Pacific Island or grandparents, it’s part of you. going to pay for you to go and do parents wanted. But things are My story is no more profound than your Stepping Up course’, which changing, and that’s something I’ve anyone else’s, but that background cost a bloody arm and a leg. ‘I’ll help noticed over time. and understanding of how things you get out on your own and I don’t “Now, you come out of school, pay have gone makes a huge difference want you to pay me back – just pay a few thousand dollars to learn a with clients, and the work I do.” ▪ it forward one day’. And that was it. trade and can start as an electrician “Now we laugh about why I didn’t at $60,000. That’s fine, but we also Teuila Fuatai  teuila.fuatai@ do it sooner.” need to get out into those high gmail.com is an Auckland-based That sense of collegiality is schools and tell kids that law is a freelance journalist.

23 PROFILE · PEOPLE IN THE LAW May 2019 · LAWTALK 928

PEOPLE IN THE LAW PROFILE The Innovators Titus Rahiri, Director at KorumLegal

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

What does legal innovation Technology can play a role in all mean to you? of these types of innovation but it Legal innovation has become a doesn’t define innovation. Having popular phrase in today’s legal said that, there are a growing ecosystem. Clayton Christensen, number of legal tech companies Harvard Business School profes- coming to market globally with sor and author of The Innovator’s suggestions that the legal tech Dilemma, defined it best when he industry is worth more than $16 said: “Innovation is a change in the billion and increasing. Investment process by which an organisation and acquisitions in the legal inno- transforms labour, capital, materi- vation space is heating up as noted als, or information into products or in my August 2018 post on Korum services of greater value.” Forum, “Are we at the tipping point Legal innovation is about truly of the ‘law company’?” activities to non-legal professionals, and even machines. doing things differently. It’s a chang- Furthermore, new skills including legal operations, What pressures are ing of mindsets. It’s offering a new process and project management, tech expertise, and organisations facing in the way of service delivery. It’s using data analytics are required. delivery of legal services? technology as an enabler. It’s being This practice versus delivery distinction goes far absolutely focused on customer cen- A 2016 Deloitte ‘Future Trends for beyond semantics; it is a reconfiguration of the lawyer tricity – creating value in outputs Legal Services’ report surveyed a role and the structural and economic models from which rather than inputs. number of general counsels globally multidisciplinary, tech and process-enabled expertise and asked what they saw as their are provided. At KorumLegal, clients are coming to us What role does technology biggest challenge – doing more with for these exact reasons – they want a more efficient and play in innovation? less came out as the biggest chal- effective delivery model for legal services. Christensen describes three distinct lenge (44%). This was followed by What opportunities has legal types of innovation an organisation rising regulatory compliance pres- innovation brought to you? can engage in: market-creating, sures (26%), the speed of business sustaining and efficiency. Market- (17%) and use of technology (11%). Legal innovation has enabled the founding of creating innovation creates a market KorumLegal. As a former general counsel, I was frus- What developments do where there was not one before. trated by the lack of innovative solutions being provided you see in how legal Sustaining innovation improves by traditional players – and therefore decided to be the services are delivered? existing services and is typically change that I wanted to see. In our early days, we had targeted toward customers that My thoughts align with legal inno- the support of some forward-thinking clients and a legal are demanding better performance. vator and thought leader Mark consultant community who believed in our product and Efficiency innovations enable doing Cohen’s analysis that law has two services. I’ve had the privilege of working with some more with less. Efficiency innova- components – law practice and legal amazing people and companies who continue to pave tions are about streamlining internal services delivery. The latter leverages the way for legal innovation – and an awesome HQ operational processes to improve differentiated legal expertise and team at KorumLegal. We’re shaping the new reality in profitability. shifts many other former practice legal solutions.

24 LAWTALK 928 · May 2019 PEOPLE IN THE LAW · PROFILE

PEOPLE IN THE LAW PROFILE Spreading the TLC What are some of your tips to start innovating or developing BY ANGHARAD an innovative mindset? O’FLYNN Legal services have long been whatever lawyers said they were. Lawyers, not clients, dictated what was required, the timetable for Coming from a family of teach- delivery, and the blank cheque cost ers, Sydney-based lawyer Jessie of their services. Now, legal services Porteus has always had a passion, are whatever buyers need to solve and great respect, for education as business challenges. Put yourself well as an unbridled enthusiasm in the clients’ shoes. And then ask, for the law. how can I do things differently A lawyer with a rare combination and deliver what the client wants of legal experiences and a developed – that’s developing an innovative practice ranging from corporate and mindset. commercial law, to IP, competition and consumer law, immigration, Why is it important for legal dispute resolution and pretty much professionals to continue to everything in between since grad- learn about legal innovation uating in 2011, Jessie is more than and leveraging technology? qualified to provide advice to young If legal professionals and the legal law students. services industry are going to be seri- “The idea behind the name The ous about innovation, the journey Learned Crew – besides being a must begin with the voice of their lawyer pun and TLC for short – is tying her love of teaching into her customer. If your customer wants because it is intended to create a col- studies, working as a law tutor. an easier to use work product, law- laborative crew of law students and “I said yes to every opportunity yers should utilise design-thinking the legal profession,” says Jessie. during my career and am so grateful principles to develop plain-language “TLC is focused on peer learning, to everyone who has given me these tools that empower non-lawyers mentoring, and helping to bridge experiences,” she says. to be a sophisticated consumer of the gap between law school and After finishing university and legal services. This may mean giving legal practice – particularly in this diving into the legal profession your client a flowchart rather than ever-changing legal industry.” in a full-time role, Jessie missed a memo. If your customer wants Jessie’s goal is to build a team her tutoring days and decided to cheaper legal services, the challenge of like-minded, passionate legal establish a teaching blog. for their lawyer is to abandon the professionals, academics and law “When I left law school I missed billable hour and replace it with students, to collaborate and help education and tutoring other law technology-enabled solutions that each other, as well as put together students so much that I started a are still sold at a profitable price. online resources to support young blog to share my study tips with In the end, innovation is about students going through the trials others – but it was more of a re-imagining processes to generate and tribulations of studying the law. therapeutic exercise for me to get value and value is about listening to “I have been lucky to accumulate everything written down, and to clients and focusing lawyers’ efforts a rare combination of legal expe- help other law students so they on clients’ demands rather than the riences during my career, which weren’t struggling or stressed. lawyers’ skills. ▪ has allowed me to create a bit of a “I didn’t mind if no one read it. I ‘one-woman panel’ resumé, and this never marketed the blog, but it got Andrew King  andrew@lawfest. is why I want to share my insight nearly 75,000 hits – which is why I nz is organiser of LawFest, which with others,” says Jessie. thought there was a need out there will be held in Auckland on 18 March Jessie’s first professional expe- to share insights. Fast forward seven 2020. Titus Rahiri will be one of the rience in the law was working in years and I finally pursued this as a speakers at the event  www. public prosecutions in the Newcastle business. I’ve now got a new blog lawfest.nz/ Legal Centre, private law firms and, – thelearnedcrew.com.”

25 PROFILE · PEOPLE IN THE LAW May 2019 · LAWTALK 928

You come from a family most efficient and effective way of getting proof the next generation of lawyers of teachers and still work the most out of your studies. for success in this ever-changing legal as in-house counsel. What “It is trial and error at first, so I recom- industry, for example through mentoring, aspects of both teaching and mend that students start testing different providing work experience and internship legal work do you enjoy most? study methods from first year. My top tips opportunities, and lawyers openly sharing “With teaching, I just love helping others also include creating model answers for their stories and tips with students, which and seeing others succeed and be happy. open book exams, and complementing I think is our duty to do. We all have a part I love talking things through and solving your studies with legal work experience, to play in helping our future lawyers, part- problems together. With teaching you also and practical learning with real life exam- ners, general counsels, barristers, judges learn from others – their experiences and ples – eg, in contract law, actually picking and academics have the skills to not only what makes them tick. up a contract eg, your mobile phone con- survive in law, but thrive.” “With legal work, again I love helping tract or even the Facebook terms of use, With all the serious stuff covered, Jessie others and seeing projects succeed in a and reviewing and amending it. also believes that having fun and passion legal and ethical way, and I love solving “In terms of real world skills, not only for what you do is important. She is pas- problems. I like doing the right thing, so do you have to have sound technical skills, sionate about dancing, and in her blog law scratches that itch. I also like sneaking but lawyers need to be empathetic, com- she encourages students to play to their in some creativity in my work where I can mercial, innovative, technologically-savvy, strengths and their passions. – whether it be coming up with alterna- strategic, creative and of course, plain “If you do that you enjoy what you do tive wording for a marketing campaign to human too. Lawyers must be all of this and generally perform better at your job,” coming up with an interesting or out of and deal with time pressures, juggling says Jessie. the box solution to a legal issue. I love the tasks and ensuring you are adding value “I did the online Clifton strengths assess- buzz when someone says, ‘I never thought to your client.” ment a few years ago when I did a fantastic of that’. I love working with amazingly leadership course which really helped me intelligent people too.” Is there anything you to understand who I was as a person and a think law schools should professional and what I could bring to the How long did it take you to consider including in their table. I encourage all students and lawyers figure out what legal practice courses to help make the to do a strengths assessment test. It was you wanted to work in? transition from student to really eye-opening – you “It is a constant figuring out process I professional a bit easier? see what your strengths think. Jessie applies the ‘variety is the spice of life’ are and how you can play “Saying yes to every opportunity in the attitude and believes that there are some them up, but also warn- past eight years or so meant that I could things that law schools can do to help law ings on overplaying your trial so many different legal areas and students during their studies. strengths. figure out what I liked. I do love variety, “Some law schools, and of course prac- “Playing to your so being in-house really suits me because tical legal training courses, might be doing strengths means you are I can be a jack of all trades. A typical day this already, but in my humble opinion being yourself too, which might include reviewing a sponsorship I’d love to see more variety of careers is important. As [venture contract, a television commercial, trade talked about – especially in-house careers investor, company advisor, marking a new brand name, and so much which is a fast growing segment of the and lawyer] Chris Sacca more. legal profession. We need to stop calling says, ‘be your unapolo- “I really think I have hit the jackpot things “alternative legal careers” – all legal getically weird self … with my current situation, both working careers are viable ones. weirdness is what sets us in-house and pursuing my absolute passion “One thing I do in my training courses apart, gets us hired’. in my business. If it wasn’t for all these is client simulation tasks where there is, “Passions make you experiences, I wouldn’t have the insights for example, a full inbox of urgent emails, happy,” says Jessie. and stories to share with others.” clients turning up to your desk – like a real “With some great work day at work. You have to prioritise tasks being done on happiness What real world skills do you in the right order, learn how to manage in the legal profession at teach young students and expectations and keep your attention to the moment, such as by lawyers to make the most of detail.” the incredible podcaster their studies and work? Are This, along with applying general busi- Clarissa Rayward of The there practical things they ness skills and project management, how Happy Family Lawyer, it should prioritise or learn to apply legal technology and probably, is great to see this being during university that will most importantly, how to manage the embraced. I don’t know benefit them in the long run? inevitable stress levels that accompany how I’m going to throw “In studies, my mantra is ‘study smarter, studying and practising law, are really my passion for dance into not harder’. This means finding the learning important skills to learn. my legal career but I’m styles that best suit you, and finding the “I think we can all do more to future working on it.” ▪

26 LAWTALK 928 · May 2019 LETTERS TO THE EDITOR

LETTERS TO THE EDITOR

Queen’s Counsel lawyers be treated with respect. We queue building security as well as changes made up with clients and others at the counters, to other buildings the ministry occupies. Geoff Adlam’s otherwise excellent article even if we have to rush to get matters dealt The most obvious change for lawyers on Queen’s Counsel in LawTalk 927, April with in the courtrooms. is that they are now being asked to be 2019 contains an error at p73, in his list When will our Law Society stand up for screened. of longest-serving Queen’s Counsel still our rights, and demand the respect our As background, it has been the case since in practice. He states that Alan Galbraith legal profession is due. Lots of nice friendly the introduction of the Court Security Act QC who was appointed in April 1987, is politically correct words to the ministry 1999 that every person who wishes to enter followed in this respect by Nigel Hampton and politicians, and patting each other on a courthouse is required to undergo security QC, appointed in May 1989. This overlooks the back, are not good enough. screening. The Court Security Act, section the fact that my own appointment was in Some of us have been coming to the 13, provides Court Security Officers (CSOs) March 1988 and that I have continued to same court, five days a week for many with the right to ask people to agree to an serve until the present time. years. I was searched twice today, yet I electronic search. Exceptions to this are CS Withnall QC have been coming to the Manukau District outlined in section 24 of the Court Security Court generally five days a week, almost Act, and include judges, judicial officers and Geoff Adlam replies every week of the year since it opened in court registrars/deputy registrars. I have Mr Withnall is, of course, correct and I about 2000, and prior to that daily at the extended that exemption to all MoJ staff. sincerely apologise for this omission. The Otahuhu District Court, since the early 90s. Lawyers are not, and have never been, correct list should read: “New Zealand’s If it is really about security, then court exempt from screening in courthouses. longest-serving Queen’s Counsel still in staff should be searched, just as guards Court Security Officers in our courthouses legal practice is Robert Fisher QC, who was are searched in prison, and also no one have, however, over time, allowed a trusted appointed on 1 August 1985. He is followed should be above the law. Neither the PDS group of individuals (including lawyers) by James Farmer QC (appointed on 8 May nor judges. who they are familiar with to enter our 1986), Alan Galbraith QC (appointed 6 If it is about identifying who is a lawyer courthouses using what could be described April 1987), Colin Withnall QC (appointed or not, the court security know who they as a “lighter touch” screening approach 4 March 1988) and Nigel Hampton QC work with on a daily basis and the Law but that is entirely at their discretion and (appointed 17 May 1989).” Society should issue a photo ID for all dependent on our current risk environ- lawyers. ment. This discretion has been removed Court security and Ted Faleauto Johnston temporarily due to the increase in threat searching of lawyers Barrister, Manukau, Auckland level mentioned above. For additional context, during screening Recently after the Christchurch shooting, The Ministry of Justice was over the last 18 months, we have identified there have been changes to the searching asked if it would like to respond and removed certain items from lawyers of people entering the court. to Mr Johnston’s letter. The around the country that are either weapons Now lawyers must also be searched. following response was received or indeed offensive weapons under Police In no possible logic, can lawyers sud- from the ministry’s Chief definitions. This has included live ammuni- denly become a terrorist risk at court, Operating Officer Carl Crafer tion left in pockets or bags, hunting knives because some lunatic shot a particular Thank you for the opportunity to reply. and the occasional gun inadvertently religious group in Christchurch. Following the tragic events in brought into the courthouse. The Law Society needs to stand up to the Christchurch, the national threat level There has been an initial discussion nonsense from the ministry and politicians which is set by a cluster of government between the Law Society and myself and tell them it is stupid. security agencies was raised to HIGH and regarding ID cards for lawyers and that However, court and ministry staff, remains at that state today [It has since is something that can be looked at more including Public Defence lawyers, do not gone to MEDIUM]. This means that there is fully in the future. get searched. Nor do judges. greater risk that an incident will occur than We are reviewing our security settings We as lawyers are officers of the court, before 15 March 2019. The most obvious regularly and like all New Zealanders look yet are treated now with disdain and response to this assessment is the Police forward to the national threat level being little respect. We do not even have cards being routinely armed. reduced. to enter courtrooms now, whilst many As a result of the national threat level Finally, I would like to thank the many other organisations and staff do. They do being increased to HIGH, the ministry members of the Law Society who have not even have to pass the same ethical reviewed and raised our security setting been accepting of the temporary change rules, nor character checks that we do. It level. This change in security level has to settings due to the difficult environment is time for the Law Society to demand that resulted in a number of changes to court we are in.

27 ARBITRATION LAW · UPDATE

UPDATE ARBITRATION LAW The Arbitration Amendment Act 2019 Further refinement

BY JOHN WALTON

Since the UNCITRAL Model Law was adopted in New Zealand in the Arbitration Act 1996, few amend- ments have been necessary. We have a unified Act, which applies to both domestic and international arbitrations, and it has performed well, free of the complications in Australia, with its potentially competing state legislation (for domestic arbitrations) and a Federal Act (for inter- national arbitration), or more baffling in Fiji, left with its 1908 based Act for domestic disputes and new, Model Law based, legislation for international arbitration. In 2007, we were the first to adopt the 2006 amend- ments to the Model Law (primarily to deal with consumer arbitration agreements, privacy and interim measures and preliminary orders); in 2016, the definition ofarbitral first sponsored by Paul Foster-Bell tribunal was amended to include emergency arbitrators MP and subsequently picked up (removing any argument that an emergency arbitrator’s by Andrew Bayly MP following Mr award of interim measures was not an enforceable award Foster-Bell’s retirement, was drawn as defined in the Act) and a new section 6A was inserted from the ballot and introduced replacing the High Court with “a suitably qualified body” to into Parliament on 9 March 2017. deal with default appointments under article 11 of Schedule With cross-bench support from 1 (AMINZ was nominated to this role in March 2017). both the National government and While this may all look like plain sailing, the reality the Labour opposition, we were is more prosaic. A number of issues have arisen over optimistic that the Bill would pass the years as a result of the development of case law reasonably unmolested. It had its and there was a sense that New Zealand needs to be first reading on 9 May 2017 and was cognisant of developments in other regional centres, referred to the Justice and Electoral notably Singapore and Hong Kong. select committee the next day. A number of amendments were put to the government Despite extensive and largely sup- by AMINZ in 2014 to deal with these issues. Initially, Despite extensive portive submissions on the bill, the the core changes were included in the omnibus courts and largely initial draft report recommended legislation. When that legislation was broken up into supportive the rejection of the bill in its entirety the subsidiary bills, the majority of the amendments submissions on on grounds which were difficult to proposed by AMINZ had evaporated during the select the bill, the initial fathom. After considerable lobbying committee process. As with most legislation, the Institute draft report and independent advice, the select was not given any real opportunity to comment on the recommended committee reconsidered that rec- trimmed down amendment bill. The first we saw of the rejection ommendation, and proposed three the revisions to the bill was when it was returned to of the bill in amendments to the Act: the House. its entirety on • clarification of jurisdictional Not to be daunted, AMINZ promoted a private mem- grounds which challenges; ber’s bill to pick up on the omitted amendments and were difficult to • clarification of the setting aside to deal with the arbitration of trust disputes. That bill, fathom and enforcement provisions in

28 UPDATE · ARBITRATION LAW

the Singaporean case of Astro v Lippo (PT First Media TBK v Astro Nusantara & Ors [2013] SGCA 57). Article 16(2) of Schedule 1 pro- vides that a jurisdictional challenge must be raised before the arbitrator not later than the submission of the statement of defence, and article 16(3) that a challenge to the tribu- nal’s ruling on jurisdiction may be made within 30 days of that ruling to the High Court. In Carr v Gallaway the challenge was not to the arbitrator’s juris- diction, but to the entire arbitral proceedings on the basis of the inva- lidity of the agreement to arbitrate, and in Astro v Lippo the issue was one of how and on what basis the challenge was made. In the former case, the Supreme Court considered severance of the offending right of appeal, and came to the conclusion that the agreement to arbitrate was fatally flawed and beyond any juris- article 34 of Schedule 1; and issues of setting aside or recognition dictional challenge. • removal of the quick draw provi- to be determined, by default, in open In the latter case, the Singapore sion for the appointment of the court. As these touch on matters of Court of Appeal came to an unu- arbitral tribunal. policy, it is hard to disagree with this sual distinction between a passive Two proposals were lost in this approach. position (ie, reserving jurisdictional process. The first that New Zealand The second issue, the validation issues during the arbitration), and should follow the approach in of arbitration provisions in trust an active position in resisting Singapore and Hong Kong that court deeds, was left to be dealt with in enforcement, the latter position proceedings related to arbitration the Trusts Bill also under considera- not being caught by the time limits should, by default, be held in private tion by that committee. That bill has on jurisdictional challenges in the (thereby reversing the existing pre- yet to be referred back to the House. Model Law. Needless to say, the case sumption); and the second in rela- The Arbitration Amendment Bill has suffered widespread criticism tion to the validation of arbitration was considered and passed by the within the arbitration community. clauses in trust deeds. Committee of the Whole House on 3 A new article 16(4) is to be On the issue of confidentiality, a April and will have passed into law inserted into the Act to the effect number of permutations were con- by the time this article is published. that a failure to pursue a challenge sidered, but ultimately the committee to jurisdiction in the High Court favoured the preservation of the status Jurisdictional challenges “in a timely manner” would act as quo in the name of open justice. This The jurisdictional issues have a waiver. This rather leaves three is a matter of policy on which there arisen in two cases where arbitral issues open to question: were diverse views. The end result awards were successfully chal- 1. what happens if no challenge to of this round of amendments is that lenged on jurisdictional grounds jurisdiction is made to the tribu- if the parties are concerned about during enforcement. The first, nal (as in Carr v Gallaway); confidentiality, the first step would Carr v Gallaway Cook Allen [2016] 2. if there is a ruling by the tribunal be either to exclude rights of appeal NZSC 75, turned on the validity of on jurisdiction, but no referral to on questions of law, or to provide for the agreement to arbitrate (on the the High Court (the Astro v Lippo them to be determined by the AMINZ grounds that it provided for appeals scenario); and Arbitral Appeals Tribunal. This leaves on questions of fact); and the second, 3. where the ruling is challenged in

29 ARBITRATION LAW · UPDATE May 2019 · LAWTALK 928

the High Court on time, but not pursued with any of Schedule 2, rather than in Schedule 1, to which the vigour, the applicant reserving its position during the saving applied); the point being that there was nothing arbitral proceedings. wrong with the arbitration as such, the only issue being While the measure of “timely manner” will be open to providing for appeals on questions of fact which are interpretation, there can be little doubt that scenarios prohibited in Schedule 2. 1, 2 and 3 above will be caught by articles 16(2), (3) & (4), While sensible and logical, the difficulty with Justice and the opportunity to challenge the jurisdiction of the Arnold’s reasoning was twofold. The first was that the arbitral tribunal will be lost if a ruling on jurisdiction prohibition against appeals on questions of fact is con- is not sought before the defence is submitted and a tained in clause 5(b)(10) of Schedule 2, and not Schedule challenge to that ruling is not lodged in the High Court 1 as article 34(2)(a)(iv) required; and second, there was on time and actively pursued (though it need not be nothing wrong with either the composition of the done so enthusiastically). tribunal or the procedure followed. The problem was It is fair to say, therefore, that a party cannot remain with the validity of the agreement to arbitrate itself, silent on jurisdictional issues pending the outcome of which is covered explicitly in article 34(2)(a)(i), to which the arbitration, nor can it reserve its position in relation the saving did not apply. Any attempt to appeal on a to jurisdictional issues without actively pursuing them. question of fact would be addressed by the High Court, In both cases, any such challenge will be deemed to and not by the arbitral tribunal. be waived. The simple solution, adopted by the select com- mittee, has been to substitute “this Act” for “this Setting aside and enforcement Schedule” in article 34. At first blush, this addresses A more complex issue arises in relation to setting aside the reservations over Justice Arnold’s minority deci- awards (article 34). sion in Carr v Gallaway, however it does not, strictly, The grounds for setting aside and refusing enforcement address the second difficulty – the failing was not are largely the same, and include incapacity of a party, with the arbitrator’s appointment invalidity of the agreement to arbitrate, a failure in the or the procedure, which is what composition of the tribunal or of the tribunal to follow the saving in article 34(1)(a)(iv) procedure, or, more generally, on public policy grounds. specifically addresses, but with the Article 34(1)(a)(iv) provides that an award may be set possibility of appealing questions aside if: of fact. “The composition of the arbitral tribunal or the So, we are left in the hopefully arbitral procedure was not in accordance with the rare position where there is a defect agreement of the parties, unless such agreement in the agreement to arbitrate which was in conflict with a provision of this Schedule cannot be severed, the parties pro- from which the parties cannot derogate, or, failing ceed with the arbitration without such agreement, was not in accordance with this making any challenge as to juris- Schedule …” diction, and the award is set aside. The saving, where there is a failure to comply with the Fortunately, and perhaps hopefully, agreement as to the composition of the tribunal or the the scenario in Carr v Gallaway is arbitral procedure, applies where the agreement was But having unlikely to be repeated. “in conflict with a provision of this Schedule from proposed, which the parties cannot derogate”. In other words, the promoted and Trusts arbitration agreement contained a procedure which was in breach lobbied for the The Trusts Bill, as currently drafted, of the requirements of Schedule 1 and the tribunal did amendments, it sets out an extensive reform of the not follow that agreed procedure, complying instead is gratifying to law of trusts, including provision with the obligatory requirements of Schedule 1. have the critical for mediation and arbitration in the As originally promulgated, the saving in the Model changes finally proposed clauses 138 to 142. Law referred to “a provision of this Law from which adopted. These While there is no reason that a the parties cannot derogate”. It was logical, therefore, changes keep dispute involving a trust cannot when the Model Law was incorporated into Schedule New Zealand be referred to arbitration (like any 1 of the Act, that “this Law” would be amended to “this up to date with dispute, in terms of section 10 of Schedule”. In his minority judgment in Carr v Gallaway, the shifting the Arbitration Act), two difficulties Justice Arnold sought to apply the saving to the invalidity landscape of arise: of the agreement to arbitrate (covered in clause 5(b)(10) arbitration 4. if the arbitration provisions are

30 LAWTALK 928 · May 2019 UPDATE · ARBITRATION LAW

included in the trust deed, arbitra- shortly thereafter (in the case of the default appointment procedure. tion is therefore imposed on the NSW legislation). Clause 1(4) provides that where trustees and/or beneficiaries by The issue with article 8 was that, there is a failure or default in the the settlor, rather than being an even though there was an agree- appointment procedure “a party agreement between the disputing ment to arbitrate which would may specify the default” and parties; and normally support a stay in terms propose that if the default is not 5. where the award affects the rights of article 8, a resisting party could remedied “a person named in the of unborn or unascertained bene- argue before a court that there communication shall be appointed” ficiaries, or those simply lacking was, in fact, no dispute. The UK to the tribunal. legal capacity, then it will not case law suggested that this was Aside from the unhappy way be enforceable as regards those the flipside of the coin from arguable that this provision sits with article beneficiaries. defence in summary judgment 11, there are two core difficulties The solution to the first issue is to proceedings. It is fair to say that with it. First, the procedure has validate the arbitration provisions, this was an unhappy arrangement, been used in effect as a unilateral and the second is to provide for the and the UK abandoned the saving means of appointing arbitrators appointment of counsel for the class when it enacted its version of the (often with conflicting notices of beneficiaries which are, by defi- Model Law in its Arbitration Act crossing in the post); and second, nition, unable to participate. 1996. “default” does not sit well in the While the drafting of the bill is, In New Zealand, the issue was context of agreement, or at least in places, difficult, the court may, effectively put to bed in the judg- failing to agree; and such default is either on application of a party or ment of the Supreme Court in Zurich hardly capable of rectification short of its own volition enforce an ADR Australian Insurance Ltd v Cognition of simply rolling over and accepting provision in a trust deed or refer a Education Ltd [2014] NZSC 188, in the nominated arbitrator. dispute to an ADR process (in terms which Justice Arnold significantly The case law on the point has been of clause 140); and in relation to read down article 8 in the following as mixed as the drafting is muddled the second point, the court is to terms: (see for example Hitex Plastering Ltd appoint a representative for those “The added words act so as v Santa Barbara Homes Ltd [2002] 3 beneficiaries who cannot participate to filter out cases where the NZLR 695 and the minute of Muir themselves (see clause 139). defendant is obviously simply J in Body Corporate 200012 v Naylor In relation to mediation, any ADR playing for time – the bald Love Construction Ltd CIV-2017-404- settlement must be approved by the assertion of a dispute is not 247, Auckland High Court, 26 April court. enough to justify the granting 2017). It is with some relief that of a stay where it is immedi- clauses 1(4) & (5) are to be repealed, Appointing the ately demonstrable that there doing away with the quick draw arbitral tribunal is, in reality, no dispute.” procedure entirely. When the Arbitration Act was Bearing in mind how limited the As with any legislative change, passed in 1996, two rather curious application of the offending words procuring amendment to the amendments from overseas were in article 8 have become following Act has proven to be long and, at included in the legislation. The first, the Supreme Court’s decision, no times frustrating. But having pro- from the UK, was a qualification further amendment was considered posed, promoted and lobbied for to the stay provisions in article necessary. the amendments, it is gratifying 8(1) where there is not in fact any Concerns about the “quick draw” to have the critical changes finally dispute between the parties; and the procedure in clause 1 of Schedule 2 adopted. These changes keep New second, from the NSW Commercial have been not so easily put to bed. Zealand up to date with the shifting Arbitration Act 1984, providing In the ordinary course, where the landscape of arbitration, and they the quick draw procedure for the parties are unable to agree on an also maintain New Zealand as a appointment of the arbitral tribu- arbitral tribunal, the appointment good place to arbitrate. ▪ nal where there was a default in the would be made by AMINZ in terms power of appointment. Curiously, of article 11 of Schedule 1. That John Walton  john@johnwalton. in both cases the provisions were provision, however, is subject to co.nz is an arbitrator, construction dropped from the UK and NSW agreement. Schedule 2 (which sets adjudicator and commercial medi- legislation in the year our Act was out the implied provisions) includes ator practising out of Bankside passed (in the case of the UK) and in clause 1 deemed agreement to a Chambers in Auckland.

31 COMMERCIAL LAW · UPDATE May 2019 · LAWTALK 928

UPDATE COMMERCIAL LAW Competition law issues beneath the surface with mergers

BY JOHN LAND

in the agreement was in breach of s 27. The Commission Two recent court decisions show that mergers alleged that the restraint of trade was a provision of an raise competition law risks well beyond the obvious agreement that had the purpose, effect or likely effect risks arising from the merger itself being considered of substantially lessening competition in the relevant to substantially lessen competition. market. The restraint of trade restricted GasNet from Section 47 of the Commerce Act 1986 prohibits a re-entering the Bay of Plenty market for five years. merger that substantially lessens competition in a The suggestion that this restraint of trade provision market. However, additional serious competition law breached s 27 is arguably controversial. When you buy issues can arise in relation to mergers (or attempted a business it is usually accepted that you can impose a mergers) regardless of whether a proposed merger itself restraint of trade on the vendor to protect the goodwill would substantially lessen competition. you are taking over. Section 44(1)(d) contains an excep- The first case (Commerce Commission v First Gas Ltd tion from s 27 for exactly this. [2019] NZHC 231) involved the giving by a vendor of an Section 44(1)(d) says that nothing in Part 2 of the overly wide restraint of trade provision in support of Commerce Act applies to “the entering into of a contract the sale of a business. for, or the giving or requiring the giving of a covenant in The second case ACCC( v Cryosite Ltd [2019] FCA 116) connection with, the sale of a business… in so far as it involved the agreement by a vendor to refer new sales contains a provision that is solely for the protection of enquiries to the purchaser in advance of completion of the purchaser in respect of the goodwill of the business”. a proposed merger. But Justice Mallon said this exception does not apply Both cases involved the imposition of million dollar if the restraint of trade goes further than is necessary. penalties by the courts. The cases are, however, merely The judge’s analysis on this point is one sentence only: two examples of the potential second layer of competi- “The issue here was that the restraint of trade went tion law issues that attend merger negotiations. Some further than was necessary for this purpose because it further examples are provided at the end of this article. purported to prevent GasNet from entering anywhere in the Bay of Plenty (not just the area serviced by the Overly wide restraint of trade Papamoa delivery point) and for a period of five years.” provisions in support of a merger (para [49(b)]). The First Gas case was the subject of a judgment by Mallon J on 21 February 2019. The case concerned First Exception limits Gas’s acquisition of GasNet’s gas distribution network It would seem then that the exception in s 44(1)(d) has its in Papamoa, a suburb of Tauranga. limits. A restraint of trade said to be for the protection of The case involved two issues. the purchaser in respect of the goodwill of the business First, that the merger itself was a breach of s 47 as it may not be protected by s 44(1)(d) if it is wider than is had the effect of substantially lessening competition in a really necessary to protect that goodwill. market for the construction of gas distribution networks It is implicit that the judge thought s 44(1)(d) did not in new subdivisions in the Bay of Plenty. I won’t discuss apply due to the restraint being wider than necessary that part of the case. both in respect of its geographic scope and its duration. The second issue in the case concerned a Commerce Here the business that was being sold related to a gas Commission allegation that a restraint of trade clause distribution network in Papamoa. The restraint of trade,

32 LAWTALK 928 · May 2019 UPDATE · COMMERCIAL LAW

however, applied not just to Papamoa but of the potential risks of an overly broad Accordingly, even if the merger had gone to all of Bay of Plenty. definition of a restraint of trade clause in ahead and didn’t have any competition law The duration of the restraint of trade (five a sale and purchase agreement. issues (under the Australian equivalent of s 47 years) was also mentioned by the judge. of the Commerce Act) the parties breached Presumably, this was on the basis that the Gun-jumping: Referring Australian cartel prohibitions in relation judge considered that this period of restraint customers to the purchaser to the period up until the sale took place. was longer than required to protect the before completion of a merger A penalty of just over AU$1 million was purchaser’s goodwill in the business being The Australian Cryosite case was the subject imposed. But for the poor financial position purchased. The judgment does not suggest, of a judgment of Beach J in the Australian of the defendant the penalty would likely however, what duration of restraint would Federal Court on 13 February 2019. The case have been more (the judge allowed the pen- be acceptable on the facts for the restraint concerned an attempted sale by Cryosite of alty imposed to be paid off in instalments to be protected by s 44(1)(d). its business (which involved the banking over a 10-year period). This reasonableness limitation on the of umbilical cord blood and stem cells) to exception in s 44(1)(d) is a point of real its only competitor Cell Care. Unimpeachable practical importance to commercial law- The proposed sale agreement fell over The Australian court’s reasoning in Cryosite yers. It will necessitate a more considered but Cryosite retained a AU$500,000 non-re- seems unimpeachable. approach to the drafting of restraint of fundable deposit under the sale agreement. Further, the same outcome would apply trade provisions in business sale and Importantly, the sale agreement pro- under New Zealand’s new cartel laws (passed purchase agreements. vided that prior to completion of the sale in August 2017). The relevant provision was It will be necessary to ensure that the and purchase Cryosite would refer all new contained in an agreement between Cryosite kind of business restrained, the geographic customer enquiries to Cell Care. and Cell Care and provided for Cryosite scope of the restraint and time period of the The case has been colloquially termed not to supply services to certain customers restraint do not go further than is required “gun jumping”. Effectively a transfer of (new blood bank customers) being services to protect the goodwill of the particular part of the business to the purchaser had which (but for the agreement) Cryosite and business to be sold. Failing that, the First occurred before settlement of the sale Cell Care were in competition for. Gas case would suggest the parties will and purchase (and certainly before the That would amount to a cartel provision potentially be liable for significant penal- competition regulator had assessed the under s 30A of our Commerce Act as a pro- ties for breach of s 27 of the Commerce Act. transaction). vision restricting output in s 30A(3) or a The overall penalty imposed in the First The court accepted that this was tech- provision allocating markets in s 30A(4). Gas case was $3.4 million. This was calcu- nically cartel conduct. The parties were in In terms of s 30A(3), the provision lated on the basis of $3.5 to $3.8 million competition with each other and Cryosite limited the supply by Cryosite of services for the breach of s 47, an uplift of $800,000 was agreeing not to supply services to new that Cryosite and Cell Care supplied in to $1.1 million for the breach of s 27 due to customers in competition with Cell Care. competition with each other. the restraint of trade and then applying a Further, the agreement was effectively In terms of s 30A(4), the provision discount of 25% for cooperation and early a form of market sharing as the parties allocated the classes of persons to whom admission of breach by First Gas. were agreeing that before settlement of Cryosite and Cell Care supplied services in The uplift in penalty imposed in relation the business purchase Cryosite would only competition with each other by specifying to the breach of s 27 then was in the region service existing customers and that all new that any new customers would be supplied of $1 million. That gives some indication customers would be referred to Cell Care. by Cell Care.

33 CONTRACT LAW · UPDATE May 2019 · LAWTALK 928

Therefore, if the facts inCryosite had occurred in New Zealand today, a similar result would be expected. The UPDATE court would likely find that there was a breach of the CONTRACT LAW cartel prohibition in the Commerce Act and impose a significant pecuniary penalty. Further, with the passing in April 2019 of the Commerce (Criminalisation of Cartels) Amendment An ‘earn-out’ Bill, such conduct will likely in the future amount to a criminal offence (although the provisions for criminal- isation will not come into effect for two years). tale revisited Conclusion The First Gas and Cryosite cases show that a merger BY JOHN HORNER can raise more competition law issues than just the application of s 47. Let’s say that your client (company A) is looking to buy out a competitor (company B). The fact that a merger As a sequel to the article entitled “A tale of two of competing business might raise issues under s 47 is earn-outs” (LawTalk 922, October 2018, page 22) this arti- obvious. If necessary, the risk in relation to s 47 might cle considers The Malthouse Ltd v Rangatira Ltd [2018] be addressed through an application to the Commerce NZCA 621 in which the Court of Appeal overturned the Commission for clearance or authorisation. High Court ruling ([2018] NZHC 816). However, the sale and purchase agreement between Although the High Court was prepared to consider A and B, or the negotiation of that agreement, might “commercial common sense” to assist in correcting an also raise other competition law issues. For example, apparent drafting oversight, the Court of Appeal insisted additional competition law issues might arise if: on applying the disputed clause as written. The relevant 1. there is an exchange of competitively sensitive infor- aspects of the disputed clause read: “If … [an exit event] mation in anticipation of the proposed merger (an … occurs … then the [additional amount] shall become example of which has been the subject of prior crit- immediately due and payable.” icism by the Commerce Commission in Investigation Rangatira argued that the exit event was required to Report on Premerger Coordination between Sonic occur within a certain time period, referred to elsewhere Healthcare and NZ Diagnostic Group, June 2008); in the agreement as “prior to the Contingent Sunset 2. there is a proposed moratorium on competition Date”. Those words were not included in, or otherwise between vendor and purchaser in anticipation of the incorporated into, the disputed clause. Churchman J merger (as occurred in Commerce Commission v New in the High Court found the most sensible commercial Zealand Diagnostic Group Ltd [2010] NZHC 1226 result- interpretation was that the parties intended the temporal ing in the imposition of penalties on New Zealand limitation to apply even though the disputed clause Diagnostic Group and Pathology Associates Ltd); did not include it. 3. there is an agreement by the vendor to refer new cus- Miller J, in his reasons for a unanimous judgment of tomer enquiries to the purchaser (as in Cryosite) or to the Court of Appeal, summarised the current law on exit certain businesses having regard to the proposed contractual interpretation in New Zealand. In doing so he merger (as alleged by the ACCC in a case brought in noted that where there is a natural and ordinary meaning July 2018 against Aurizon and Pacific National); or to the term in issue, departing from it for reasons of 4. the agreement contains a restraint of trade clause commercial common sense should only occur “in the under which the vendor agrees not to compete with most obvious and extreme cases”. the purchaser after completion of the merger (as in From this, the key issue for the Court of Appeal to First Gas). determine was if the absence of any reference to the Such examples reinforce the importance of considering Contingent Sunset Date in the disputed clause was so the potential wider application of competition law in obvious and extreme that it justified a “commercial relation to mergers and business sale agreements. interpretation” (as opposed to a literal interpretation). Importantly, the imposition in First Gas and Cryosite of If the answer to that question was positive, the court very substantial penalties for anti-competitive conduct would then need to determine what the commercial associated with a proposed merger (rather than just interpretation should be. because of the merger itself) is a firm reminder of the The Contingent Sunset Date was a defined term in risks involved. ▪ the agreement and used for the purpose of determining if the additional amount (the earn-out payment) was John Land is a senior competition law specialist and payable or not having regard to the financial performance commercial litigator at Bankside Chambers in Auckland. of the business. The disputed clause was a secondary Formerly a partner of Kensington Swan for 20 years, he provision concerning payment of the additional amount can be contacted on 09 379 1513 or at  john.land@ in the event that the business was sold, or similar. In bankside.co.nz that clause the Contingent Sunset Date was not used.

34 LAWTALK 928 · May 2019 UPDATE · CONTRACT LAW

circumstances. The objective is to address all rea- sonably likely scenarios, including any future sale or disposal of the business. There is an inevitable conflict of interest between the investor or purchaser’s interest in operating and owning (or on selling) the business they have invested in or purchased, and the ongoing inter- est of the founding shareholders or vendor in the earn-out payment. In the author’s experience a pro- vision that requires the investor or purchaser to pay an earn-out amount beyond the agreed earn- out period is highly unusual. In this judgment, the Court of Appeal has put the onus squarely on the parties and their lawyers to get the drafting right to give effect to what is intended. It is clear that the willingness of courts to look beyond the words of the contract has its limits, regardless of how unusual the outcome might be. ▪

the purpose of the disputed clause John Horner  johnhorner@ Relevance of was to establish an agreed value quiggpartners.com is a partner drafting note at a particular date and not at an at Quigg Partners, specialising in In engaging in the interpretation indefinite time in the future. As a mergers and acquisitions. He was exercise, both courts considered consequence, the earn-out amount assisted in writing this article by the relevance of a drafting note was held to be payable by Rangatira Julia Marshall-Mead. made alongside the disputed no matter when in the future the clause by a lawyer in the course exit event occurred, dismissing of negotiations. The drafting note any concern about an open-ended read “not anticipated but inserted contractual obligation. for completeness”. Finally, the Court of Appeal The High Court found that it swiftly rejected the argument that was the likelihood of a sale of the the temporal limitation should be an HAYS LEGAL business in the short term that was implied term. This conclusion was PARTNER WITH ‘not anticipated’ whereas the Court reached through consideration of THE EXPERTS of Appeal found the “obvious expla- the impact on the balance of the At Hays Legal we understand that the effectiveness of a legal department nation” was that the drafter of the bargain struck. The natural meaning depends upon its people. We help jobseekers achieve their full potential note considered the primary trigger of the disputed clause required no by bringing them together with the of the earn-out would be satisfied additional interpretive machinery right job. We are passionate about the legal profession and the careers of the and so the secondary trigger would and any implied term was far from people within it. not be relevant. being so obvious as to go without With offices across New Zealand, In the author’s view this finding is saying. we combine local knowledge with both unnecessary and speculative. a national perspective. This means Drafting earn-out clauses you receive an expert local service It would have sufficed to say that and have access to a nationwide pool the drafting note simply did not add As any transactional lawyer can of talent and opportunities. clarity or meaning to how the dis- attest, drafting earn-out clauses puted clause should be interpreted requires a level of foresight about To find your local office, visit and so little or no evidential weight what eventualities may or may hays.net.nz should be given to it. not affect the future payment obli- The Court of Appeal also disagreed gations of a purchaser or investor, hays.net.nz with the High Court’s finding that having regard to the relevant

35 DISIBILITY LAW · UPDATE May 2019 · LAWTALK 928

UPDATE DISABILITY LAW Better justice for people with disabilities

BY LYNDA HAGEN

interact, nor how human issues and system issues could Throughout its existence, the Law Foundation interact,” Warren says. has supported projects that have demonstrably improved The output will be a toolkit of mechanisms for making access to justice for disadvantaged social groups. New Zealand accessible, possibly including draft legis- We have recently approved grants for two further lation or regulation. projects that I am confident will improve the lives of “We have no predetermined view, but we need to be people with disabilities, a group especially deserving effective and efficient. A massive new bureaucracy is of support. probably not the right answer,” Michael says. “This is a once in a lifetime opportunity to develop an A new accessibility system enduring framework specific to New Zealand’s needs, New Zealand must provide access rights for people with which will benefit all New Zealanders and improve the disabilities – for example, some buildings must have realisation of their rights.” suitable access, parking and sanitary facilities. But there are gaps in our law, and questions: to what Arbitrary detention extent should buildings be retro-fitted for disabled Wellington human rights lawyer Tony Ellis is on a six- access? What design standards should be applied for month Harvard University fellowship studying the arbi- new building projects? Where should we draw the line trary detention of people with intellectual disabilities. between individual requirements and accessibility for all? He says that the intellectually disabled are among the Warren Forster and Michael White most deserving classes of people needing competent are leading a team of researchers human rights advocacy. reviewing New Zealand’s accessibil- “My work to date has shown that such detention is ity law and practice, with the aim of frequently imposed on a discriminatory basis – detain- proposing a new framework. Warren ing those who are disabled primarily because of their says no one has ever taken a full sys- disability if perceived to be dangerous, in contrast to tem-wide look at how accessibility other groups who are similarly dangerous, but who are should be enabled for all purposes. not detained as they have no disabilities,” he says. “The Government wants an acces- Tony has worked on several leading cases in this sibility law, and the Accessibility field, including one involving a man with severe autism Alliance also wants it. Everyone can and intellectual disability who has been detained in agree that New Zealand should be compulsory care for more than 12 years despite having accessible, but no one has a plan for Everyone committed relatively minor offences. He is currently pur- how the law should work to bring can agree suing the case through appeals, arguing that it involves it from an idea into peoples’ lives,” that New discrimination, unfair trial and arbitrary detention. he says. Zealand Tony’s research will improve understanding of the The project builds on work done should be detention of the intellectually disabled in numerous by the Blind Foundation over accessible, countries, along with the views of the UN Human Rights the past two years. It will take a but no one Committee, the Committee on the Rights of Persons first-principles look at where the has a plan with Disabilities, and the European Court of Human system works now, where the gaps for how the Rights. In addition to his research report, he intends are, and how the interested parties law should to pass this knowledge on to students, practitioners can best collaborate. work to and judges through a seminar and, possibly, a short “I don’t think anyone has well-de- bring it from university course. ▪ veloped answers about what acces- an idea into sibility means, nor a plan about how peoples’ Lynda Hagen  [email protected] is human rights and property rights lives Executive Director of the New Zealand Law Foundation.

36 LAWTALK 928 · May 2019 UPDATE · FRANCHISING LAW

UPDATE FRANCHISING LAW Update on restraint of trade clauses in franchising

BY DEIRDRE WATSON the party seeking to enforce the provision as an important part of protecting their establishes that the restriction is reasonable, legitimate interests. This approach reflects it may be enforced. The party attempting the following comments of Hammond J in to enforce the restraint must show: Dymocks Franchise Systems (NSW) Pty Ltd Restraint of trade clauses are a 1. that there is a protectable (otherwise v Bilgola Enterprises Ltd (1989) 8 TCLR 612: common commercial tool by which known as a proprietary or legitimate) “[274] … it was said franchisees “do franchisors protect their brand, goodwill interest justifying the restraint; and not fit particularly snuggly into the and system, following the termination 2. that the restraint goes no wider than is master and servant situation or of the franchise agreement. If franchises reasonably necessary to protect that inter- vendor and purchaser covenants… But did not have the control of a restraint of est – see Brown v Brown [1980] 1 NZLR 484 they are… More akin to the goodwill trade clause, ex-franchisees could readily (CA); Richmastery v Richmastery (Central) cases than to the servant cases” (p take and use all know-how and goodwill Ltd High Court, Lang J, CIV-2005-470-951 119). Indeed, it is in this context that gleaned from the operation of the franchise (24 May 2006). the conveyancing analogy has often business to set up new and competing In an earlier article published in LawTalk been raised – that a restriction on com- businesses, post termination. Where the 913, December 2017, pages 21-22 (“Enforcing petition is appropriate having regard franchisee holds the lease of a premis- restraint of trade clauses in franchise agree- to the “re-transfer” of goodwill that es-based franchise in their own name, this ments”), I discussed the robust approach takes place on the termination of the can be seamlessly done simply by pulling taken by the courts in support of the franchise agreement. down signs and rebranding. enforcement of restraint of trade clauses “[275] However the matter is viewed As is well known, contractual provisions in franchising. That approach is much in judicial terms, I have no difficulty imposing a restraint of trade are, prima facie, welcomed by franchisors who, without in holding that a franchisor in a case void and unenforceable. However, where a doubt, regard restraint of trade clauses such as this has a protectable interest.

37 The franchisee is assisted in would collapse.” franchisee advised the franchisor the start up and running of a In my earlier article, I suggested that there was perhaps on 7 January 2019 that instead, he business: it borrows expertise a “grey area zone” of franchise scenarios (BB Australia intended to continue to trade as and support systems of all Pty Ltd v Karioi Pty Ltd [2010] NSWCA 347; MEDIchair LP an independent butcher. He had, kinds. To put it shortly, if the v DME Medequip Inc 2016 ONCA 168) whereby it should by then, already arranged with the franchisor could not protect its not be readily assumed that a legitimate interest exists, landlord to stay in the premises on interests after termination, the in particular, in the weaker or dying systems where for a monthly tenancy after the lease franchising industry generally example: expired (also on 4 January 2019). • the “business model” and “support systems” have Presumably, the lease was held not been updated and (objectively speaking) are of in the name of the franchisee or a no value or assistance; related entity and not the franchisor • the system is dying because the consumer fad has as does commonly occur with retail- passed (for example, the Yogurt franchises); based franchises. • growth is receding and exiting franchisees are not After the franchisee commenced being replaced; trading as an independent butcher, • the system simply never attracted a good number of proceedings were filed seeking an franchisees in the first place; interim injunction to restrain the • the system is one where the franchisee had an existing franchisee from trading. business of the type being operated by the franchisee The franchisee argued that he was prior to becoming a franchisee. not in breach of the restraint of trade clause because there was no other The partners at Young Hunter Mad Butcher Holdings Ltd are pleased to welcome Daniel Mad Butcher franchise store in the Weatherley to the partnership from v Standard 730 Ltd Whangārei area or anywhere north 1 April 2019. The question of enforceability of restraint of trade clauses of Albany, for that matter, and that Daniel specialises in civil litigation has once again come before the High Court in the recent the franchisee was therefore not in and insurance law and has suc- decision of Mad Butcher Holdings Ltd v Standard 730 Ltd competition with the franchisor. He cessfully appeared at all levels of the New Zealand Court system. [2019] NZHC 589. further said that the franchisor had The franchisee had been a long-standing franchisee no intention, and no reasonable pros- Level 2, 134 Victoria Street, of the Mad Butcher franchise system, having begun his pect, of establishing another Mad Christchurch 8013 involvement in 1987 in Whangārei. Butcher franchise in Whangārei. He   03 379 3880 03 379 3632 His agreement came to an end on 4 January 2019. argued that there was no legitimate  [email protected]  www.younghunter.co.nz Having initially indicated to the franchisor that he interest to protect in the Whangārei intended to set up a butchers training school, the area.

38 UPDATE · FRANCHISING LAW

J accepted that such a proposition was arguable. Gault J concluded that his initial impression, based on the lack of particularity in evidence so far, was that the franchisee would have an uphill battle establish- ing breaches by the franchisor sufficient to release the franchisee from performing ongoing obligations in the franchise agreement, adding “whether they will be able to do so at trial is another matter”. His Honour went on to determine the balance of convenience lay in favour of the franchisor, finding that damages would not necessarily be an adequate remedy for the plaintiff: “As Holland J said in Linde Aktiengesellschaft v C W F Hamilton & Co Ltd [1988] NZHC 532; (1988) 3 TCLR 216 (HC) at 222, in normal events a party to a contract with a valid restraint of trade clause is entitled to have the clause enforced and damages would not often be regarded as an adequate remedy for the loss of the plaintiff ’s contractual rights.” Gault J also accepted that the franchisor’s lost oppor- tunity to re-establish a franchise would be difficult to quantify, noting that damage to goodwill in franchise cases, and intellectual property cases generally, is often difficult to measure. Conversely, the franchisor argued that the plain mean- ing of the restraint of trade clause was that it applied Conclusion whether or not there was an existing Mad Butcher Unfortunately, the decision does not record any of franchise in the designated area. It further argued that the detail of the franchisee’s dissatisfaction with the it did want to re-establish in the area but that it could system or any other issues relating to the Mad Butcher not do so while the defendant was trading. franchise generally which might have been expressed by the franchisee. It is unknown to what extent at trial The decision this aspect will be developed and whether or not the Gault J found there was a strong argument that the franchisee will be able to prove that there was a breach plain meaning of the restraint of trade clause was that it by the franchisor of an implied or express term which applied whether or not there is an existing Mad Butcher met the tests for cancellation of the franchise agreement franchise store in the designated area. under the Contract and Commercial Law Act 2017. Gault J acknowledged there was some force in the Leaving aside the facts of the Mad Butcher case, there franchisee’s alternative argument that the restraint could must, at least, still be room for an argument that in a be unreasonable if the franchisor had no intention of failing or fad franchise system, the franchisor is not pro- competing for continuing business in the region, how- viding the requisite system, and thus there are grounds ever he noted that the restraint was to be scrutinised for termination. It is also difficult to understand how a as at the date of the agreement, not according to sub- franchisor with no intention whatsoever to re-establish sequent events. itself in a territory post-termination could be said to As an aside, if restraints could not be scrutinised as have a legitimate interest in that territory. at the date of subsequent events it would mean, in the The decision will be well welcomed by franchisors in case of the failed “fad systems” or “flash in the pan large established systems (like the Mad Butcher) where systems” which spring up like mushrooms and are then there is always a risk that a disgruntled franchisee will gone within a few years, that this would produce the look to launch off on their own business venture on curious result that the franchisees in those systems termination of the franchise. It will probably also bring would be prevented from competing when there was more clarity and certainty to this area so that practition- no franchisor left to compete with at all. ers are aware of the risks when advising clients about His Honour also dealt with the issue of whether, if their restraint of trade obligations. ▪ the franchisee was able to establish a breach by the franchisor that would have justified cancellation of Deirdre Watson  [email protected] is a the franchise agreement, the franchisee would not be barrister and mediator specialising in franchising dis- bound to perform the ongoing restraint. In Health Club putes. She is Vice-Chair of the Franchise Association Brands Ltd v Colven [2013] NZHC 428 at [32] Winkelmann of New Zealand.

39 FRANCHISING LAW · UPDATE May 2019 · LAWTALK 928

UPDATE FRANCHISING LAW The impact of risk and compliance on cross border sales and franchising agreements

BY STEWART GERMANN perceived to bring big rewards, the brand name has suf- fered and has cost the company significant amounts of money. There are many factors to be taken into account The impact of risk and compliance to which include the following: a franchisor looking to expand and sell • Cultural: name of franchise. their brand/franchise overseas is seen in • Translation issues: translations of agreements must two ways: be rendered by lawyers knowledgeable in the local law. 1. A franchisor looking to expand into a • Consumer preferences: do you need to vary your foreign territory must conduct signifi- system to address local preferences? For example, cant and thorough risk and compliance McDonald’s offers menu items specific to the country. assessments. A franchisor cannot import • Sourcing: availability of products, fixtures and the system they have into another coun- equipment.it is not just about suppliers it is about try without looking at the following: the franchisors ability to protect the look and feel of • Assess your system and be clear on the franchised business and the instant recognition what it is and what it is offering. of the brands. • Researching the country and its laws. • Products: logistical issues. It is essential to ensure Do not pick a country and then try to that the quality and availability of products is assured. force the system through – ie, pushing McDonald’s suffered brand damage in China when a square peg through a round hole. their meat supplier sold expired meat. Be careful about employment laws, • Measurement: you must adapt everything including privacy laws etc and local cultures. unit measurement. • Decide on the structure of the rela- • Legal issues: sanctions laws/anti bribery laws (car- tionship – eg, area developer/master tels in New Zealand), dispute resolution, intellectual franchisor/joint venture. property issues. • Do you need to adapt your system • Knowledge/application of territorial preferences: including suppliers (look at the reci- for example, ethnic and political make up. If it is pes, the brand, the methods, the whole important to observe the ethnic and cultural make system). up it may be better to have the local person be the • Check if the franchise agreement face of the brand. needs to be adapted for the target When a company. franchisor is Due diligence of business considerations • Be realistic about the costs involved looking to A franchisor may typically leave some business due dil- – it will not be cheap. embark on igence to its local partner, relying on the local partner’s • Engage expert counsel in the target cross border knowledge of the market and its industry expertise. If country. sales and a franchise arrangement covers multiple jurisdictions, A consequence of risk and compliance franchising the due diligence conducted should cover each target is that the franchisor will need to agreements, market. The initial business due diligence on any new adapt the franchise system (including there will be target market should, at a minimum, include the inquir- products and the name itself) in order considerable ies detailed below: to be successful in the other country. impact in 2. If a franchisor does not conduct the due relation to Composition of product or offering of service diligence and assess the impact of risk the risk and Does the product sold require modification to make it and compliance on their system and compliance to locally compliant or culturally acceptable? For example, expanded too quickly into a country that franchisor. some jurisdictions regulate whether a product can be

40 labelled and sold as a particular type of unrest or terrorism. It is also valuable for franchisor should investigate the typical food (ie, halal or kosher). Such required a franchisor to consider the reputational duration of trademark registration in the or desired adaptations may also affect a harm or social backlash it may face in its target market, particularly if registration franchise’s services as opposed to products. home country should it decide to expand is required prior to the offer or sale of the A franchise may need to inquire whether into an unpopular country. franchise. locally prescribed business hours or reli- gious holidays or practices could impact Payments Disclosure or registration the proposed operations of the franchised Will local exchange control regulations The franchisor should know whether any business. and/or tax laws restrict the repatriation local laws require disclosures before sign- of profits to the franchisor’s home juris- ing a letter of intent or before accepting Suitability of offering diction? Must payments be made in local any payment from a prospective local How suitable is the product or service for currency of the target market? partner and whether disclosure is required the target market? Does the name of the before the franchise is advertised or before brand translate poorly or is the product Due diligence on legal matters representatives of the franchisor speak to culturally insensitive or unpopular? How A franchisor must also conduct legal due or meet with a prospective local partner have competing brands in the marketplace diligence on the potential impact that candidate. A franchisor should also know performed? Is there adequate infrastruc- local laws may have on the expansion of whether local franchise laws require a reg- ture to support the franchisor’s business the franchise system to the target market. ulatory filing or approval before a franchise operations? Is there a demand for the Often these issues are vetted with local agreement can be offered or executed or product or service in the target market? counsel, who is familiar with the analy- upon its execution. sis needed to address the typical matters Import and local costs presented and is able to make the changes Mandatory provisions Will certain supplies or products used or necessary to the franchisor’s franchise Jurisdictions that have franchise laws sold in the franchise need to be imported agreement. Initial legal issues that should often require that certain provisions be into the target market? Are there tariffs be investigated include the following: included in franchise agreements. Some or other local taxes imposed? For those of these provisions impact the fundamen- franchises that rely heavily on local supply Legality tal elements of the franchise offering, for chains, are affordable suppliers available? Is it legal to sell the goods or services in example the term of agreement, a manda- Moreover, are there rebates to local or off- the target market? tory “cooling-off ” period, a requirement shore suppliers? Employment of workers, that the agreement be written in the local licences and permits, real estate costs and/or Trademarks language to be enforceable, or mandatory the cost of goods in the target market may The franchisor must inquire whether the governance by local law. lead to significantly higher cost of sales. system’s principal trademarks are regis- tered or are available for registration. The Franchise structure Political and social risks franchisor must also inquire whether the The franchisor should analyse whether A franchisor will need to analyse whether franchisor’s trademark must be registered the structure of the franchise violates the target market presents significant risks, before it is licensed to a third-party to avoid any local laws, such as those related to such as political threats or the threat of civil violating local law in the target market. A pyramid selling.

41 FRANCHISING LAW · UPDATE May 2019 · LAWTALK 928

Draft clauses and comments

Governing law Social media

In a US agreement the Governing Law clause might read In New Zealand the Social Media clause might read as as follows: follows:

3.1 Governing Law. This Agreement shall be governed The Franchisee acknowledges that in relation to the by the laws of New York and shall be subject to Business and the Franchisor’s Intellectual Property it will the jurisdiction of the New York Courts. act with care when using any social media and it shall 3.2 Waiver. always do its utmost to look after the best interests of • General. Waiver of any default or breach of this the Franchisor and anything to be published, circulated, Agreement shall not be interpreted as a waiver transmitted or disseminated in any way by or through of any subsequent default or breach. social media shall be subject to the Franchisor’s prior • Punitive Damages. Except for Area Developer’s written approval. obligation to indemnify [Subway] for third party claims under Section X.1, and except for punitive In some international franchise agreements which I have damages available to either party under the United seen, the website and social media clause might read States Trademark Act of 1946 (Lanham Act, 15 as follows: U.S.C., Sections 1051 et seq.), [Subway] and Area Developer (and Area Developer’s owners) waive The Website and Social Media Pages to the fullest extent permitted by law any right (a) The franchise system will be listed on our global to or claim for any punitive, exemplary or conse- website (“Website”). You will not have editorial quential damages against the other and agree access to the Website, but if you require changes that in the event of a dispute between [Subway] and updates you must notify us in writing and we and Area Developer, the party making a claim will will implement such changes as soon as is reasona- be limited to equitable relief and recovery of any bly practicable, subject to our prior approval, not to actual damages it sustains. be unreasonably withheld or delayed. You will not • Jury Trial. [Subway] and Area Developer irrevocably advertise and promote via any other website fea- waive trial by jury in any action, proceeding, or turing the Marks without our prior written consent. counterclaim, whether at law or in equity, brought (b) You shall not advertise and promote your business by either of [Subway] or Area Developer. via pages featuring the Marks on third party social media platforms (“Social Media Pages”) without our In New Zealand the Governing Law clause could read prior written consent. The franchise system will be as follows: featured on our branded Social Media Pages. You will not have editorial access to our Social Media This Agreement shall be governed by the laws of New Pages, but if you require changes and updates you Zealand and shall be subject to the jurisdiction of the must notify us in writing and we will implement New Zealand Courts. such changes as soon as is reasonably practicable, subject to our prior approval, not to be unreason- It is important for due consideration to be undertaken ably withheld or delayed. in relation to governing law. In my opinion, it is often (c) We will not use the Website or Social Media Pages better to have the governing law in the jurisdiction of to promote any marketing initiatives, promotions, the master franchisee or area developer for if there is discounts or loyalty schemes for your franchise a breach and the franchisor needs to seek remedies in system without your prior written consent. court, it is often easier and more expeditious to instruct local counsel to act on behalf of the US franchisor and It is important for all international franchisors or licensors to abide by the governing law in the local jurisdiction. to actively monitor their social media pages for otherwise a valuable brand could be destroyed while the parties are sleeping.

42 LAWTALK 928 · May 2019 UPDATE · FRANCHISING LAW

Designated Nationals and Blocked Persons or has lived in the target country. Local presence (SDN) list. Franchisors based in the United The franchisor should know whether the States must conduct searches on the cur- Reference checks target market requires it to establish a local rent SDN list to ensure that any potential A franchisor should contact each refer- subsidiary or branch in the jurisdiction or franchise transaction does not involve ence that a franchise applicant has listed whether the franchisor must operate its these individuals and/or entities. and ask questions about the applicant’s own units of the franchise being offered background character and competency. The for a certain period before it engages in Third party franchisor may need to use a translation franchising with other local parties. The The third party relationships of local part- service if the reference does not speak the franchisor should also determine whether ner candidates could pose a risk for the same language as the franchisor. foreign investment or ownership laws franchisor. The US federal government is restrict the franchisor from establishing increasingly seeking to impose liability on Conducting cross-border due diligence on a presence or investing locally. corporations for the acts of third parties, the business environment of the target such as distributors and subsidiaries in the market, the proposed local partner, area Industry regulations Foreign Corrupt Practices Act and other developer or joint venture partner, as well Are there industry-specific regulations contexts. as the local legal issues remains a vital that could introduce additional costs or part of a franchisor’s decision to enter a impractical requirements? Anti-money laundering legislation new jurisdiction. In conducting interna- Many countries in the world including tional due diligence, the franchisor will Travel restrictions New Zealand have anti-money laundering likely spend more, take longer and yield The franchisor should know what is required legislation. In New Zealand we have the less information than desired. Given the for the local partner’s personnel to visit Anti-Money Laundering and Countering scarcity of resources in many markets, the franchisor’s home country or the fran- Financing of Terrorism Act 2009 (AML/ it is prudent to allow for more time to chisor’s personnel to visit the target market. CFT) legislation which requires lawyers complete the due diligence process and to gather more information from clients. also be transparent with the prospects in Compensation and competition The information includes the following: regards to the process and the expectations Are there local laws related to termination • Original passport of the prospects. To the extent that public or non-renewal of franchises? Will the • Driver’s licence sources are limited, the franchisor should franchisor be required to compensate the • Bank statement (or power/phone bill) be prepared to ask local partner candidates local partner at the end of the franchise with current address and local counsel to produce a number of relationship? The franchisor should also • Details of directors/shareholders (if a documents related to the due diligence. To investigate whether it will have the right company) the extent a franchisor’s inquiries do not to require non-competition covenants as • Details of source of funds (if a company) reveal a depth of information, the fran- they are not always permitted or may be • IRD number. chisor may have to cover a broad range of heavily regulated in some countries. topics in a shallow fashion and make the Reputational due diligence most of the information provided, recog- Due diligence on the General business reputation nising that cross-border due diligence is local partner A franchisor should conduct a search of a difficult exercise that may not yield the Because the local partner is the key to the foreign news sources and media associ- same results as a domestic investigation. ongoing success of the franchise in the ated with the shareholders, principals and target country, a background check on the officers of a company under review. Conclusion individual local partner and the principal When a franchisor is looking to embark on officers of any proposed franchisee entity Social media cross border sales and franchising agree- is a critical part of the franchisor’s due Searches should be made of the social ments, there will be considerable impact diligence. A background investigation or media accounts of the individual local in relation to the risk and compliance to check delves into an individual’s general partner or its franchisee entity as well as that franchisor. There are many consid- reputation and history. When conducting its principal shareholders and officers. erations to take into account including an international background check, the tax laws, dispute resolution and serious franchisor must ensure that a potential Criminal records and civil lawsuits consideration of the governing law. When local partner in a target market does Each target country has varying laws you embark upon cross border transactions not trigger certain national security and about the type of criminal records that great care must be taken in relation to the anti-bribery legislation. Some important are publicly available, who is allowed to different jurisdictions, and expert legal aspects of a background check in the access them and how a third-party may advice should always be obtained in the international context are: use the information within a criminal local jurisdiction. ▪ record. To assist in reputational due dil- United States Office of igence, a franchisor should be aware that Stewart Germann is a franchising lawyer Foreign Assets Control the government of the United Kingdom and principal of Stewart Germann Law Americans are barred from engaging in has compiled a list of target countries and Office in Auckland. He can be contacted transactions with individuals and enti- their processes for obtaining a criminal on 09 308 9925 or at  stewart@ ties that are listed on OFAC’s Specially background check on someone who lives germann.co.nz.

43 PROPERTY LAW · UPDATE May 2019 · LAWTALK 928

UPDATE PROPERTY LAW Property transactions and technology

BY THOMAS GIBBONS some human intervention is needed. These cannot be avoided but can be a working part of any system. Issues like requisitions or claims for compensation – even essential Property lawyers can be slow adopters of tech- terms, deemed or otherwise – can be part nology: exhibit A has for some time been the ADLS/REINZ of a working system. Property transactions agreement, which sees security or efficiency (or something) are never as easy as the public thinks, but in settlement by fax machine, rather than by a nominated the number of variables is controllable in email address. most situations. Crystal ball gazing about technology is difficult and dan- gerous. It is very easy to be wrong. Demand for computers, The Next Generation(s) ipads, and gaming apps has often been very different from The next generation of the portal might link expectations. We don’t yet do property transactions by to Landonline (or its replacement) directly, bitcoin, and for every technological advance, there seems auto-populating information from the to be an equal and opposite compliance regime that slows contract portal into Landonline for signing down technology. and certification purposes. We might then move to wholly electronic Authority and Smart Contracts Instruction forms, executed by clicking It is however relatively easy to envisage a world of property buttons on a screen rather than signing transactions, driven by smart (self-executing) contracts. a piece of paper. It is difficult to see real Within five years, why not: estate agents (and some clients) wanting to • A digital portal system for land contracts, accessible by dispense with formal ‘signing ceremonies’. the lawyers for the vendor and purchaser. However, as one RGL-equivalent overseas • The vendor and purchaser’s lawyers enter contract terms, has put it, there is little conceptual differ- and lock them in digitally. ence between ordering sushi online and • Conditions are satisfied by a button click against the selling land online. relevant condition. Correspondence about the contract New Zealand sometimes has issues of only exists digitally. technological scale, and few would want • That portal uses the information entered to contact the to invest in a system that might not see relevant councils, auto-apportion rates and produce a widespread use. That said, some lawyers settlement statement (without human involvement or were slow to adopt (or slow to want to human error). adopt) edealing instead of paper transac- • That portal presents a list of what must be provided on or In a world tions, electronic payments instead of bank before settlement (discharge of mortgage, pre-settlement where it cheques, same-day cleared payments, real- disclosure statement, etc). is easy to time payments. Some today are slow to • Once provided and acknowledged, the system updates register a want to drop fax machines from practice. for this. transfer online, Some will not want to drop their calcula- • The portal accepts purchase money in escrow from the it should also tors for apportionments. purchaser, and automatically releases it to the bank be easy to But they will be able to. In a world where and vendor contemporaneously with the register being carry out a it is easy to register a transfer online, it updated (avoiding an exchange of undertakings). whole land should also be easy to carry out a whole • The portal could even auto-calculate (and in theory sale online, land sale online, and auto-executing settle- auto-deduct) penalty interest. and auto- ments seems an obvious next step. Beyond Such a system would not be difficult to create or use. There executing that, records of title may one day be held are of course many variables. A range of settlement day settlements and stored in a blockchain-type format, but issues can arise (the stove isn’t working, the lawns haven’t seems an what that means for the Torrens system been mowed, where is the bank money?, is X a fixture obvious next remains to be explored. Baby steps may or a chattel?). There are therefore many steps at which step. be the best place to start. ▪

44 ALTERNATE DISPUTE RESOLUTION

ALTERNATE DISPUTE RESOLUTION Cognitive biases: challenging the way we think Part 1

BY PAUL SILLS

❝ A great many people think they are thinking when ❝ Common sense is nothing more than a deposit of prejudices they are merely rearranging their prejudices. ❞ laid down by the mind before you reach eighteen. ❞ — William James — Albert Einstein

and stored from the past. Rather aim to simplify our decision-making We may think we are rational, open-minded than acting based on the facts at processes. While saving us time thinkers making ethical decisions in an objective, hand, we subconsciously base our when drawing conclusions, heuris- non-biased fashion. However, this is almost impossi- decisions upon a number of factors, tics result in cognitive biases, which ble. No matter how intelligent we believe we are, we essentially: previous decisions with may lead to false assumptions being are all susceptible to a swarm of cognitive biases. Our similar subject matter; information applied to new situations. decisions are often shaped by emotional attachments, we have selected which suits our Psychologist Gary Klein perfectly misleading memories or our personal self-interests. preconceived ideas; emotional summarises the cognitive bias pro- These patterns of behaviour fall under the umbrella attachments; and/or self-interest. cess: “our brains leap to conclusions term “cognitive bias”. Pattern recognition and emotional and are reluctant to consider alter- tagging are two processes that natives; we are particularly bad at Process contribute to cognitive bias. Both revisiting our initial assessment of a Cognitive biases are errors in our thinking which of these processes stem from the idea situation”. While cognitive biases can influence our decision-making processes. They are that our brains resort back to stored be good survival tools – making sure patterns of behaviour which draw us to particular information rather than evaluating we make safe and sensible decisions conclusions. We would like to believe we are making each decision as an individual and quickly, they can also distract from rational, well-informed decisions, but in reality, our fresh task. Heuristics encompass this logic and lead to bad decisions based brains form conclusions based on information gathered idea, being mental shortcuts which on poorly informed judgements.

45 ALTERNATIVE DISPUTE RESOLUTION May 2019 · LAWTALK 928

areas of the brain. The impact of Tversky and Kahneman’s research has stretched far beyond the confines of psychology to have a lasting and profound influence upon areas such as economics, finance, law and negotiation. The impact of the pair’s work is solidified through their 2011 book Thinking Fast and Slow. This received an abundance of awards such as the Presidential Medal of Freedom and was recognised in the New York Times Ten Best Books of 2011. Kahneman and Tversky’s research is important when investigating ethical decision-making as it challenges us to evaluate the steps we take when reach- ing conclusions. The pair’s findings are significant as they deconstruct often overlooked ideas – demonstrating that although we often think we are making careful decisions, our brains are merely post-rationalising decisions that have already been made. Identifying the flaws in our thinking enables us to improve our ethical decision-making. It is through this recognition that we can reduce the influence of personal factors on our decision-making and include a variety of information and external con- tributors. We rarely question our abilities to make decisions, so it is important that intuitive, faster thought process sometimes we open the door of discussion in this Theory referred to as the ‘gut reaction’ way of area to develop a better understanding of Psychologists Amos Tversky and Daniel making decisions. In comparison, system subconscious processes and consequently Kahneman developed the term “cogni- two (thinking slow) is the more idealised improve our judgement abilities. This is tive bias” to illustrate a person’s flawed way of decision making – involving critical not only important in the law and our patterns of responses to decision-making and analytical thinking. professional lives but also our personal and judgement problems. Through a series While most of us would say we are and everyday existence. of studies that were focused on behavioural system two thinkers, Tversky and Kahne- Many different types of cognitive biases decision-making, it was determined that man’s findings demonstrate that we spend have been established through various people make decisions based on heuristics most of our lives making quick decisions studies and investigations. Confirmation and common sense principles. In other – system one being automatic and system bias, the anchoring bias, the bandwagon words, people do not make decisions based two being used only when we are faced effect, the overconfidence effect, and the on rationality or logic. with an unexpected choice to make. optimism bias are five key biases which Tversky and Kahneman’s research System two requires effort and method- can be used to explain why good people began with the pair evaluating their own ical thinking, so system one will often take make bad decisions. The next article in this intuitions and looking for biases in their over from system two when decisions series will discuss these specific cognitive own judgements. From this, a series of become too difficult. System one simplifies biases in more detail. ▪ investigations were established, seeking matters by ignoring tools like statistics to discover why and how people make and facts, and “jumps to conclusions”. It Paul Sills  [email protected] is decisions. These experiments resulted in is important to note that these two systems an Auckland barrister and mediator, spe- the development of the “two-way system of are a metaphor to describe how the mind cialising in commercial and civil litigation. thinking”. System one (thinking fast) is the works rather than two physically separate He is an AMINZ Mediation Panel member.

46 LAWTALK 928 · May 2019 LAWYERS COMPLAINTS SERVICE

LAWYERS COMPLAINTS SERVICE

Complaints decision summaries

Three lawyers The standards committee emphasised noted with approval the steps taken by Mr that the number and nature of the breaches Claver to address some of the issues that suspended from evidenced a fundamental lack of compe- gave rise to these charges, including weekly tence and fitness to practise on Mr Claver’s counselling sessions, the engagement of legal practice part. Further, it drew attention to the lack an accountant, a significant reduction in of care and professionalism displayed by his workload and his withdrawal from The New Zealand Lawyers and the practitioner. undertaking jury work. Conveyancers Disciplinary Tribunal sus- However, after carefully considering the When deciding on the final penalty, the pended three lawyers from legal practice evidence, the Tribunal was not convinced Tribunal found that most of the failures in for periods ranging from three months to that Mr Claver had been intentionally dis- Mr Claver’s services to his clients could be 12 months. The suspensions were the result honest. Rather, it found that he had been cured by a reduction in his workload and in of three separate sets of proceedings. extremely careless and had taken on work managing the type of work he undertakes. for which he was not equipped, which After undertaking a comparison to simi- Simon Nicholas Claver put the public at risk in an unacceptable lar cases the Tribunal imposed a 12 month Simon Nicholas Claver has been suspended fashion. Therefore, while it found the level suspension order, which it viewed as a pro- from practising as a lawyer for 12 months of misconduct to be relatively serious, it did portionate response. Further, it considered from 1 March 2019. Mr Claver has also been not consider it to be at the most serious level that an order not to practise on his own ordered by the Tribunal not to practise on encountered by the Tribunal, and accordingly account would act as a sufficient safeguard his own account until further order of the did not find that strike-off was warranted. for the public in terms of oversight of his Tribunal. When considering aggravating factors, general standard of work. Mr Claver had admitted one charge of the Tribunal noted Mr Claver’s prior disci- misconduct which related to a range of plinary history; in particular, three unsat- Ronald Bruce Johnson failures over a two to three year period, isfactory conduct findings made between Ronald Bruce Johnson has been censured in respect of 14 different clients. Mr Claver November 2013 and December 2017 which and suspended from practice for three admitted all the particulars. These included: concerned conduct of the same nature as months from 1 May 2019. Mr Johnson acting without instructions, failing to that under current consideration. had been found guilty of negligence follow instructions, misleading the Court, In terms of mitigating factors, the in his professional capacity by the failing to act competently, failing to comply Tribunal gave Mr Claver considerable credit Disciplinary Tribunal. This related to his with penalty orders made by a standards for his acceptance of the charge. Further, it involvement in providing independent committee, mishandling client funds and making a false declaration to the New Zealand Law Society. Some of Mr Claver’s actions had signifi- cant consequences for his clients, including one client spending three weeks in custody beyond what was ultimately required. Legal Accounting Bureau · Save time and money Kathy Kell The Tribunal was required to consider provides comprehensive, · Always know your trust account [email protected] accurate, efficient and timely is balanced and your month end whether the offending was so severe as certificates are filed on time Ph 09 444 1044 management of solicitors’ trust Fax 09 929 3203 accounts. · Our service is completely secure to warrant strike-off, or whether a lesser and confidential www.accountingbureau.co.nz penalty could be imposed. In that light, it Outsource the management of · Trusted professionals with over your firm’s trust account. Either 20 years’ experience considered the seriousness of the offending come to us or we can come to · 72 law firms currently use our Powered by juniorPartner. as well as all aggravating and mitigating you remotely. services Practice Management software you can trust. features.

47 LAWYERS COMPLAINTS SERVICE May 2019 · LAWTALK 928

legal advice to the trustees of a trust. He unsophisticated trustees, this increased by the Legal Complaints Review Officer. was further found guilty of two counts of Mr Johnson’s duties under the retainer. These consisted of the manipulation of misconduct relating to breaches of the As such it found that he had not fulfilled a document and alternatively, a breach Trust Account Regulations. Mr Johnson his obligations to the trustees in respect of duty to supervise and manage. Mr appealed against both the decision and of the retainer. Morrison had admitted that his conduct in penalty, but his appeal was dismissed The High Court upheld in full the findings respect of each charge was unsatisfactory by the High Court. of the Tribunal. In particular, it found that but denied that his conduct amounted to Mr Johnson was asked by a fellow Mr Johnson’s duties were not limited to misconduct or that he was negligent or practitioner, Edward Errol Johnston, to advising the trustees on the mechanics of incompetent. advise the trustees of a trust in relation the transaction and included ensuring that Mr Morrison was instructed by a client, to the purchase by the trust of a property. the trustees were aware of their duties as a successful farmer, in respect of forming Although no reason was put in writing trustees and had considered whether the a trust and the creation of a new will. This for the reason of the referral, Mr Johnson purchase of the property was consistent stemmed largely from the client’s two sons was aware that Mr Edward Johnston had with those duties. being in dispute over the distribution of a conflict of interest because Mr Edward In respect of the trust accounting their father’s assets. Mr Morrison prepared Johnston was the owner and vendor of charges, Mr Johnson admitted the the will and trust deed. The important terms the relevant property. Further, Mr Edward breaches alleged, but appealed against of the deed (Version 1) were that there were Johnston’s trustee company was a trustee the finding of misconduct, arguing three named trustees, and that the discre- of the trust. that similar breaches had previously tionary beneficiaries included both of the When a complaint was lodged with the been treated as unsatisfactory conduct client’s sons as well as “any child, grandchild New Zealand Law Society, it was alleged or negligence. In the High Court, Mr or great-grandchild of the Settlor...”. that Mr Edward Johnston had used the Johnson submitted that for a finding of However, the client became disillusioned trust as a vehicle to further his own misconduct to be established, it had to with one of his sons and instructed Mr interests. Relevant to this matter, it was be established that his conduct was dis- Morrison that he required a variation of alleged that Mr Johnson had facilitated graceful or dishonourable or in reckless Version 1 whereby that son was to be this or was reckless to the truth of Mr contravention of the relevant Act or reg- removed as a discretionary beneficiary. Edward Johnston’s conduct. An investi- ulations. Further, it was submitted that Further, new trustees were agreed upon gator appointed by the standards com- in most cases relating to trust account as one of the original proposed trustees did mittee concluded that given Mr Edward breaches where there had been a finding not wish to become a trustee. Accordingly, Johnston’s ownership of the property, of misconduct, there had been a misap- a new version (Version 2) was created. Mr Johnson should have scrutinised propriation of client funds. However, the However, Version 2 was not signed and the transaction as to price and financial High Court, like the Tribunal before it, in early 2011 a final version (Version 3) viability. did not accept those submissions and was created. This version created sev- With regards to the alleged trust account- concluded that in the circumstances a eral changes, but importantly page 13 of ing failures, an inspection undertaken by finding of misconduct was appropriate. Version 1 with the client’s signature on it the New Zealand Law Society identified It found that Mr Johnson’s behaviour had was removed from Version 1 and inserted significant areas of non-compliance with fallen well short of the conduct required into Version 3. Further, the word “child” the Lawyers and Conveyancers Act and of by the Conduct and Client Care Rules. was removed from the definition of dis- the Trust Account Regulations. The High Court further upheld the pen- cretionary beneficiary by class. Version 3 In the Tribunal, much of the discussion alty of censure, three months suspension was not sent to the client for signature but in respect of the first charge turned on and costs of $50,000. sent to the other two trustees who duly the nature of Mr Johnson’s retainer. While signed and returned it to Mr Morrison. Mr Mr Johnson had argued that the retainer Andrew MacLean Morrison Morrison then hand dated the document was limited to advising the trustees on Andrew MacLean Morrison has been sus- 10 February 2010, the date that Version 1 the purchase and in respect of finance, pended from practice as a barrister and had been completed. the Tribunal concluded that the retainer solicitor for six months from 26 March The LCRO argued that the conduct con- was a general retainer which incorporated 2019. Mr Morrison had initially appealed stituted misconduct. It submitted that the advice on the significance of the purchase to the High Court against the Disciplinary removal of page 13 from Version 1 and its for the trust, including whether the Tribunal decision but subsequently with- insertion required a manual and deliberate purchase was consistent with the trus- drew his appeal. manual act. Further, it was alleged that the tee’s duties. It also found that since Mr Mr Morrison faced two charges of mis- removal of the word “child” from Version 3 Johnson was dealing with commercially conduct in the Tribunal, which were laid required a manual act and a degree of legal

48 LAWTALK 928 · May 2019 LAWYERS COMPLAINTS SERVICE

analysis. It also relied on Mr Morrison’s it unnecessary to balance those facts undertaking, Langdale did not hold a fully admission that he inserted the date 10 against a credibility consideration of [Mr signed deed of assignment of lease (the February 2010 into Version 3. Accordingly, Morrison] arising from his unblemished deed was not fully executed). it submitted that these actions were done record”. It stated further that was not When the deed was not handed over at wilfully with a wrong intention. unusual for a lawyer who has a previously settlement, Sowerberry sought an explana- The fact that the only people who worked unblemished record to be found to have tion from Langdale. When no explanation on the document(s) were Mr Morrison and sullied that record. was forthcoming, Sowerberry made a his legal secretary, gave rise to the alterna- complaint about Langdale. tive charge of breach of duty to supervise Three weeks before the release of the and manage. committee’s decision on Sowerberry’s Mr Morrison admitted all essential facts. Counter complaint, Langdale made a counter He described these as significant errors complaint about Sowerberry in relation amounting to unsatisfactory conduct for complaint showed to the same transaction. Langdale com- which he took responsibility and described plained that Sowerberry had breached what happened as being accidental. lack of insight his undertaking by failing to pay the rent Submissions for the practitioner stated shortfall of $400. that the likely explanation was a lapse by Sowerberry responded to the complaint an overworked older practitioner near the [All names used in this article are and noted that he did undertake to pay the end of his career. Reliance was placed on Mr fictitious] shortfall to Langdale “upon receipt of the Morrison’s 50 years of unblemished practice. sum from his client”. The Tribunal found Version 3 to be a A lawyer who made a “counter com- To date, the client has not paid fraudulent document. It further concluded, plaint” appeared to demonstrate a lack Sowerberry the money, and accordingly after careful consideration of the evidence, of insight into his own professional he has not paid the money to Langdale. As that Mr Morrison was responsible for conduct and the role of the Lawyers such, Sowerberry maintained that he is not the manipulations resulting in Version 3 Complaints Service, a lawyers standards in breach and that should he subsequently and that these were done deliberately. It committee said. receive the sum from his client, he will accordingly found that Mr Morrison’s con- The counter complaint was made on pay it to Langdale in accordance with the duct was dishonourable and constituted behalf of Langdale about another lawyer, undertaking. misconduct. Because it had found Mr Sowerberry, in relation to an undertaking. The committee said that in its mind “it Morrison responsible for the manipulation Langdale acted for the vendor of a café was clear that the undertaking was to be of the document, it was not necessary to business while Sowerberry acted for the conditional on receipt of the funds from consider the charge relating to breach of buyer. the client, and therefore no breach had duty to supervise and manage. On settlement day, Langdale sent a fax occurred”. In terms of Mr Morrison’s unblemished to Sowerberry’s firm. The fax included an “Furthermore, [Sowerberry] appeared record, the Tribunal accepted the submis- undertaking to provide the original or cer- to have taken all reasonable steps to try sion from the LCRO that “the facts of this tified copies of the deed of assignment of and get his client to pay, including sending matter were sufficiently compelling in lease to Sowerberry’s firm after settlement five emails and making two phone calls.” favour of a finding of misconduct to render date. However, at the time of giving the Accordingly, the committee decided

Now also available in New Zealand: Philips SpeechLive Secure cloud dictation

Contact us on +64 9 887 0396 communications

49 LAWYERS COMPLAINTS SERVICE May 2019 · LAWTALK 928

to take no further action on the counter was “likely to receive media publicity”. media interest was a threat made for an complaint made on Langdale’s behalf about The correspondence also said that “if the improper purpose. [Sowerberry]. above settlement figures are provided then The improper purpose was Maylie’s The committee also noted that the [Traddles] will agree not to proactively ulterior motive to achieve a swifter and “appropriate forum to recover the out- contact the media about the situation”. better settlement for his client by using as standing $400 is the Disputes Tribunal In further correspondence four days leverage the threat that he might disclose and wished to emphasise that the Lawyers later, Maylie wrote “I act for [a media details of his client’s personal grievance to Complaints Service was not the appropri- organisation]. I have discussed this situa- the media. The committee considered that ate medium for such a dispute”. tion with them in very general terms. They this was a breach of Rule 2.7 of the RCCC The committee noted that the counter are very interested in learning the identity and was sufficiently serious to amount to complaint appeared to be a reaction of the respondents and of the specific facts unsatisfactory conduct. In addition to the to Sowerberry making a complaint involved in this matter. If matters are not censure and fine, the committee ordered about Langdale in relation to the same resolved, then it seems almost certain that Maylie to pay $1,500 costs. transaction. this matter will attract publicity.” The corre- On review, the Legal Complaints Review “The committee was concerned that spondence also set out Traddles’ intent to Officer (LCRO) confirmed the committee’s [Langdale]’s actions showed a funda- complain about both the former employer determination in LCRO 171/2018. However, mental lack of understanding of lawyers’ and Nupkins if certain conditions were not the LCRO considered that Maylie had also undertakings, and was concerned that agreed to. A settlement was agreed later breached Rule 2.10 of the RCCC and made Langdale’s response had not been to accept that same day. a further finding of unsatisfactory conduct. the outcome of [Sowerberry]’s complaint Nupkins subsequently complained to the While the committee had primarily about him, but rather to counter with Lawyers Complaints Service that Maylie addressed Rule 2.7 of the RCCC, the LCRO a complaint about the lawyer who had had threatened him for an improper pur- considered that “a threat to make a com- complained about him. pose in breach of Rule 2.7 of the Lawyers plaint to a regulatory body takes on an “These actions appear to demonstrate a and Conveyancers Act (Lawyers: Conduct element of improper purpose if the threat is lack of insight into his own professional and Client Care) Rules 2008 (RCCC), and invoked as leverage to achieve a particular conduct and the role of the Lawyers had also threatened to use the complaints outcome.” Complaints Service,” the committee said. service for an improper purpose in breach It is difficult, the LCRO said, to escape the of Rule 2.10 of the RCCC. conclusion that [Maylie] is utilising a threat Nupkins claimed that Maylie threatened of making further complaints (against the (impliedly if not expressly) to disclose former employer) to incentivise the former Made threat for details of Traddles’ personal grievance to employer to adopt his client's preferred the media in order to improperly pressure approach for the advancing of a complaint improper purpose both the former employer and Nupkins to against Nupkins. reach a settlement with Traddles. “If the threat to raise concerns in the “There will be situations where rep- disciplinary forum is conditional upon [All names used in this article are resentatives clarify that if a particular the party being potentially complained fictitious] demand is not met then lawful options about complying with a demand made by available to a party can and will be [Maylie], there is a real possibility of the A lawyer who made a threat for an progressed”, the committee said. In this threat being considered improper.” improper purpose has been censured context, the committee considered that “In my view, the issuing of a threat to and fined $5,000 by a lawyers standards [Maylie] could have said that if the set- engage the disciplinary process is done committee. tlement terms he proposed on behalf of with collateral purpose,” the LCRO said. The lawyer, Maylie, was engaged by his client were not met then his client In addition to confirming the commit- Traddles, in relation to a personal griev- would pursue personal grievance proce- tee’s determination and adding a second ance she had raised against her former dures through the Employment Relations finding of unsatisfactory conduct, the employer and Nupkins, a lawyer at her Authority, which has the statutory juris- LCRO also ordered Maylie to pay $1,200 former employer. The parties subsequently diction to determine personal grievances costs. engaged in correspondence and entered in an employment context. into settlement negotiations. While noting that it was open for Maylie’s However, during these negotiations, client to contact the media, the committee Maylie wrote and advised the former concluded that Maylie’s repeated reference employer’s solicitors that the situation to the possibility of the matter attracting

50 Asking for help is a sign of strength

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

Healthy Mind • Healthy Body • Healthy Practice PRACTISING WELL May 2019 · LAWTALK 928

PRACTISING WELL TALKING ABOUT MENTAL HEALTH The benefits of working flexibly for mental health and wellbeing

BY AMY PREBBLE

senior leadership. Perpetual Guardian’s four-day week When Sarah Taylor asked whether I would be trial resulted in a 20% increase in productivity, staff interested in writing an article as part of a series aimed stress levels dropped from 45% to 38%, and work/ at destigmatising mental health in the legal profession, life balance scores increased from 54% to 78%. ANZ I jumped at the opportunity. At some point in our lives introduced All Roles Flex in 2015, and 67% of ANZ we will all have a friend, family member, colleague employees now have a flexible working arrangement. or our own struggle with mental illness. We all have In 2016, 91% of ANZ staff agreed that ‘My manager mental health, just as we all have physical health, and supports workplace flexibility and my efforts to bal- it fluctuates – sometimes feeling positive, energetic and ance my work and personal life’ (up from 79% in 2011) resilient; at other times feeling anxious, overwhelmed (Champions for Change). and exhausted. In the same way that we try to prevent physical illness Mental health challenges and promote good physical health, for example through Flexible work is not currently widespread across the fitness and a healthy diet, we can also promote good legal profession, but could offer a valuable tool to help mental health and help prevent the onset of mental tackle mental health challenges. illness. One effective strategy for promoting mental With a culture of working long hours, heavy work- health and wellbeing in the workplace is offering flexible loads, meeting budgets, and a need to meet client work options. expectations, lawyers are at particular risk of exhaustion, stress, and burnout. What is flexible work? “I go home just to sleep, I am in the office for every Traditionally viewed as part-time employment for other minute of the day. That working mothers, the benefits of working flexibly for being said, I have only had to work everyone are increasingly being recognised. Flexible two weekends over the past four work arrangements refers to flexibility over the time months, which has been nice.” and/or place of work, and can take many different forms. There are clear (LegalCheek quote) It includes full-time flexible and part-time work, flexible links between A World Health Organisation start and finish times, remote working, job-share, fixed employee (WHO)-led study estimates that term, condensed working week and extended leave. autonomy and depression and anxiety disorders Flexible work options are important to a wide range of better mental cost the global economy US$1 tril- people for different reasons, including parents balancing health. When lion each year in lost productivity. work with childcare responsibilities, our ageing work- people have Within New Zealand, general stress force seeking semi-retirement, entrepreneurs starting more control and anxiety levels are up 23% across a business, people managing an illness or disability, over when businesses. Workload is the main and people pursing interests such as a sport, writing a and how they cause for stress, while longer work- novel or volunteering. work, they ing hours are also on the rise for While flexible working enables employees to can balance smaller organisations. In 2016, New balance work with other life priorities, it also has their personal Zealand lost 6.6 million working significant business benefits for employers. These lives alongside days and NZ$1.51 billion due to include attracting and retaining skilled talent, increas- professional absence (Wellness in the Workplace ing employee engagement and reducing turnover, goals more Survey 2017). increased productivity and improving diversity in effectively. Promoting good mental health

52 and wellbeing at work is critical employee autonomy and better for both individuals and employ- Flexible work can help mental health. When people have ers. For individuals, it is important prevent mental health more control over when and how for a healthy, balanced lifestyle, issues from arising they work, they can balance their managing stress and psychological While a workplace may not be able personal lives alongside professional wellbeing. For employers, it is vital to prevent all causes of poor mental goals more effectively. This might for a productive and engaged work- health and wellbeing, it can take include physical exercise and sleep, force, and reduced absenteeism. The steps to help reduce some of these connecting with friends or whānau, Health and Safety at Work Act also causes. spending time with children, requires organisations to manage The WHO has identified “inflex- working on a project which gives risks to workers – including risks to ible working hours” as one of the purpose and meaning, or relaxing their mental health and wellbeing. key risks to mental health in the – all essential elements of positive Given the high economic and working environment. It recom- mental health. personal costs that result from mends “involving employees in Managing personal aspirations workplace mental illness, there decision-making, conveying a and passions alongside professional are clear advantages associated feeling of control and participation; goals helps to build self-esteem, can with providing a mentally healthy organisational practices that sup- provide a sense of pride and promote workplace, to both help prevent port a healthy work-life balance” to a positive outlook, which will have an onset of mental health issues, protect and promote mental health benefits in the workplace. Flexible and to support people with mental in the workplace. One of the key working hours promotes a sense illness. A WHO-led study estimated steps to workplace wellness iden- among workers that they have the that for every US$1 put into scaled tified in theWellness in the Workplace discretion to fit job-related respon- up treatment for common mental Survey is: “Consider ways to reduce sibilities into their broader lives, disorders, there is a return of US$4 employee workloads or allow staff which can contribute to less stress in improved health and produc- to work more flexibly to better and burnout. tivity (WHO, Mental health in the balance that workload”. Working from home can also workplace, 2017). There are clear links between be an effective way of managing

53 PRACTISING WELL May 2019 · LAWTALK 928

a heavy workload, and thanks to mental health, and supporting indi- advances in technology, lawyers viduals to return to the workforce are now able to do a large part of is critical. their jobs from almost anywhere. “Being supported by my manager Remote working can also enable when I suffered a depressive episode a more efficient use of time than over ten years ago helped me quickly commuting to the office, which recover, and I have since gone on may be significant if you are trav- to numerous senior leadership elling through Auckland traffic, or roles…. It is clear that an important from Wairarapa into Wellington. A component of that care is having the relaxed, quiet home environment freedom to work flexibly and plays can also be a welcome reprieve to an important role in creating culture concentrate away from a noisy open of caring for employees.” Ross Jones, plan office environment. Vice President of Strategic Growth at Jacobs. Flexible work options can also help people Mainstreaming address mental illness flexible work in the “Flexible working options are legal profession probably the most effective strat- Many global and New Zealand egy for meeting the workplace employers are offering flexible needs of workers with mental working arrangements – Vodafone, illness.” – Australian Human Rights EY, Harrison Grierson, University of Commission. Auckland, Aurecon, and Transpower Employers have a responsibility to name a few. All New Zealand to support employees with mental public service agencies will be illness in either continuing or ‘flexible-work by default’ by the end returning to work. Because there of 2020 (and several public sector can sometimes be stigma associated organisations already are). In-house with mental illness, it is important lawyers are benefitting from these that individuals feel supported and arrangements, with flexible options the perception of flexible work to are able to ask for flexible arrange- offered to all staff. recognise the benefits for every- ments so that they can continue to Some law firms such as one, not just working mothers. work. MinterEllisonRuddWatts, Juno, and The Canterbury survey received Many people want to continue Lexvoco (now known as LOD) pro- an overwhelming response from working, and a lot of people can mote flexible work arrangements. women – 90% of respondents were successfully manage their illness However, these firms appear to be female and just 10% of respondents without it impacting on their work. the exception. were male. The study found that Employment can help with recovery A 2017 study on flexible and men were less likely to use flexible when flexibility is offered, which part-time work arrangements in arrangements. may include: the Canterbury legal profession Some of the challenges to imple- • reducing working hours to pro- found that formal work policies on menting flexible work arrangements vide time to attend medical or flexible arrangements rarely exist include overcoming presenteeism therapy appointments, in the legal profession (University and trusting staff to get their work • flexible working hours to avoid of Canterbury Socio-Legal Research done without being visible. This the stress of commuting crowds, Group for the Canterbury Women’s requires a focus on output, rather • occasionally working from home, Legal Association). There was a than hours an employee spends in • taking extended leave. perception that employers would the office. It is particularly important For those that need time off to not support flexible work – the that leaders walk the talk, and role recover, a phased return to work majority of those surveyed without model working flexibly. One lawyer may be more effective than a longer an existing arrangement believed spoke of a manager who explained time off and returning to work that working flexible hours would that he was “old fashioned” when full-time. Unemployment, and par- not be possible with their current turning down a flexible working ticularly long-term unemployment, employer. request, as he liked to be able to can have a detrimental impact on There is also a need to change see his staff.

54 LAWTALK 928 · May 2019 PRACTISING WELL

Some useful resources: • www.mentalhealth.org.nz • www.depression.org.nz • www.toughtalk.nz • www.wellbeingatthebar. org.uk • www.wellplace.nz • www.ruok.org.au • www.lawsociety.org.nz/ practice-resources/ practising-well If you’re worried about your or someone else’s mental health, reach out to someone you trust, your GP, local mental health provider, employee assistance programme or contact one of the organisations below: Lifeline (0800 543 354 or free text HELP to 4357) Need to Talk? (text or call 1737) Suicide Crisis Helpline (0508 82 88 65) Samaritans (0800 726 666) If you or someone else are in immediate danger, call 111

Given the importance of flexible feel they can request a flexible is to enable all people in Aotearoa work in helping to prevent and arrangement to better balance their to progress a professional, flexible addressing mental health issues, work demands or manage a mental career regardless of age, gender, organisations should consider main- illness while continuing to work. A industry or geographic location: streaming flexible work options for supportive manager and openness  www.getaflex.co.nz everyone – regardless of gender, to trialling new arrangements will age, role, or reason. New Zealand’s make a significant difference. Sarah Taylor is the co-ordinator of legislation enables all employees This is particularly important in this series, a senior lawyer, and the with the right to request flexible a demanding profession like law, Director of Business Development working arrangements at any time so that employees can continue to at LOD NZ (formerly Lexvoco), a (Employment Relations Act 2000). do their best work, while living a law firm focused on the success Employers must reply in writing healthy and fulfilling life. As stated and wellbeing of lawyers. In 2016 and may refuse a request only if it by Sir John Kirwan: Sarah won the ILANZ scholarship can’t be accommodated on certain “In my lifetime, I want us to move and wrote a paper, Valuing our grounds. from having one of the highest sui- lawyers: The untapped potential In the absence of formal or overt cide rates in the world to the lowest. of flexible working in the legal policies and processes, flexible work We can be the Sir Edmund Hillary profession, which was published may carry a stigma and employees of mental health”. by the New Zealand Law Society. may be reluctant to request flexible Ētahi ara e rima ki te ngākau ora, Her paper can be found on the arrangements if they fear a nega- help people stay mentally well. ▪ ILANZ website. tive impact on their future career progression. Amy Prebble is the founder of If you’d like to contribute to an article Organisations need to create a Getaflex, a NZ-grown job platform in this ongoing series or have a topic culture which supports flexible providing flexible work for all pro- you’d like covered, please contact working, so that all employees fessionals. The mission of Getaflex Sarah:  [email protected]

55 PRACTISING WELL May 2019 · LAWTALK 928

PRACTISING WELL Manage your energy

BY RAEWYN NG

Energy Project, identifies four sources of energy in all of We’re often told to manage our time effectively us – the body, mind, emotions and spirit. With each energy to get things done – make to-do lists and block out time source there are practices we can establish to renew our in the day for specific tasks. energy more quickly, and more interestingly, increase our As demands on our time and energy continually increase, overall energy capacity. and we find ourselves stretched both in the workplace and in other areas of our lives, we need to find better ways to The body – quantity of energy manage than simply putting in more hours. We need to We all know good nutrition, exercise, sleep and rest makes shift our focus from managing our time to managing our us feel better, but for many people practising consistent energy for consistent high performance and learn how to healthy habits is difficult. Several factors may be responsi- increase our ability to do more. ble for this attitude like the cultural expectation we should There is the obvious approach we can take, paying atten- be busy and exhausted to demonstrate how hard we’re tion to energy levels through the day and planning tasks working and a tendency to put others’ needs before our accordingly. When we’re smarter about the way we work and own. save our high energy times for creative work, discussions, We need to shift both our individual mindset and decision-making, planning, thinking and reflecting, and our that of organisations to recognise that, if we look after low energy times for routine work and administrative things ourselves first, we will be more productive and efficient like answering emails, we can increase our work output. and everyone wins. However, according to Tony Schwartz and Jim Loehr, in Aside from the basics of eating well, getting adequate The Power of Full Engagement, “the number of hours in a day exercise and sleep, ensuring regular short breaks through is fixed, but the quantity and quality of energy available to the day can help rebuild energy. We naturally experience us is not”. Recognising that while time is a finite resource, peaks and troughs in energy through the day, typically in our energy is not, brings a whole new perspective. As 90 to 120-minute cycles known as ultradian rhythms. By we focus on our quality of energy, we can start thinking harnessing our ultradian rhythms and working with them, about how to build more energy and increase capability. giving ourselves a short time out at that point when energy To increase energy capacity, Schwartz, the CEO of the naturally lowers, we can return with better concentration.

56 LAWTALK 928 · May 2019 PRACTISING WELL

It doesn’t matter how long or short these breaks are, it’s the quality that counts. Whether it’s 20 minutes to take The emotions: quality of energy a walk outside, or three minutes to do some breathing We do our best work when we have a positive outlook, exercises or simple movements, listening to some music or and this contributes to the quality of our energy. If we talking to a colleague, if it allows your brain to switch off don’t take breaks through the day, we can’t sustain this momentarily, you’ll get back to work with renewed energy. positive outlook. Alternatively consider the Pomodoro technique which The stress of high workloads and unexpected challenges aims to promote a sense of urgency to encourage focus. Set have a real effect on mood. As we move into negative a timer for 25 minutes of focused work, then a five-minute emotions – anxiety, irritability, impatience – and a stress break. After four rounds (around the time of one ultradian response is stimulated it gets hard to focus, we lose clarity, cycle) take a longer 15 to 20-minute break. logic and the ability to rationalise. You may find one method works better for you than Learn to recognise what triggers negative emotions the other, or that an adjustment to the work cycles suits through your day and how to manage them to promote you best. clarity and maintain productivity. We can change from a high stress fight-and-flight The mind – focus of energy response to a relaxation response in just three minutes While many people consider it essential or more productive with slow breathing techniques. Try taking deep breaths to multitask, the reality is it seriously cuts into productivity. through your nose deep into your belly for five seconds, Research has repeatedly shown that multitasking can slow then pause before breathing out for seven seconds. By productivity by as much as 25-40% especially as tasks prolonging the out breath, you’ll tap into your relaxation become more complex. response more quickly. Our brains aren’t made to focus on more than one thing at a time, what we actually do when we multitask is shift The spirit: meaning and purpose from one thing to another. When we do this, not only When our work aligns with our values and we’re doing do we lose time and energy, there’s also evidence that things that give us a feeling of meaning and purpose, we multitasking could be changing the structure and function usually feel more positive and can focus better. We may of our brain. not have spent much time reflecting on our core values, Multitasking creates an addictive dopamine feedback but when we can identify what’s important to us it can loop, rewarding the brain for losing focus and encouraging be a powerful motivator and get us working more in our a constant search for more external stimulation. Whenever flow. Schwartz looks at three categories: we multitask, we’re training our brains to lose focus and get • What do we do best and most enjoy at work? distracted. While we’re developing this addictive craving • Allocating time and energy to the things that are most for more distractions, we’re also increasing stress hormone important to us. production, causing mental fatigue and anxiety. It becomes • Living core values in daily behaviours. an exhausting cycle. It’s important to recognise that what we Heavy multitaskers have been found to be less mentally do best and what we most enjoy may not organised, struggling to switch focus from one thing to be the same things. Think about the jobs or another and having difficulty sorting out relevant and activities that you find fulfilling, absorbing irrelevant details. Media multitaskers (those who spend and inspiring and focus in on the specific long periods on several electronic devices at once) display aspects that are most enjoyable. lower grey-matter brain density, resulting in less cognitive Often what we say is most important to control and poor attention span. us may not be where we spend much of Consider focusing on one task at a time for an ultradian our time. Set aside time for the things that or Pomodoro cycle, avoiding distractions by closing your are important – family, health, friends, etc email account and putting your phone out of sight. Pay – these are the things that help rejuvenate attention to your energy and focus fluctuations and take a and rebuild energy. break at the end of your cycle. You’ll get more done more Our brains We can manage our time as much as we quickly and reserve energy for other tasks. aren’t made want but the bottom line is there is only People typically spend one third of their time in the office to focus on 24 hours in the day. and half the time they are working from home reading more than When we recognise how we’re working and answering emails. One third of that time, the emails one thing at is depleting our energy and take care of our are neither urgent nor important. Instead of responding a time, what energy sources effectively, we can take on to emails as they come in, set aside times during the day we actually more in the same amount of time. to check them. You will be able to focus better on the task do when we Organisations need to move away from at hand, saving yourself from losing energy from attention multitask is focusing on how to get more out of their shifting and you’ll get through the emails faster in one hit. shift from people to investing more in them and Make it clear to people you work with that this is how you one thing to enabling the space for their people invest operate, and if it’s urgent they can call you. another. in themselves. ▪

57 PRACTISING WELL May 2019 · LAWTALK 928

PRACTISING WELL

attitudinal lesson younger me taught present me this day.) Please make The date of publication (onfanfiction.net ) reveals that I wrote my little opus right in the middle of my year 12 exams, and two weeks before I was to leave for France on terrible art a student exchange. As someone who feels “too busy” in a lacuna of a Sunday to write a few lines of a song, this timing astonishes me. BY KATIE COWAN Lessons learned I will not be sharing with you the content of my writing, as that would not be dignified. But here is what I learned from reading my 2003 self ’s work. First, she was willing It is easy to think, as we advance in to make terrible art, and quite a lot of it. Second, she was life, that we know far more and are defi- willing to work on her art in the middle of high stress nitely better than our younger selves. This periods. She fit it in around the edges of things in bits and is mostly true, but it is not totally true, and pieces here and there. Third, she had an enthusiasm and I have brought with me today my younger a determination that I admired, attitudes I would enjoy self to make my point. She will also be having more of in my adult life. She was also very hard making an additional point, which is that, on herself, and wrote almost as much disclaimer as she as one goes along in life, one should make did story (no change there). some terrible art. These are interesting lessons, and indeed I was chas- A direction I wanted to face this year tened. My younger self had a much healthier attitude to was a more active creative life for myself. creativity than my present self does most days, and she had I believe that part of what makes humans eight chapters of fanfiction to show for it, not to mention human is our creativity, and that the more several other terrible stand alone stories and even a terrible creativity you bring into your life, the richer novel. She may just be my hero. that life becomes. Creativity is an especially Please do not think that I am maligning my younger good antidote for the kinds of anxiety and self when I call her art terrible. The art itself was … fine, intellectual rigidity I am prone to. especially when you consider I was 16 and had not yet I generally think of my past self as a received Stephen King’s rap over the knuckles for adverb creative person who didn’t do much with abuse. What I mean by calling it “terrible art” was that her creativity, and I didn’t want my future she was willing to risk making terrible art in service of self to fall to the same fate. So I have been making anything at all. This is a lesson for all people in all doing bits and pieces to grow a creative life times, and one I have to relearn at least twice a year. At that feels good. “Aha!” I would say to my 16 I apparently lived it like it was nothing. younger self. “Look at me, doing so much My point is two-fold: first, our younger better than you could. Truly it is I who is selves may not have had the skills or the best version of us.” knowledge of our older selves, but often- But I was forced to reconsider my rela- times they had an enthusiasm and a tive wisdom when I re-met my younger courage that our older self has less capacity self in ghost form. Or rather, when I met Our younger for. When it comes to listening to people her in the form of the eight-part series of selves may younger than us in our lives and offices, we Gilmore Girls fanfiction I wrote in 2003. not have had would do well to welcome that enthusiasm Fanfiction is a type of writing people the skills or and the fresh eyes that accompany it. We on the internet do using existing fictional knowledge quickly forget what we no longer know, worlds and characters. Often they use it of our older and new people remind us. If we’re lucky, to make characters kiss who would not selves, but our younger selves left messages for us ordinarily kiss. In my case, I was correcting oftentimes to read now, possibly in serialised form. the canonical record of how (spoiler alert) they had an Second, and take this from my 16-year- Rory and Jess got together in Season 3, enthusiasm old self: it is important to make terrible art. as evidently I felt that showrunner Amy and a Write clunky plays, compose derivative Sherman-Palladino’s version was not true courage that songs, sculpt lopsided sculptures. Giving to her characters. (Believing, at 16, that our older yourself permission to make terrible art you know how to write television better self has less opens the door to making any art at all, than a career television writer is not the capacity for. and lawyers need to make art.

58 Antidote day to day life and in attachments to I was excited to discover that my younger self was so how you see yourself (“I am a person onboard with making terrible art, since it’s an edict I am who is good at things”; “failure is evangelical about, especially for intellectual lawyer-types. not tolerable to me, a person who is Making terrible art is an antidote to many of the lawyer good at things”). So I am grateful for modes that can get out of hand if they leach beyond the my re-exposure to the terrible art of bounds of work. It is an antidote to the idea that you my teenage self. She was cooler than cannot be a beginner again once you are an expert, and I thought she would be, and proved to the idea that results matter more than process. It is an once again that humans regularly antidote to hypervigilance and hyper-intellectualisation. forget and have to relearn even the It is a means to relax and to play, to break up the rigidity most profound lessons. of a mind focused on rules. Apart from all of that, making Making So please, lawyers, go forth and art feeds intellectual work because it stirs up the mind, terrible art is listen to the things you have for- and particularly the part of the mind that joins dots while about having gotten of your younger selves. And one is staring out a window. the courage above all, make some time this week Making terrible art is not about where or how you might to be bad at to make some terrible art. I will be publish or perform the work. It is not about the product; something, joining you at my piano, inspired by it’s about the process. I have discarded eight paintings and to do my 16-year-old self to make up songs this year before they even dried, and boy did it feel great. something with the same four chords until the Making terrible art is about having the courage to be bad without a neighbours ask me to stop. ▪ at something, and to do something without a purpose or purpose or end in mind. It is deeply human and great fun. It is also, end in mind. Katie Cowan  katie@symphonylaw. unfortunately, the only path to one day making good art. It is deeply co.nz is a former lawyer and director I believe what I am saying about terrible art, by the human and of Symphony Law, a consulting prac- way, but I forget a lot too. It is easy to get caught up in great fun. tice for lawyers.

59 ACCESS TO JUSTICE May 2019 · LAWTALK 928

60 LAWTALK 928 · May 2019 ACCESS TO JUSTICE

How well does pro bono work in New Zealand?

BY CRAIG STEPHEN

Does pro bono work done by New Zealand’s lawyers get to the people who are often denied legal assistance due to their financial position? Could more be done by the legal profession here to ensure that the right lawyers are matched with the right people? Craig Stephen asks some movers and shakers for their views on what could happen to pro bono

legal consumers and lawyers and is In an age of growing inequality encouraged by the Law Society. For and cutbacks to legal aid, pro bono lawyers it can be an effective and work (from the Latin “pro bono pub- practical way to address concerns lico” or simply “for the public good”) about access to justice.” carried out by New Zealand’s lawyers Provision of such services ensures is now regarded as not merely a right that New Zealanders have a fair, strong but a necessity for the large numbers and efficient justice system. of people who can’t afford to pay While pro bono work by lawyers is top-dollar lawyer fees. encouraged here, in some jurisdictions New Zealand lawyers carry out an it is mandatory that lawyers carry unknown amount of hours of pro bono out a certain number of hours of pro each year, with most of that work not bono work or it is encouraged through being recognised in the wider com- pro bono clearing houses. And some munity. That’s largely because lawyers prospective clients require it before a are happy to do something for nothing lawyer can bid for their work. because the alternative would be no action at all due to the inability of the How it is done here, recipient to afford legal fees. and who gets it While kudos goes to all lawyers who Lawyers largely tend to carry out pro work without remuneration, there is bono work at Community Law Centres the question of whether enough pro (CLCs) and less so at Citizens Advice bono is provided and if it could be Bureaux (CABs). The former endured arranged in a way that ensures that an 11-year funding freeze but received a the workload is spread out. boost in the 2018 Budget. Lawyers can It’s important to first note that also volunteer their time and expertise there’s no obligation on New Zealand directly, through an NGO or charity or lawyers to carry out a certain amount even the local sports team. of pro bono. A Law Society Practice However, section 9 of the Lawyers Briefing notes that “Pro bono work can and Conveyancers Act 2006 imposes be a rewarding experience for both restrictions on carrying unpaid work

61 ACCESS TO JUSTICE May 2019 · LAWTALK 928

out with CLCs and CABs. In fact, lawyers could be found guilty of misconduct if they do so. Sarah Dowie’s Lawyers and Conveyancers (Employed Lawyers Providing Free Legal Services) Amendment Bill is currently before Parliament and would amend the 2006 Act to allow lawyers more freedom over the unpaid work they can do. The Law Society is also work- ing out a way in which in-house lawyers, who are not approved to practise on their own account, can provide pro bono assistance direct to the public without being in breach of the Act. This will require legislative change. The Legal Services Act 2011 cut back dramatically on legal aid in order to cut costs. Criminal Bar Association President Len Andersen says the 2011 Act changes mean that a large section of society is now effectively excluded from free or low-cost legal help, and aren’t earning enough to go through the normal ones for which lawyers will never channels. get thanked for nor get the credit for. “The people who really hurt in terms of our legal It’s cases like the solo mother who system are the middle income earners. Those on low has limited means, may not qualify incomes can get legal aid, those on high incomes can for legal aid because the charge is afford legal representation, but it’s the people in the not serious enough but need help. middle who are squeezed. And they’re unlikely to want That’s what I mean by pro bono.” to rely upon a free lawyer. “And you’ll see in the response to the Christchurch And over there… terror attacks there has been an effort for lawyers to Most legal professions in jurisdic- provide assistance to the families who suffered and the tions around the world have a policy law profession is happy to react to that sort of thing and The people on pro bono, even if it is merely wouldn’t expect to be paid for it.” who really hurt to encourage lawyers to carry it New Zealand Law Society President Tiana Epati has a in terms of our out. Very few lawyers’ regulatory strong connection with pro bono work and legal aid. She legal system and representative bodies appear estimates that the amount of such work her Gisborne are the middle to have a mandatory pro bono firm Rishworth, Mathieson and Wall does free is about income earners. requirement. 20% of its total business. Those on low LawTalk contacted a number of She says there’s a strong pull from the vulnerable incomes can get professional bodies to find out their for legal services. legal aid, those policy on what lawyers should do “The local community law centre will often send on high incomes to help those who need it but can’t people our way because their ability to deal with the can afford legal afford to go down the normal legal amount of queries is quite limited, and we don’t tend representation, channels. to turn people away unless it is a big piece of work that but it’s the would result in the business grinding to a halt. These people in the United States are not the high-profile cases, it’s the ones that are not middle who are The US is one of the most proactive spoken about, that don’t result in LinkedIn posts; it’s the squeezed. globally.

62 LAWTALK 928 · May 2019 ACCESS TO JUSTICE

“A majority of U.S. jurisdictions mandate lawyers to do pro of the legal profession here.” have a voluntary, annual pro bono bono work, but it is very much hourly goal for attorneys practising encouraged. South Africa in that state,” says Reena Glazer, the The Law Society of England and Attorneys in South Africa are Director of Pro Bono Institute’s Law Wales supports LawWorks, a charity required to provide 24 hours per Firm Pro Bono Project. that connects volunteer lawyers year of pro bono legal assistance to “The American Bar Association with people in need of legal advice, indigent members of the public. Pro Model Rule of Professional Conduct who are not eligible for legal aid and bono is administered by the Legal 6.1 on Voluntary Pro Bono Service cannot afford to pay and with the Practice Council, which is regulates sets an aspirational goal of 50 hours not-for-profit organisations that legal practitioners. annually, and many states have fol- support them. lowed. The Pro Bono Institute’s Law The Law Society of Northern Australia Firm Pro Bono Challenge, which Ireland says “the vast majority of There are two mechanisms that is an institutional, law firm-wide solicitors undertake and provide ‘strongly encourage’ lawyers to commitment to pro bono, asks what can be defined as pro bono conduct free work, the Australian that its signatory firms provide 3 or work within their local commu- Pro Bono Centre says. 5 percent of their billable hours or 60 nity and this work is often unseen, The National Pro Bono Target sets or 100 hours per attorney annually unheard and seldom recognised”. an aspirational benchmark of at to pro bono services.” And says the Law Society of least 35 hours of pro bono legal ser- Furthermore, she says, a minority Ireland’s Director General Ken vices per lawyer per year. The Target, of US jurisdictions have mandatory Murphy: which was introduced in April 2017, or voluntary reporting requirements “While there is no formal require- covers about 12,000 lawyers with 24 for lawyers’ pro bono service. ment that solicitors complete pro of the 25 largest Australian law firms bono work in Ireland, the undertak- being signatories. Signatories agree The British Isles ing of legal work for people with to provide an annual statement to None of the four law societies in legal needs but no capacity to pay the Centre on whether they have the United Kingdom and Ireland is part of the culture and tradition met the Target in the previous year.

63 ACCESS TO JUSTICE May 2019 · LAWTALK 928

Without the ability to have their voices heard, the marginalised are vulnerable for exploitation and abuse. We frequently see those who live in poverty in the criminal jurisdiction of the courts but seldom in the civil jurisdiction.

The Target is also incorporated into state and federal government’s arrangements for purchasing legal services from the private profession. It would appear that there is a greater need than ever for access to justice in Australia as the Law Council of Australia’s President Arthur Moses SC noted in a speech to the National Access to Justice and Pro Bono Conference last month, saying that, in 2015/16, community legal centres reported turning away almost 170,000 people due to a lack of resourcing. ▴ Tiana Epati, President of the New “Disadvantaged Australians are not the only ones Zealand Law Society impacted by the shortfall. Many simply can’t afford legal representation and if required to attend court, are forced to appear alone. Lives are being destroyed because successive of the Israel Bar Association Law, which governments have failed to invest in critical social justice stipulates that “The Bar Association is enti- infrastructure,” he said. tled, inter alia, to provide legal aid to those of limited means”. The Association says the India objective of the programme is to increase The Constitution of India directs the State to provide free accessibility to the legal system, and to legal aid to the poor and weaker sections of the society, to protect the rights of those who lack the promote justice on the basis of equal opportunity. means to hire professional legal services.

Singapore What could be changed The Law Society of Singapore’s Pro Bono Services Office in New Zealand? recently launched the Pro Bono Research Initiative (PBRI) With the new Chief Justice, Helen which provides research support to pro bono practitioners Winkelmann, addressing access to justice undertaking complex and/or important criminal and civil at her swearing-in ceremony last month, cases, including family law, before the courts. and the Coalition government holding a The PBRI aims to ease this pressure, while providing vol- series of summits and hui on the justice unteers with exposure to various cases before the courts. system in general, there’s no doubt that there is an appetite for change within the Hong Kong legal system. In the autonomous territory, a Pro Bono Committee was “Without the ability to have their voices established by the Law Society of Hong Kong in 2010 “to heard, the marginalised are vulnerable for review the pro bono work undertaken by the legal profes- exploitation and abuse. We frequently see sion, promote public awareness of the pro bono services those who live in poverty in the criminal under by the profession and encourage participation by jurisdiction of the courts but seldom in the the profession in pro bono work”. civil jurisdiction. But those in the lower The Committee overlooks various pro bono schemes socio-economic brackets have very real and projects in which members of the Law Society par- and often very complex legal needs,” ticipated in. Winkelmann CJ said. How that will be shaped may not be Israel known for some time. Schar Mitzvah, an Israel Bar Association Pro Bono Tiana Epati says she would like to see Programme, enables the implementation of section 3(2) a pro bono initiative in Aotearoa like they

64 LAWTALK 928 · May 2019 ACCESS TO JUSTICE

▴ Kate Davenport QC, President of the ▴ Len Andersen, President of the ▴ Dr Bridgette Toy-Cronin, Director of the New Zealand Bar Association Criminal Bar Association University of Otago Legal Issues Centre

have in Australia of an aspirational benchmark of 35 hours bucket than what we have at the moment. per annum. “Further, it does seem to me that the “I would particularly like to see a measurement of legal profession has priced itself out of the what each lawyer is doing around the country because means of those people who don’t qualify my experience is that pro bono is largely carried by the for legal aid but can’t afford legal services.” lawyers who do a lot of legal aid work anyway, so there’s a disproportionate section of the profession that does a Should pro bono be lot of this work for free, who are already pressured on mandatory? really low pay rates of renumeration. Len Andersen recognises the need for free “Access to justice is an issue, and the funding is not work but opposes any move to make it where it needs to be so the profession has a part to play mandatory. but what I am conscious of is that the goodwill of the He says those working in the criminal people who do more all the time is wearing a little thin.” area are often relying on inadequate legal Kate Davenport QC, who is the President of the New aid in the whole of their working time Zealand Bar Association, says senior lawyers should pitch needs to be devoted to paid work to make in more but that any changes to pro bono won’t, in itself, ends meet. solve all the access to justice issues. “I don’t think pro bono should be man- “Pro bono work is something that lawyers want to do. datory because not all lawyers can afford More senior lawyers ought to be prepared take on one to do it. I think it’s wrong, in the criminal or maybe two cases per year. But I don’t think that pro field, for defendants to rely on charity. The bono work is necessarily the answer to the legal aid crisis. reality is that there should be an appro- People on legal aid mostly have protection from costs. The priate legal aid scheme in place to ensure problem is, of course, that legal aid is only available to the that those people who need representation lowest of income earners and it is only a loan. can have it. “I think that, yes, legal aid fees for lawyers should be “I’d be pretty disturbed if there was an increased, but the payment of legal aid – civil and criminal expectation that criminal lawyers did pro – is a societal issue. Proper access to justice is important bono. It is good marketing for the large law to a properly functioning society. I recognise there are firms to do it and good on them for picking big demands on the vote justice budget but we need, as that up, but it’s not the same sacrifice as a profession, to recognise this and this is where pro bono it would be for criminal lawyers. It suits work is important. I do think legal aid could cover more those firms to do pro bono work because than it does. I also think that it could be a slightly deeper it is something they can trumpet about

65 ACCESS TO JUSTICE May 2019 · LAWTALK 928

what good corporate citizens they are and they have the resources to do it.” Where’s the incentive for lawyers? Len Andersen notes that some lawyers find it difficult to afford the time for cases that could, in the end, take a lot of effort and dedication. “Some of the cases that scream out for lawyers help are, in fact, hideously complicated,” he says. But also, he says, there just aren’t the finances available to criminal barristers to justify taking on free work. “The legal aid rates have been unchanged for about 15 years. And for most criminal lawyers a good part of their income is legal aid because that is the reality of practising in the criminal field. The rates certainly have to be increased and that is something we have been agitating for some time. “It would be a short-term solution if the gaps in the legal aid system were plugged because lawyers were prepared to provide free representation to those who could not afford a lawyer or obtain legal aid. “The problem is that not everyone could provide the free representation and there would be locations where the assitance would not be available either because of the size of the demand or the inability or unwillingness of lawyers to provide free representation. This means some defendants would not be able to obtain representation but the scale of the problem would be obsured by the prono bono representation provided in other localities. “I consider the governent has an obligation to provide for that, we have to do something legal assistance for those who can’t afford it through to make it easier for people who legal aid and the community law centres and pro bono need us to access us. And part of work from lawyers should not be a substitute for this that is looking at how we price legal obligation.” services and spread the burden of pro bono because my experience is Providing leadership that it is largely worn by lawyers Tiana Epati believes the Law Society has a strong role who already are stretched by the to play ensuring there are real solutions found to access restrictions of legal aid.” to justice, which will include a component of pro bono. “I firmly believe that the Law Society should take a The clearing house idea much stronger lead on access to justice generally. I don’t The New Zealand Bar Association’s know who better to bring all the threads together, to Working Group into Access to bring all the research that’s going on in different pock- I am hoping Justice released a comprehensive ets, at the universities and the various interest groups we will end up report in September 2018. right now. You could say the Government should be with a scheme Among its key findings are that, responsible for that but I think the Law Society is best that works in while there are numerous commu- placed to pull everything together and essentially lead the interests of nity-based initiatives and a growing the conversation. all – lawyers, demand for pro bono services, they “Funding is pretty important, but on top of that pro CLCs and are not co-ordinated through a bono has to be a component of access to justice. When consumers. national clearing house model. It I was campaigning for the presidency last year lawyers The demand is also found there was a lack of public raised concerns about the lawyer brand and were asking there and so is knowledge and education about me about how we ensure the value of the lawyer brand the willingness. existing available pro bono services, did not diminish and was protected. In my view, there I’m hoping and perhaps, somewhat concern- is an impact on the value of the lawyer brand if people the CLCs will ingly, a lack of knowledge within who have legal problems can’t access lawyers because be able to get the legal profession itself about such of the cost. funding to help initiatives and the opportunities for “Now, at some stage we have to take the responsibility make it work. lawyers to participate.

66 LAWTALK 928 · May 2019 ACCESS TO JUSTICE

managed to get up and running yet but it still might.” She says the clearing house could be based on the Australian model, where most states have one. “The benefit of this system is that it’s a lot fairer to allocate the work, not just between lawyers, but to make sure that the people who are actually getting the pro bono service are the people most in need. One of the issues is that pro bono is often done in New Zealand based on rela- tionships, and of course, people who have got relationships with lawyers tend to be the people who are the disadvantaged. “So, if it’s just about giving free services to an organisation that could pay for it, or because there’s some benefit back to the firm being associated with the free services, the question then arises over whether that is actually pro bono or is that free assistance for some collateral purpose.” She says most people’s view of what is actually pro bono is assisting those who do not qualify for legal In its five-point action plan, the consumers. The demand is there and aid and cannot afford lawyer’s fees. Bar Association’s recommendations so is the willingness. I’m hoping the “They have a bit of money but not include holding an annual Pro Bono CLCs will be able to get funding to enough.” Function to promote and encourage help make it work.” “The advantage of a clearing pro bono work by the Bar; continu- Ms Davenport is offering the house is that it gives structure ing to advocate for a clearing house irresistible carrot, albeit a sweet to who receives pro bono and it’s or similar project; and promoting version, of a chocolate fish (or even a way for a fair triaging of legal and supporting Community Law a packet) to those lawyers who suc- services to people based on need Centre pro bono projects. cessfully complete the civil legal and matching them up with law- Clearing houses have been aid form and go back on the legal yers who can help. And it’s also described as “pro bono matchmak- aid list. “There are an appallingly a visible place for people to go ers” between lawyers and clients small number of practitioners who and get that assistance, because needing pro-bono advice. are prepared to do civil legal aid in how do you go about finding a Kate Davenport says the Bar the main centres.” pro bono lawyer if you’re not a Association has been keen on well-resourced person? establishing a ‘clearing house’ for ‘Fair triaging of “I also don’t think that pro bono pro bono services for some time and legal services’ is the only answer to the access to has been talking to the Community Dr Bridgette Toy-Cronin is the justice problem, it’s just part of an Law Centres as they are “the right Director of the University of Otago arsenal of things we need to do. I people” to manage such a scheme Legal Issues Centre and a member of don’t think you can rely on people as they have centres around the the Bar Association’s Working Group donating services as a way to deal country and access to the clients into Access to Justice. with what’s really market failure; who need pro bono work. Dr Toy-Cronin is currently head- you have to look more carefully at She says the CLCs are very keen ing research into pro bono in New finding ways at making legal ser- on the idea as it “works very well Zealand to discover what lawyers vices more financially viable for a overseas”. consider to be pro bono and what much larger part of the population. “I am hoping we will end up they do for free. Pro bono can be really important with a scheme that works in the “I think it is a shame that the pro and effective but it’s a small band interests of all – lawyers, CLCs and bono clearing house idea hasn’t aid on the injury.” ▪

67 ACCESS TO JUSTICE May 2019 · LAWTALK 928

ACCESS TO JUSTICE Aotearoa's future courts: should online courts be our future?

BY BRIDGET IRVINE

civil jurisdiction, the reforms include the introduction of Modern technology has pushed legal jurisdictions an online court for the resolution of low value civil cases. to consider other ways of administering justice. The trend towards online courts has not been without Increasingly, there is a trend to deliver justice in an online criticism, with many claiming that it has been driven solely space, rather than in a physical courtroom. Tentative steps by the need to save money. The trade-off in this drive towards online justice have already been taken in New to reduce costs is that other fundamental principles are Zealand (eg, audio-visual links) but internationally, a more being overlooked, such as open and transparent justice, transformative change is on the horizon: online courts. and accessibility for all. The England and Wales Justice Advocates for online courts promise they will make justice Select Committee are currently receiving submissions that more accessible and affordable. But how do we know they respond to these criticisms as they are examining the will really improve access to justice and not merely provide access to justice implications of the court and tribunals a cost-saving scheme for the state? Empirical research is reform programme. Professor Richard Susskind, who was urgently required to answer many unanswered questions, Chair of the Committee that first proposed online courts and the legal profession need to be part of that process. in 2015, submitted that: In this article, I will briefly outline the first question and “In relation to all objections to online courts, what surely how the legal profession can contribute to the answer. matters above all else is that the decisions of our courts are fair (substantive justice), that the processes are fair The new way of delivering (procedural justice) and the participants feel that they justice: online courts are so. If online courts deliver substantive and procedural An online court allows litigants to resolve disputes entirely justice, I cannot find any countervailing principle of justice online. These courts provide an end-to-end online platform, that insists we should always favour our traditional system where the parties submit their evidence and arguments, which is accessible to very few and too often dispropor- attempt to negotiate a private or facilitated outcome, and tionate when it is invoked.” (3 April 2019) – if necessary – a judge will adjudicate on the matter. This Broader debates aside about how New Zealand should process is asynchronous, so the parties only go on to the balance these fundamental values, I agree that we must first platform at a time that suits them. However, the judge safeguard substantive justice. If online courts cannot deliver can request a virtual hearing before delivering a decision, fair outcomes, does providing a platform where a litigant which all parties must attend. Proponents argue that online can quickly file a claimreally equate to access to justice? courts increase people’s ability to access justice as a dispute can be filed at any time, from anywhere, and – most notably Can online courts deliver for this readership – without the assistance of a lawyer. actual access to justice? There are already online tribunals operating in In short, we don’t yet know. Research on online courts, some jurisdictions. In Canada, British Columbia’s Civil to date, has been limited to descriptive statistics ie, how Resolution Tribunal (CRT) was the world’s first fully many claims are filed, what is the pace of resolution, and integrated online tribunal. The CRT allows parties to user-testing ie, how satisfied were you with the experience. resolve their strata property disputes (Canada’s equivalent User-testing – in particular – contributes important knowl- to body corporates), small claims disputes, and motor edge as it puts the users at the centre of the design process. vehicle accident and injury disputes entirely online. But previous research with Litigants in Person (LiPs) in Singapore, Denmark, some American states, and Australia the traditional court structure (eg, Bridgette Toy-Cronin are also introducing online elements into their courts and “Keeping up Appearances: Accessing New Zealand’s Civil tribunals. The most ambitious version is currently being Courts as a Litigant in Person” (PhD Thesis, University attempted in England and Wales where a large-scale pro- of Otago, 2015)) suggest that there is good reason to be gramme of court reform across all jurisdictions, including concerned about whether online courts can actually criminal, civil, family, and tribunals has begun. In the improve access to justice. We know that LiPs have difficulty

68 LAWTALK 928 · May 2019 ACCESS TO JUSTICE

identifying what information is relevant and how to To explore the question of what might be lost or gained construct a claim in a logical and coherent way. In the by removing lawyers from the online court equation, we traditional court model, it is the role of the lawyer to take are going into the lab. We have set up an experiment a litigant’s information and translate it into a claim that where participants help a mock client prepare a claim can be understood by the court. If online courts do become for a fictional dispute and then file it in an online court. lawyerless, we need to know that the platform can carry We have already recruited our sample of lay people, which out that critical gatekeeper role. If not, removing lawyers helped us to understand how LiPs will use the platform from the process increases the risk that LiPs – with a very to formulate a claim. valid claim – will file their dispute in a way that the court We now need New Zealand lawyers – with three years cannot understand, so it is dismissed at the outset. If that post-qualification litigation experience of any kind – to happens, that is not access to justice. participate in the project. This will allow us to directly com- pare laypeople’s responses to lawyers – the gold-standard Can we find out whether online courts mode of litigating a dispute. Lawyers are busy professionals will deliver access to justice? but we really hope you will recognise the benefit of par- The University of Otago Legal Issues Centre is conducting ticipating in this project – both to create knowledge that a two-year multi-disciplinary, multi-institutional study, will help guide the future of Aotearoa’s courts and also to use empirical methods to try and answer these unan- so you can gain first hand insight by filing a claim using swered questions. The project is supported by co-funding an online portal. Interested lawyers can go to tinyurl.com/ from the New Zealand Law Foundation. We anticipate FutureCourtsResearch (or email [email protected]) that New Zealand will not be left out in the cold and will for more information, and to sign up to participate. ▪ soon follow the rapidly increasing trend towards online courts. Before New Zealand joins the trend, we want to arm Dr Bridget Irvine  [email protected] is a policy-makers and the legal profession with the empirical Postdoctoral Fellow at the University of Otago’s Legal evidence to guide modernisation and reform. Issues Centre.

69 ACCESS TO JUSTICE May 2019 · LAWTALK 928

ACCESS TO JUSTICE The Right Track A driving programme changing lives with an 80% success rate

BY NICK BUTCHER

is that instead of bombarding people driving decisions. Over a decade ago, a former with gory videos and similar shock But how can something that school teacher, John Finch, started a horror tactics, Mr Finch says his appears so simple be having such programme in Auckland designed to course took an educational and an impact? address driving offences committed team focus. As Mr Finch explains, it’s the by young people and recidivist drink There is a catch though in that practical aspects from the people drivers in a rehabilitative way. people only get one chance, so if who speak about the stark realities The Right Track has, as its name they reoffend they can’t go on the of bad decisions that helps create a suggests, put the lives of many programme a second time. change of psyche. people who may have otherwise Some of the people – most of “They listen to volunteer firefight- been jailed back on track. whom are under the age of 25 – who ers speak about their experience Before the programme came into have undertaken the programme with road accidents. They listen to action, Mr Finch had already been have been involved in incidents the mothers of victims. There are involved with a private training that have caused road deaths. Drink- sessions on brain injuries, they hear establishment that focused on edu- driving, texting and crossing centre from the police’s serious crash unit, cating youth who had experienced lines and driving head-on into an they visit spinal wards and meet social problems. oncoming vehicle and street racing people who are paralysed as a result Many of these young people had were some of the causes of these of driving offences and also meet the also come to the attention of the deaths. medical staff who deal with these police, including for drink driving “Some of these young people have injured people,” he says. offences, and officers were interested just made bad decisions. They’re There are also visits to the court, in what Mr Finch could do further to not bad people but they’ve made including the cells, viewing a police curtail some of the carnage that was horrendous mistakes that they’ll van, along with observing an actual occurring on the roads. have to live with for the rest of their court sentencing. After about a year of international lives,” John Finch says. “They participate in a sentencing research, Mr Finch concluded that The Right Track also targets re-enactment with a real judge, many programmes that supposedly adults and people who are deemed lawyers, court staff, and a police rehabilitated drivers were just mon- recidivist offenders. Each person prosecutor,” Mr Finch says. ey-making ventures, as recidivism who takes part in the 42-hour pro- Interestingly, Mr Finch says the was far too common. They simply gramme, which lasts between five large number of people who come were not having much effect. and eight weeks, is expected to be through the programme are sur- Mr Finch, who is the director accompanied by a whānau support prised by what they find out about of the EDUK8 Trust that runs The person. themselves. Right Track programme, says it has There are nine sessions which “A common situation is that many an 80% success rate in preventing are held on midweek evenings and participants say they had no idea those people on the course from all day Saturday. The sessions are how working in a team environment reoffending. Judge Phil Recordon holistic in the sense that they utilise would help because many of these is the chair of the EDUK8 Trust. cognitive learning therapy that Mr people admitted that they’d never Finch says creates a realisation of really been in a team. At the start What’s different about the effects that a person’s driving they tend to view the police as not The Right Track…? behaviour has initiated. It’s about wanting to help them but out to get The difference to most programmes understanding the impact of their them. They actually get to know

70 ACCESS TO JUSTICE

Department. The latter two enlisted the ‘traffic cops’ whose sole and daily job was traffic law enforce- ment. Chances were in those days that runners of red lights, dangerous drivers or speeding drivers would sooner, rather than later, be spotted, stopped, spoken to, warned, and fairly often, prosecuted. We learnt from being nabbed early, and then jumped on firmly,” he says. As Judge Recordon says, the motor vehicle can quickly become the ultimate weapon. “So if we can save someone from behaving badly with a car, whether it’s by drinking or driving too fast, we’ve done our job,” he says. Barrister Marama Mariu is one of several lawyers involved in the programme and endorses it wholly. “I have seen the positive impact the participants have had by attending Te Ara Tutuki Pai (The Right Track). The programme helps broaden their minds to realise how much their actions impact their the police, share coffee with them don’t want to reoffend as they realise it is not something whānau and wider community. This and build a connection. There’s a to be proud of. It’s an interesting dynamic to witness,” realisation then opens the door for massive mind shift in relation to he says. genuine and positive changes for attitudes towards the police,” he Usually it is through a combination of the family group their future,” she says. says. conference and lawyer representing a person that results And Steve Bonnar QC, who has in them being admitted to the programme. supported a young driver through The Judge behind “Some people are motivated by their sentence being, the programme, also vouches for the the programme perhaps, more lenient if they accept entering the Right good work it is doing. Judge Phil Recordon has been the Track programme and go through the motions, but that’s “It’s a superb programme which chair of the EDUK8 Trust since it generally a temporary thought process, and they change delivers excellent results. The amount was formed. their outlook. If we start off with 16 people, usually of work and resources which go in “This programme works because around 14 of them will make it through successfully. It to the programme, including the it is well planned, thorough, inter- takes a lot of commitment but it works,” he says. volunteered time of many people, esting and educational, and I’m not such as judges, lawyers, medical the only judge who thinks this,” he Personal interest professionals, first responders and says. Judge Recordon has a vested personal interest in the others, is truly impressive. The Judge Recordon says often in his programme and a lot of empathy for what people under- results, in terms of the extremely role he’ll see someone at the begin- taking the course are going through. low recidivism rates for those who ning of the process before the court, “Something I do share with groups is that as a young complete the programme, speak for and then at the end. man I made a number of driving decisions I now shudder themselves,” he says. “Some of the participants at the about and regret. Within an Auckland much smaller in The Right Track progamme is run start are a little blasé about things, area and numbers than today (1960s to the 1980s), there through several court jurisdictions even when they’re shown the cells, were three pretty separate police groups. The regular including Waitakere, Auckland, but when they reach the end of the police force with their focus on crime other than traffic; North Shore, Manukau, Hamilton programme, they’re so different. The The Ministry of Transport which was nationwide. and Christchurch and Southland attitude change is incredible. They “There was also the Auckland City Council Traffic District Courts. ▪

71 ACCESS TO JUSTICE May 2019 · LAWTALK 928

ACCESS TO JUSTICE Some criminal

justice Outcomes for categories of adult offences outcomes prosecuted to a conclusion in 2018 in 2018 Category Outcomes Convicted Other Proved Not Proved Most likely to be convicted Traffic & vehicle regulatory 39,280 91.7% 1.5% 6.7% BY GEOFF ADLAM Theft & related offences 21,650 81.1% 3.2% 15.4% Offences against justice, 42,564 80.9% 1.1% 17.9% govt security Just over three-quarters of the cases in District and High Courts where adult prosecutions had an outcome resulted in Dangerous or negligent acts 11,927 78.6% 10.6% 10.6% conviction during 2018. Around the country there were some Property damage, 7,877 72.2% 9.7% 16.8% noticeable variations in conviction rate when analysed by environmental pollution ethnicity, gender, age, sentencing court and the type of offence. Least likely to be convicted Statistics New Zealand has released criminal conviction and Sexual assault & 5,362 51.5% 0.5% 46.5% sentencing information for the 2018 calendar year from data related offences provided by the Ministry of Justice. The information for a centre Miscellaneous offences 3,669 56.3% 6.1% 37.4% covers both District Court and High Court (where applicable). Acts intended to cause injury 23,295 63.4% 8.4% 27.5% Of the 208,356 cases in District and High Courts where adults were prosecuted, 76% had an outcome resulting in a conviction. Homicide 223 64.6% 3.1% 29.1% A further 4% of charges were “other proved” but not recorded as Abduction, harassment 5,313 64.9% 4.5% 29.7% convictions – these included where Police offered diversion or the Total Outcomes 208,356 76.1% 3.7% 19.8% person was discharged without conviction under section 105 of the Sentencing Act 2002. Most of the rest – 20% – were “not proved”. This includes where the person was acquitted or discharged or where Outcomes for single adult offences the charge was dismissed or withdrawn. A very small proportion prosecuted to a conclusion in 2018 of cases (“other”) resulted in a stay of proceeding, the person being found unfit to stand trial or acquitted on account of insanity.

Adult outcomes in New Zealand courts, 2018 Category Outcomes Convicted Other Proved Not Proved Outcome Total % Total Most likely to be convicted Convicted 158,563 76.1% Exceeding prescribed 17,594 95.4% 0.8% 3.7% Other proved 7,807 3.7% content of alcohol or other substance in vehicle Not proved 41,232 19.8% Driving licence offences 17,360 89.9% 2.2% 7.8% Other 754 0.4% Driving causing death 91 86.8% 7.7% 5.5% Total 208,356 100.0% Exceeding legal speed limit 922 86.8% 2.4% 10.7% Convictions by type of offence Theft (except motor vehicles) 13,563 86.5% 3.3% 9.9%

Perhaps unsurprisingly, driving offences have the highest Least likely to be convicted conviction rate. Over or under. Yes or no. Against the overall Abduction and kidnapping 309 42.4% 0.3% 56.6% conviction rate of 76.1%, 91.7% of all traffic and vehicle reg- ulatory offences resulted in conviction. The highest rate for Environmental pollution 269 48.7% 5.6% 45.7% any single offence was exceeding the prescribed content of Attempted murder 6 50.0% 0.0% 0.0% (50% "Other") alcohol or another substance limit in a vehicle, where 95.4% of prosecutions resulted in conviction. At the other end of the Import or export illicit drugs 270 52.2% 5.9% 41.9% spectrum, just over half – 51.5% – of sexual assault and related Offences against 11 54.5% 0.0% 45.5% offences resulted in conviction, with 46.5% being “not proved”. government security

72 LAWTALK 928 · May 2019 ACCESS TO JUSTICE

Differences by court Looked at on a court-by-court basis, there was a difference of over 20% between the proportion of cases which resulted in Proportion of outcomes resulting in a a conviction – from convictions in 87.5% of all prosecutions in “not proved” finding, highest the Dargaville District Court down to 64.7% of all cases in the Total Number Percent Courts outcomes not proved not proved Wellington District and High Courts. Highest Proportion of outcomes resulting in a conviction Wellington 7,263 2,198 30.3% Total Number Percent Courts outcomes Convicted Convicted Auckland 21,217 5,730 27.0% Gisborne 4,082 999 24.5% Highest Blenheim 2,237 539 24.1% Dargaville 464 406 87.5% Timaru 2,334 546 23.4% Waihi 686 591 86.2% Opotiki 833 709 85.1% Lowest Huntly 1,214 1,027 84.6% Dargaville 464 44 9.5% Pukekohe 2,420 2,047 84.6% Waipukurau 281 29 10.3% Westport 374 39 10.4% Lowest Oamaru 614 66 10.7% Wellington 7,263 4,698 64.7% Waihi 686 74 10.8% Queenstown 901 602 66.8% Auckland 21,217 14,456 68.1% Greymouth 1,034 706 68.3% Ethnicity and sentences Blenheim 2,237 1,576 70.5% Statistics for adults convicted by sentence type show that Māori adults comprised 46% of adults convicted of an offence in 2018 Queenstown District Court had the biggest proportion of “other where ethnicity was known, but made up 57% of adults who proved” (diversion or discharge without conviction) outcomes were sentenced to imprisonment. The Statistics New Zealand in 2018, at over 20% of all outcomes. At the other end of the information shows the most serious offence. Of people of Māori scale were Rotorua and Whanganui District and High Courts. ethnicity who were convicted of an offence during 2018, 16.7% Nationally, 3.7% of outcomes were in this category. were sentenced to imprisonment for their most serious offence. In contrast, 11.2% of Pacific People, 9.9% of Europeans and 8.8% Proportion of outcomes resulting in of other ethnicities were sentenced to imprisonment. an “other proved” finding The late release of Census 2018 information means Statistics Total Number Percent New Zealand data on ethnicity relates to 2013. It appears to show Courts outcomes other proved other proved that around 74% of the population identified as European or Highest “other” ethnicity, 15% as Māori, 12% as Asian and 7% as Pacific Queenstown 901 188 20.9% (with people often identifying with more than one ethnicity). Kaikoura 109 15 13.8% Adults convicted by sentence type Alexandra 457 47 10.3% (most serious offence) Greymouth 1,034 102 9.9% Levin 2,109 178 8.4%

Lowest Sentence European Māori Pacific Other Unknown Total Rotorua 6,885 110 1.6% Imprisonment 2,170 4,217 614 223 143 7,367 Whanganui 3,394 55 1.6% Community 9,857 12,026 2,528 926 910 26,247 Whangārei 5,768 98 1.7% Monetary 7,549 5,953 1,677 1,103 3,997 20,279 Hastings 5,735 101 1.8% Other 1,306 1,594 368 158 223 3,649 Opotiki 833 15 1.8% None recorded 1,004 1,432 315 117 305 3,173 Total 21,886 25,222 5,502 2,527 5,578 60,715 Dargaville District Court had the lowest proportion of “not proved” outcomes in 2018 at 9.5%, while Wellington District and High Courts had the highest proportion of “not proved” outcomes (30.3%). Nationally, 19.8% of outcomes were not proved.

73 ACCESS TO JUSTICE May 2019 · LAWTALK 928

Proportion of sentences imposed Age and Gender (most serious offence) Men made up 78.3% of adults convicted of an offence in 2018. On an age basis, 49.8% of men convicted were aged under 30, and 48.7% of women convicted were aged under 30. European males aged under 30 comprised 46.1% of all European male

Sentence European Māori Pacific Other Unknown Total convictions and those over 40 comprised 30.0% of all European Convicted 36.0% 41.5% 9.1% 4.2% 9.2% 100% male convictions. Māori males under 30 comprised 54.1% of all Imprisonment 29.5% 57.2% 8.3% 3.0% 1.9% 100% Māori male convictions and those over 40 comprised 23.0% of Community 37.6% 45.8% 9.6% 3.5% 3.5% 100% all Māori male convictions. Pacific males under 30 comprised Monetary 37.2% 29.4% 8.3% 5.4% 19.7% 100% 52.1% of all Pacific male convictions and those over 40, 21.6% of all Pacific male convictions. Males of other ethnicities under Other 35.8% 43.7% 10.1% 4.3% 6.1% 100% 30 comprised 49.4% of all other male ethnicity convictions and None recorded 31.6% 45.1% 9.9% 3.7% 9.6% 100% those over 40 comprised 22.2%.

Sentence imposed on conviction (most serious offence) Adult convictions in 2018 (most serious offence)* Number Percent Number Percent Age range Female Female Male Male 17 to 19 1,188 9.2% 4,479 9.4%

Sentence European Māori Pacific Other Unknown 20 to 24 2,459 19.0% 9,802 20.7% Imprisonment 9.9% 16.7% 11.2% 8.8% 2.6% 25 to 29 2,671 20.6% 9,351 19.7% Community 45.0% 47.7% 45.9% 36.6% 16.3% 30 to 39 3,458 26.7% 11,572 24.4% Monetary 34.5% 23.6% 30.5% 43.6% 71.7% 40-plus 3,167 24.4% 12,102 25.5% Other 6.0% 6.3% 6.7% 6.3% 4.0% Unknown 209 None recorded 4.6% 5.7% 5.7% 4.6% 5.5% Total 12,969 100.0% 47,419 100.0% Total 100% 100% 100% 100% 100%

There were also noticeable (but less pronounced) regional Legal Aid differences when it came to the Justice Service Area where a Information released recently by Justice Minister Andrew Little sentence was imposed. For example, while 16.7% of sentences in response to a series of written parliamentary questions imposed on Māori convicted for their most serious offence were from National MP Mark Mitchell shows that in the year to 11 imprisonment nationally, in the Otago Justice Service Area March 2019 there were 74,464 recipients of legal aid, of whom 24.7% of Māori were sentenced to imprisonment, while in the three-quarters received legal aid for criminal proceedings. Legal Northern Wellington Justice Service Area, 10.4% were sentenced aid lawyers also had an average of 39.9 open legal aid cases to imprisonment. Obviously population sizes and other factors each month. will have had an impact on these statistics. Recipients of legal aid services by area of law, year to 11 March 2019 Highest proportion of sentences imposed by Law type Recipients Percent of total Justice Service Area (most serious offence) Civil 1,410 1.9% Ethnicity European Māori Pacific Other Criminal 56,237 75.5% Highest proportion Family 16,674 22.4% Imprisonment Wellington Otago Taitokerau Bay of Waitangi 143 0.2% 14.1% 24.7% 18.6% Plenty 14.4% Total 74,464 100.0% Community Otago Northern Taranaki/ East Coast 49.0% Wellington Whanganui 44.2% In response to another question Mr Little also provided infor- 55.1% 52.5% mation on the ethnicity of legal aid recipients. The ethnicity of Monetary Southland Southland Otago Southland most – 57.8% – was “unknown”, with Māori comprising 18.5% 39.9% 28.6% 34.5% 68.5% and NZ European/Pakeha, 13.5%. No other ethnicity contributed Lowest proportion over 2%. While very incomplete, it is believed to be one of the few times information on the ethnicity of legal aid recipients Imprisonment Nelson / Northern Northern Southland Marlborough Wellington Wellington 1.4% has been publicised. 5.9% 10.4% 6.4% Community Taitokerau Waikato Canterbury Taranaki/ Open cases by area of law 40.8% 41.7% 43.5% Whanganui Information on open legal aid cases by area of law at 11 March 19.4% 2019 showed a very high proportion (68%) of open civil legal Monetary Otago Wellington Taitokerau Northern 28.7% 17.1% 17.5% Wellington aid cases were in Wellington. Open criminal and family legal 30.9% aid cases tended to match the regional population size.

74 ACCESS TO JUSTICE

Imprisonment Information released by the Department for Corrections shows that at 31 December 2018, New Zealand had a prison population of 9,782 of whom 93% were male. Remand prisoners made up 30.1% of the prison population. Comparison with the population on 31 December 2013 shows a 85% increase in the number of remand prisoners, but just a 2.6% increase in the number of sentenced prisoners.

New Zealand prison population, 31 December 2018 Category Male Female Total

As at 31 December 2018 Remand 2,714 226 2,940 Sentenced 6,388 454 6,842 Total 9,102 680 9,782

As at 31 December 2013 Remand 1,466 89 1,555 Sentenced 6,259 409 6,668 Total 7,725 498 8,223

Of those in prison, 33% were aged under 30.

Age of those in prison, 31 December 2018 Age Proportion 2018 Under 20 2.6%

Open legal aid cases at 11 March 2019 20 to 24 12.2% by area of law and region 25 to 29 18.2% Region Civil Criminal Family 30 to 39 30.1% Auckland 447 11,252 3,356 40 to 49 20.0% Bay of Plenty 52 3,723 1,790 50 to 59 11.0% Canterbury 67 4,290 2,239 60-plus 5.9%

Gisborne 6 1,212 248 Over half those imprisoned were of Māori ethnicity. Comparison Hawke’s Bay 17 1,727 651 with the situation five years earlier shows a slight increase in the Manawatu-Whanganui 4 1,817 1,092 proportion of Māori and prisoners of other ethnicity, while the Marlborough 1 293 131 earliest available statistics show that from nine years ago there has been a rise in the proportion of prisoners of other ethnicity. Nelson 35 675 453 Prisoners of Asian ethnicity were recorded separately until the Northland 21 1,435 927 30 June 2016 statistics, when they were included in “Other”. Otago 12 1,188 789 Ethnicity of those in prison, 31 Southland 18 625 335 December 2018, 2013 and 2009 Taranaki 14 676 638 Proportion Proportion Proportion Tasman 0 0 0 Ethnicity 2018 2013 2009 Waikato 58 2,840 1,910 European 31.7% 33.9% 33.5% Wellington 1,572 3,616 1,932 Māori 51.0% 50.3% 50.8% West Coast 1 381 99 Pacific People 11.2% 11.4% 11.9% Unknown 1 6,852 9 Other 4.6% 3.7% 3.4% Total 2,326 42,602 16,599 Unknown 2.5% 0.7% 0.4%

75 PRACTICE May 2019 · LAWTALK 928

PRACTICE Survival of the healthiest An integrative approach to fixing what ails law firms

BY EMILY MORROW, ALLI MCARTHUR AND PAUL STEELE

The areas of expertise healthiest firms know how to attract It’s a tough world out there A law firm that wants to take an new client business and they also now in the legal marketplace. integrative look at how it is func- know how to retain that work by Increasing fee and economic pres- tioning would be well advised to exceeding client needs. sures, strong competition to hire the consider the following: most capable young lawyers, baby The management/ boomers retiring without adequate The people/culture dimension: financial dimension: succession plans in place, changing Since law practices are professional Once a decision has been made technology, artificial intelligence, service providers whose people are to make a change, the most dif- culture change, and disruptive their most valuable “assets”, people ficult part starts – managing that legal service provision offerings management, supervision and train- change and its process. Good plan- put enormous pressure on lawyers ing are key components of long term ning and open, timely and clear and law offices. Only the healthi- “wellness”. This includes interaction communication ensure smooth est, fittest law firms will not only and communication within the firm, implementation and transition survive, but actually thrive in such work style preferences, delegation, in any change process. Analysis an environment. Like a patient in leadership, partnership/directorship of staff knowledge and skills is a medical practice, some firms will structure, business development also essential so that the change suffer from high blood pressure, capabilities, decision making and process can be adapted to suit clogged arteries, lots of inflamma- all of the other “soft skills”. It also individual needs. Finally, financial tion and other chronic sources of includes understanding the impor- management is key to success. If dis-ease. Successfully diagnosing tance of culture within a firm and the numbers don’t add up, the and “curing” what ails a firm will the extent to which a firm’s existing outcomes won’t be good. differentiate thriving firms from culture aids or hinders how well a their competitors. firm functions. The people dimen- The common “symptoms“ If your law office were a patient sion encompasses the individuals, As to each of these three “dimen- with symptomatic medical prob- the organisation and the organisa- sions” (people/culture, marketing/ lems, you could diagnose and tional culture. service provision and manage- treat such problems in a piecemeal ment/financial), law firms exhibit manner, going from one medical The marketing/service common symptoms when things practitioner to another and hoping provision dimension: are not going well. to find the right treatment(s). Developing new client relationships For example, in the people/cul- However, you might be better and enhancing existing client ture dimension, problems present served to work with an integrative, relationships are key elements of around poor internal and external multidisciplinary medical team that a really healthy firm. By achieving communication, inefficiencies, high could efficiently and accurately operational efficiencies through turnover, low trust professional diagnose what ails you and how to leveraging a firm’s collective relationships, poor leadership, cure it. The same is true if you seek knowledge and IP and selecting inadequate succession planning, external assistance in addressing and enthusiastically deploying best inefficient delegation, internal the “symptomatic” problems that of breed systems, a firm can give conflict and the like. Such problems routinely plague lawyers and law clients optimal service on a cost tend to fester and feed upon each offices in New Zealand. effective and profitable basis. The other if not addressed in a timely

76 LAWTALK 928 · May 2019

and appropriate manner. If your people are not working A comprehensive, integrative approach well together, all of the strategic planning in the world A comprehensive, integrative approach to diagnosing will be for naught. Similarly, if your firm’s culture is what’s going on within a law office and systematically problematic, it will undermine all of your efforts to addressing problems is dramatically different from a change things. The old adage that “culture eats strategy piecemeal, ad hoc approach. In an ad hoc approach, for breakfast” is all too true. typically an external consultant is engaged to address In terms of marketing/service provision, problems a particular problem such as the functioning of the can present as poor external communications or low firm’s board, interactions between partners, falling consideration of clients’ or prospects’ ease of use of lawyer retention rates, technology needs, succession the firm’s services. Firms may misunderstand “brand” planning, internal conflicts, financial/billing/expense or be ineffective at articulating the points of difference control concerns etc. the firm offers. Operationally not using best of breed The consultant focuses on that problem, diagnoses systems or failing to deploy and embrace the capa- what needs to be done and suggests some remedial bilities of those systems can be major brakes. Often steps. An individual consultant, regardless of his/her skill firms are internally siloed which prevents them from and experience, will lack the full, broad spectrum skill getting the best of their collective knowledge into use set needed to address all of the interrelated problems for everyone. that might be present in a firm. For example, someone In terms of management/financial oversight, many who focuses on the “people/culture dimension” is firms find themselves doing things because that is the unlikely to have a highly developed skill set in terms way it has always been done. Key staff are too busy of IT and technology needs. Similarly, someone with a or too involved to take a step back and look at ways background in IT and IT service providers is unlikely to to improve processes and make the changes. Although be particularly adept at internal law firm management it is often easier to “bury one’s head because we are or change management. And so forth. You just won’t too busy”, the reality is that change is vital to improve find all of the needed capabilities in one person. efficiency and cost savings. Such changes enable a firm A firm could, of course, bring in a series of individual not only to survive but move forward into the next consultants with different areas of expertise and work phase of its life cycle. with them one by one. Although this might enhance

77 PRACTICE May 2019 · LAWTALK 928

outcomes, it’s unlikely these individuals will work to enhance efficiency, increase fees, manage expenses together as a team. There will be “slippage” and a lack and better utilise human and other resources. Again, of coordination in approach, skills and outcomes. It is these financial issues will become part of the change only by bringing in a capable, experienced, integrative management process. team of individuals with complementary capabilities Not surprisingly, all three “dimensions” include a process that the full spectrum of issues can be diagnosed and of interviewing key participants in a firm. A consultant “cured”. A firm gets only one chance to do this right the needs to understand (that is, really understand) the status first time. After that, it’s a mop up/corrective operation. quo to identify opportunities for enhancement. In an inte- Let’s assume a firm decides to take an integrative grative approach, the external consultants often coordinate approach and hire a team of external consultants, one the interviewing/diagnostic phase of the process to reduce of whom will focus on the “people/culture dimension”, the time and expense involved, get high quality “data” and another will focus on the firm’s IT and service provi- determine how to use the information that is gathered. sion needs and the third will focus on the financials, Much like a patient with many symptoms presenting at management and change management process. Here’s a multi-speciality medical centre, a firm’s ailments can be what the process might look like: best diagnosed by a team of specialists who understand each others’ skills and areas of expertise. These specialists The people/culture dimension consultant: ideally will have worked together and be in sync on philos- It is always helpful to start by understanding a firm’s ophies and methodologies. Collectively they can determine interpersonal and organisational dynamics and culture. the reasons for the pain, offer a better care plan and get A people dimension consultant will often start the the highest quality outcomes for the patient/firm. Further, process by interviewing firm leaders/managers and because each of the consultants is an independent profes- a cross-section of other individuals to get a sense of sional (as opposed to all working for a single consultancy what is really going on and what needs to be done. firm), they bring a variety of coordinated and independent Such interviews are typically done on a confidential perspectives. It’s not a one size fits all approach. basis to enhance the quality of information provided. Typically, the cost of engaging an integrative con- Next steps could include group discussions to nut out sultancy approach to problem-solving is lower than the issues in more detail and work with individuals working on a piecemeal basis with multiple consultants. to identify practical, achievable next steps, including The firm benefits from natural economies of scale, a who, what, when and how things should be done. Such common knowledge base, excellent communication and discussions often identify other issues that need to be a shared understanding of optimal outcomes. addressed including financial concerns, IT, leadership, In today’s marketplace where what got a firm to where management and the like. it is now will no longer get a firm to where it needs to be, an integrative approach works particularly well. It’s a The marketing/service provider consultant: different, smarter approach, and it gets better outcomes. ▪ As with the people dimension, it’s important to first understand the current situation and what the issues are Emily Morrow  [email protected] is a people/ before embarking on a set of suggested actions. Surveys culture dimension consultant who provides tailored and interviews are essential not only to understand consulting services for lawyers, barristers, in-house the issues but also to improve the prospects for buy-in. counsel, law firms and barristers’ chambers. She Follow up will typically involve recommendations for focuses on the non-technical skills that correlate with changes and training where required. Often firms will professional success. She can be reached at www. have people who emerge as enthusiasts for the particular emilymorrow.com area or system and they should be supported by the firm as the internal champions to assist others. Alli McArthur  [email protected] is a project man- agement/financial consultant who has been involved The project management/financial consultant: in the legal industry for many years having worked in Understanding the firm and where it sees itself over the management for a number of leading New Zealand next 2-5 years and beyond is essential before any change law firms. She has a background in IT, training, change process can start. Interviewing key staff will identify and project management. where the points of pain are and how changes should be made to ensure staff are engaged in and able to see the Paul Steele  law2web.co.nz is a marketing/service benefits of change. A carefully managed change process provider consultant. His career includes time as a can then be put in place. Each aspect of the change practising lawyer, a sales representative for both the would then be managed as a project involving key staff major publishers and over 10 years as a law practice and “champions” who would assist in the success of consultant. Paul also leads businesses specialising in that change. Such a consultant will also take a close marketing and website hosting and development, and look at the firm’s financials to identify opportunities precedent and knowledge management.

78 LAWTALK 928 · May 2019 PRACTICE

PRACTICE

Lawyers missing opportunity to be thought leaders

BY PETE BURDON

media attention and show this on all platforms. The third Law is one profession where there are major oppor- party endorsement this offers is priceless, particularly in tunities for lawyers to become recognised thought leaders today’s world where every firm has its own voice and is in their areas of expertise. This allows them to stand hard to differentiate against. above their competition when it comes to reputations This has become a problem for most industries. Have and visibility. you ever tried to find a good web provider, real estate But very few take advantage of this, leaving the door agent or financial advisor? If you don’t know one or have open to the few who know the value of thought leadership someone recommended, it’s hard to distinguish the good and how to achieve and maintain it. from the bad. That’s where thought leadership comes in. A skim through the websites and social media platforms If you are known as the expert, and not just because you of law firms of all shapes and sizes highlights this. While say you are, and have a few testimonials on your website, they generally look professional and contain interesting you will get far more clients. information, there’s nothing to suggest they are a better option than the firm down the road. How do you become a thought leader? It’s important to know what I mean by the term, thought What would change this? leader. It’s someone who is well known and respected for There are many ways to stand out from the competition. their expertise and is often seen talking about it. An example The most obvious, easiest and cheapest is to get news of a high-profile thought leader would be Donald Trump

79 PRACTICE May 2019 · LAWTALK 928

before he became President. He was a real Media love anything that relates to something that’s estate thought leader. He was often in the already in the news. This is where lawyers have a huge media talking about it, he wrote a book and opportunity. If any topical story has a legal angle, you was regularly seen presenting on the topic. can get coverage. Just think of recent issues: the mosque Lawyers don’t need to be like Donald attacks in Christchurch, the Capital Gains Tax, housing Trump to achieve this status. You will have shortages and business confidence to name a few. your own niche. Your legal focus may be When there’s something in the news that you could employment, tax, construction, immigration comment on, or suggest your own angle on, you can get or something else. Your aim would be to covered. Pitching a guest article on these issues or any become a thought leader in that niche. This other advice you could offer people in your niche is also doesn’t have to include regular appearances a great option. The possibilities are endless and remember on television or writing your own book, that this is all totally free of charge and does wonders to although it could. your reputation. That’s because you have been endorsed by the media outlet running your content. Anyone can write Start with the news media a newsletter story, but hardly anyone is writing for media. The key is to do things your competitors are not doing and growing your profile outside How do you communicate with media? the standard company newsletter, social Most media will tell you email is their preferred commu- media posts and the news section on the nication tool when it comes to receiving story or article website. The best place to start is with the pitches. This is because they can look at it when they have news media, and specifically, the niche time and they don’t like being interrupted by a phone call. media frequented by your target market. For any reporter or editor who may be someone you can Editors of trade publications and industry see yourself dealing with a lot, it’s a good idea to contact magazines are often crying out for material them for a chat, or better still, meet them for a coffee to fill their pages and would probably love to get to know them. They won’t always take you up on to hear from you. the offer, but they will remember you. Ask them for their Often niche magazines are staffed by an preferred communication tool, because there are still some editor alone, so they welcome approaches who prefer a phone call, and very few, but from people with relevant material that some, who like social media. could be featured. Even though circulation When you do pitch someone through numbers will be lower than the higher email, tell them in the email why their profile outlets, if it’s your niche, it’s gold. audience would be interested. Keep this This isn’t to say you should not target very brief, possibly with a few bullet points. bigger media outlets. It will all depend on Press releases can be a good idea to send what you have to offer. For example, if you to some media, but only if you have time are an employment lawyer, your advice for and still include a personal pitch. These businesses around new industrial relations can be good for niche media as sometimes laws could be of major interest to business they will literally cut and paste it into their reporters at metropolitan daily newspapers. The key is to publication. do things your A press release is less important for What do media want? competitors broadcasting media, and even major When I was a reporter, I was always are not doing metropolitan newspapers. They tend to use amazed at how so few people understood and growing your pitch as a carrot and then contact you what I needed for my stories. This is a your profile for an interview. However, if it’s something common complaint of all media. outside the big and you have the time, a press release What most people forget is that there standard certainly wouldn’t hurt. is one question that reporters, editors company But don’t forget the difference between an and producers ask when they decide newsletter, article and a news story. You would never whether your story idea has merit. “Will social media send a press release if you are proposing a this be of interest to my audience?” That’s posts and guest article, because if they accept your it, simple. But you’d be surprised by how the news article idea they would then ask you to write many people don’t keep this in mind when section on the it. Articles are also written in first person, looking for free publicity. website. while press releases are in third person.

80 LAWTALK 928 · May 2019 PRACTICE

PRACTICE Retiring from Planning If you want to start growing yourself as a practice thought leader through the news media, there are a few simple steps to take. Firstly, you need to identify the media to target The train journey and research them to see what sorts of stories and articles they run. For example, of professional life lots of magazines publish guest articles, but some don’t. When you find the best media outlets, find the relevant person and contact them BY PETER directly. For a daily newspaper this would MCMENAMIN be a specialist reporter who covers a par- ticular area like business, while a niche magazine may be the editor. Try to avoid email addresses like news@... as they often It’s a journey for which you have a one-way ticket. get lost and it’s impossible to personalise At the beginning you strive to get professional qualifica- messages to such addresses. Start small tions, a job, perhaps a practice. And once on board it is a with a few people and slowly grow the continuum of events, places and people, all of whom seem amount of media people you have as important. The stops are usually brief and intermittent, targets. but nothing seems to stop the locomotive of practice and its demands. But one day, the ticket expires, and there is The vital last step a stop at which you must leave the train, never to return. While most of the hard work is done when When and where will that be? Will you make that choice, you appear in the media, the most impor- or will some one, or some thing, make it for you? tant step comes next. You need to make It is important, no – essential – to look ahead and have a the coverage prominent on your website, plan for the day when you leave the train. Recognise and share it on social media sites, through realise that as a work junkie you need to wean yourself newsletters and in marketing material. off the adrenaline of practise and prepare for another life. That’s because lots of people won’t see And yes, there is another life, and just as you needed you in the publication or on the broadcast training to practise, you need preparation to retire programme, but you can make sure they successfully. see you at a later date. Failure to recognise your professional limitations has This is a great way to stand out from serious implications for yourself, your colleagues, and your the competition. There are other ways clients. We have all no doubt witnessed the spectacle of the you can do this too, like writing a book, grey or white headed practitioner, bent over, shuffling into or contributing a chapter in one. But to a law office, picking through some files, perhaps making a get your thought leadership status off phone call, and then wandering around looking for some- the ground, growing your reputation and thing apparently missing, when what is really missing profile through the news media is a great is the realisation that he/she is “over it”. And sometimes place to start. ▪ colleagues are too embarrassed to tell the person con- cerned that it is “time to go”. We all have a “use by date” Pete Burdon is founder and head media professionally, and we should not embarrass ourselves, trainer of  PeteBurdon.com and Media our colleagues or our clients by failing to recognise it. Training NZ. He’s a former daily news- Ignoring the date opens the door to a potential liability. paper reporter and government press secretary. Pete helps professionals and The plan business leaders transform themselves 1. Accept that you will retire and that you are not into respected and recognised thought irreplaceable. leaders through the news media and other 2. Formulate a date on which you think you might retire. channels. For more on Pete visit  www. 3. Discuss this with first, your spouse or partner, and PeteBurdon.com second with your colleagues. If you are a sole practitioner

81 PRACTICE

you have special challenges to discuss with another practitioner or your attorney, or if you are a corporate or government lawyer, discuss it in general terms with your immediate superior. 4. Consider what your financial situation will be when you no longer have a professional income. Remember the limitations of guaranteed retirement income, and the fact that life does not become any less expensive when you retire. 5. Take some time off and see what it is like to be “free” – it could be revealing. You will find that there is a whole “new” world out there where people are enjoying life without work. 6. Consider what retired life could be for you – take control and make it happen, because waiting for someone or something else to do it for you is a recipe for unhappiness. Do you have a sport to engage in, do you have an involvement with community activities, are you capable of having a friendship with someone who does not want to talk about legal topics? Could you even embark on something new? to maintaining run off professional liability insurance 7. Talk to someone who has retired – ask what process for you? Should there be some form of exit agreement was followed, and how have things worked out? You incorporating the outgoing practitioner’s willingness to will find that even practitioners whom you do not cope with questions about client matters post retire- know particularly well will be happy to talk to you. ment, and the remaining practitioners’ commitment to 8. Do not put things off by thinking that every file has to communicate details of any new liabilities for which be finished – be prepared to make arrangements for all may be responsible? someone else to take them over and “walk away”. Talk It will take a little time to adjust to a new way of to clients well in advance (even years ahead) and make living and to purge your system of work worries and arrangements to introduce them to your successor/s. constraints, so plan, plan, plan, and make it work. You They will appreciate it, and you can disengage from will find a whole new worthwhile existence. executorships and trusteeships. These are not random comments but rather lessons 9. Going “cold turkey” may be challenging – think about from someone who left the train after 47 years on board, a gradual disengagement from practice. works one day each week for the New Zealand Law 10. If you are a sole practitioner in private practice, you Society, and is enjoying a new way of life. have even more need to plan well ahead. Closing down or selling a law firm The outcome There is a Practice Briefing on the Law Society website Imagine alighting from the train at a station where, entitled “Closing down or selling a law firm”. This can outside, you find a life where – be found in the section Practice Resources/Practice • There is no pressure of time lines, time recording, Briefings.▪ unrelenting streams of emails and fee targets; • There are no staff worries; Peter McMenamin retired from practice in 2017. He • There are no unproductive boring compliance assists the Law Society with its regulatory work on a procedures; part-time basis. • You can travel when you choose; • You can play some existing or new sport of your choosing when you wish; Keeping in touch • You can make a mistake without it being financially Lawyers no longer in active practice can keep or professionally disastrous; up-to-date with the happenings in law by signing • There is the possibility of doinganything you choose; up to NZLS Weekly, the Law Society’s weekly • Relaxation is an ongoing pleasure. e-newsletter for non-lawyers. This contains most of the information in LawPoints. To sign up, go to Some caveats News and Communications/Email updates on the As with many aspects of life, communication is all impor- Law Society website. tant. Keep up the retirement dialogue with colleagues, LawTalk is also uploaded onto the Law Society’s and family, so that there are no surprises. website each month. Another option is to apply for If you are in partnership, what are the financial arrange- associate membership of the Law Society – go to ments on retirement? What about firm loans, leases, and Law Society Services/Membership on the website. ongoing liabilities? Will the remaining partners commit

82 LAWTALK 928 · May 2019 CLASSIFIEDS · WILL NOTICES

Will

Notices Cassidy, Leila Maryanne Jackson, Rosemary Would any lawyer holding a will for the above-named, Would any lawyer particularly in the Wellington area, late of 7 Clayburn Road, Glen Eden, Auckland, born holding a will for the above-named, formerly of 16 PAGE 83 on 7 March 1957, who died on 15 July 2016, please Duppa Street, Berhampore, Wellington, but recently contact Greg Presland, Presland & Co Limited: of Kenepuru Hospital, 16 Hospital Drive, Porirua, Allan, Christopher  [email protected] please contact Alison Thompson, Public Trust:   Blackburn, Keith James 09 818 1071 or fax 09 818 4966 [email protected]  PO Box 20-310, Glen Eden, Auckland 0642 or  04 978 4688 or fax 04 904 4383 Cassidy, Leila Maryanne DX DP94003  PO Box 254, Paraparaumu 5254 Dinus, Peter Dinus, Peter Johnson, Glenys Dawn Edwards, John Peter, also known as Eruera, Meiha Te Kepa Eruera (used Would any lawyer holding a will for the above-named, Would any lawyer holding a will for the above-named, John Peter Edwards most of the time) late of 3A Verbena Road, Birkdale, Auckland, who died formerly of Thames but latterly of Waitara, Retired, on 27 February 2019, aged 63 years, please contact born on 15 December 1942, who died on 18 October Garland, Jane Francis Kirsty Hourigan, Registered Legal Executive at Ross 2018, please contact Doug Hill, Young Carrington Halverson, Grant John Holmes Lawyers: + Ussher: Harwood, Maurice  [email protected]  [email protected]  06 7589484   Huang, Shaoqiang 09 415 0099 or fax 09 415 0098 C/- Young Carrington + Ussher, PO Box 845,  PO Box 33 009 Takapuna Auckland New Plymouth Jackson, Rosemary Johnson, Glenys Dawn Edwards, John Peter, also known as Jones, Kelly Paraha Eruera, Meiha Te Kepa Eruera Jones, Kelly Paraha Would any lawyer holding a will for the above-named, Would any lawyer holding a will for the above-named, late of 20B Elmdon Street, Mangere, Auckland, who PAGE 84 late of 1 Mariana Place, Glen Eden, Waitakere, died on 19 June 2018, aged 60 years, please contact Auckland, Retiree and former Truck Driver, born on PS Pabla (Jamie) of Pabla Law: Lee, Candy Po Yee 12 April 1938, who died on 25 November 2018, please  [email protected] Lo, Te-Jui contact Henry Hoglund, To’oala Law:  09 213 8858 or fax 09 261 2471  Maxwell, Materere Gigi  [email protected]  09 3603240 PO Box 76484, Manukau City, Auckland 2241 or  PO Box 46018, Herne Bay, Auckland 1147 DX EP 75504, McCarthy, Thomas Patrick McDonald, John Gray Garland, Jane Francis Lee, Candy Po Yee Michelle, William Victor Would any lawyer holding a will for the above- Would any lawyer holding a will for the above-named, named, late of 20 Woodside Road, Oxford 7430, born on 7 November 1960, who died in Lower Hutt Minter, Joyce Edna School Teacher and Coach, born on 16 November on 7 January 2019, please contact Freya Marchant, Neave, Stuart James 1945, who died on 23 February 2019, please contact Collins & May Law: Phillips, Anthony Rahui Nicole Gibson, First Law:  [email protected]    04 576 1409 or fax 04 566 5776 Prasad, Prabha Wati [email protected] 03 354 8224  21 Main North Road, Papanui, Christchurch  PO Box 30614, Lower Hutt 5040 Rameka, Weston Adam Sharma, Champa Wati Halverson, Grant John Lo, Te-Jui Would any lawyer holding a will for the above- Smith, Harry Alchin Would any lawyer holding a will for the above-named, late of Whangarei and other parts of New Zealand, named, Dentist, born on 8 August 1954, who died Thermographic Specialist, born on 6 August 1963, on 9 November 2018, please contact David Liu, Yu who died in Dunedin on 6 March 2019, please contact Lawyers Limited: Grant Currie, Thomson Wilson:  [email protected]  09 620 8228  [email protected]  09 430 4380  PO box 96135, Balmoral, Auckland 1342  PO Box 1042, Whangarei 0142 Maxwell, Materere Gigi Harwood, Maurice Would any lawyer holding a will for the above-named, Allan, Christopher Would any lawyer holding a will for the above- late of Cambridge, who died 8 July 1996, aged 66 Would any lawyer holding a will for the above- named, Mechanic, born on 30 August 1953, who years, please contact Brian Nabbs, Lawyer: named, late of 340 Marine Parade, New Brighton, died at Middlemore Hospital, Auckland, on 7 March  [email protected] Christchurch, Boat Builder, born on 22 September 2019, aged 65 years, please contact Zara Jamieson,  07 823 9306  PO Box 829, Cambridge 1950, died on 30 March 2019, please contact Mark Complete Legal Limited: Wilson of Mark Wilson Lawyer:  [email protected]  09 238 7004 McCarthy, Thomas Patrick  [email protected]  PO Box 264, Pukekohe 2340 or DX EP 77026 Would any lawyer holding a will for the above-named,  03 365 4523 late of Motueka, born on 24 March 1962, who died  PO Box 8408, Christchurch 8440 Huang, Shaoqiang on 28 July 2014, please contact Siobhan McCarthy: Would any lawyer holding a will for the above-named,  [email protected]  027 844 7040 Blackburn, Keith James late of 12B, Block H, Mingcuigu, No. 147, Jinhu First Would any lawyer holding a will for the above- Street, Yinhu Road, Luohu District, Shenzhen City, McDonald, John Gray named, formerly of Auckland, Builder/Carpenter, Guangdong Province, born on 21 June 1962, who Would any lawyer holding a will for the above-named, late of Warkworth, Retired, born on 28 July 1933, died on 2 July 2015, please contact Eon Lai, Forest late of Christchurch, Retired, aged 66 years, who died who died on 26 February 2019, please contact Karen Harrison Lawyers: between 13 and 18 March 2019, please contact Keely Bell, Cargill Stent Law, Taupo:  [email protected] King, Gascoigne Wicks:  [email protected]  09 308 0080 or Fax 09 308 0082  [email protected]  03 578 4229  07 376 0000 or fax 07 378 2697  PO Box 828 Shortland Street, Auckland 1140 or  PO Box 445 Taupo 3351 or DX KP37002 DX CP22011

83 WILL NOTICES · CLASSIFIEDS May 2019 · LAWTALK 928

Michelle, William Victor Prasad, Prabha Wati Sharma, Champa Wati Would any lawyer holding a will for the above-named, Would any lawyer holding a will for the above-named, Would any lawyer holding a will for the above-named, late of Timaru, born 29 January 1958 in Dunedin, who late of 118 Gray Avenue, Papatoetoe, Auckland, who late of 29 Settlors Cove, Weymouth, Auckland, who died on 25 January 2019 at Timaru, please contact died on 7 November 2017, aged 79 years, please died on 16 March 2019, aged 83 years, please contact Pauline-Jean Luyten, Aoraki Legal Ltd: contact PS Pabla (Jamie) of Pabla Law: PS Pabla (Jamie) of Pabla Law:  [email protected]  [email protected]  [email protected]  03 687 9480 or fax 03 688 9749  09 213 8858 or fax 09 261 2471  09 213 8858 or fax 09 261 2471  PO Box 803, Timaru 7910  PO Box 76484, Manukau City, Auckland 2241 or  PO Box 76484, Manukau City, Auckland 2241 or DX EP 75504 DX EP 75504, Minter, Joyce Edna Would any lawyer holding a will for the above-named, Rameka, Weston Adam Smith, Harry Alchin late of Whangarei, Retired, born on 3 April 1919, who Would any lawyer holding a will for the above-named, Would any lawyer holding a will for the above-named, died on 11 November 2018, please contact Layne late of 13 Watford Place, Rototuna, Hamilton, born on Retired, born on 25 November 1933, who died at Herbert, Marsden Woods Inskip Smith: 6 January 1958, who died on 24 January 2019, please Gisborne on 11 November 2018, please contact Mark  [email protected]  09 438 4239 contact Natalie Whitelock, McCaw Lewis: Richardson, Lawyer:  PO Box 146, Whangarei 0140  [email protected]  [email protected]  07 958 7435 or fax 07 839 4652  06 327 8606  PO Box 216, Marton Neave, Stuart James Would any lawyer holding a will for the above-named, late of Tauranga, who died on 21 March 2019, please contact Deeanah Winders, Harris Tate:  [email protected]  07 578 0059  PO Box 1147, Tauranga or DX HP40005 Phillips, Anthony Rahui Vicki Ammundsen Trust Law is a busy and rapidly expanding boutique law practice specialising in trust and estate law and Would any lawyer holding a will for the above- named, late of Taranaki Base Hospital, Westown, related litigation including trust, relationship property and New Plymouth, Truck Driver, born on 1 July 1973, who estate disputes. As an industry leader, we are seeking a lawyer died on 20 December 2018, aged 45 years, please with 2-4 years post qualification experience in litigation who contact Zara Jamieson, Complete Legal Limited: is interested in developing their skills and increasing their  [email protected]  09 238 7004 knowledge in this dynamic and fast evolving area of law. You will  PO Box 264, Pukekohe 2340 or DX EP77026 be able to competently manage your own files and be willing to work in a team environment on more complex matters.

Expressions of interest can be sent to Mike Phillipps at [email protected]

2 Legal Counsel Vacancies

– Commercial – Property Plus

Mercury’s reputation is built on the qualities of our people – great • Property Plus role: Infrastructure and/or utilities related property individuals in high performing teams sustaining exceptional performance experience including land access arrangements, land acquisition, leases, over time. easements, and licence agreements. • Energy industry knowledge advantageous, but not essential. Joining the 2018 ILANZ Innovation award winners and reporting to the General Counsel at our cool new building, you will work in a commercially Skills and competencies: focused team adding value across the whole business. • Business partnering – understand stakeholders’ aims and drivers and provide the right balance of challenge and support in delivering legal Key accountabilities: services. • The team – contributing to our operating model, business plan and • Drives for results – has a track record of producing commercial, risk strategic priorities. based legal services; embeds learnings and continuous improvement. • Trusted partner – understanding Mercury’s strategic ambitions and • Insight and perspective – develops knowledge of Mercury and the drivers; providing commercial, right sized and risk based legal advice. NZ energy landscape (legal, regulatory and political) to help develop • Legal resource – managing external lawyers to deliver value; balancing business tactics, driving growth. internal and external resource to deliver the right result. • Strategic and commercial thinking – focuses on business priorities. • Give something back – delivering training and insights to the business. • Builds relationships – develops relationships with team and stakeholders, • Service delivery – being a change agent for legal service delivery; collaboratively delivering solutions. ensuring continuous improvement and performance excellence. • Stakeholder influencing – collaborates with stakeholders, gaining • Stakeholders – maintaining effective relationships so appropriate, support and commitment. commercial decisions are made. At Mercury you will join an IBM Best Workplace as part of a diverse, The right person: co-operative team where continual training and leadership development Qualifications and experience: is encouraged. With access to great healthcare and insurance benefits, • LLB or equivalent. you will play your part in an organisation committed to the sustainable • Current New Zealand practising certificate. management of our environmental resources. Furthermore – an extra five • Between 3 and 7 years’ experience in private practice and/or in-house. leave days per year. • Commercial role: Strong commercial law fundamentals; privacy and information security experience advantageous. Apply now – www.mercury.co.nz/careers

84 LAWTALK 928 · May 2019 CLASSIFIEDS · LEGAL JOBS

Expressions of Interest Junior Barristers 2020 Member of the Shortland Chambers invites applications for Junior Barrister Independent Police positions commencing in February 2020. This is a fantastic opportunity to work alongside some of Conduct Authority New Zealand’s top barristers. We are looking for applicants with 1-5 years’ PQE and a strong academic record. The maximum period for which the role can be held is 3 years. The Minister of Justice is seeking expressions of interest from persons wishing to be considered for appointment as a member For more information, or to apply, please email of the Independent Police Conduct Authority. [email protected]. Applications must be received by no later than 31 May 2019. The function of the Authority is to investigate complaints alleging any misconduct or neglect of duty by a member of the Police or concerning any practice, policy, or procedure of the Police shortlandchambers.co.nz affecting the complainant. The Authority is also responsible for investigating any incident involving death or serious bodily harm notified to the Authority by the Commissioner of Police and has responsibilities as a National Preventive Mechanism under TAURANGA LAW PRACTICE the Crimes of Torture Act 1989, which implements the United Nations Optional Protocol to the Convention Against Torture. FOR SALE The member positions are predominantly governance, strategic planning and project focused and occupy the incumbents A well-established Legal Practice is for sale in Tauranga. approximately 2 days per month. Candidates should, therefore, This is an excellent opportunity for any Lawyer seeking have senior management and governance experience. to relocate to Tauranga or a local Lawyer seeking to Knowledge of or experience in criminal justice, law enforcement purchase his or her own Practice. A general practice with or independent integrity bodies would be an advantage. major areas being; • commercial & residential Conveyancing • business sales & purchases • Trusts, Wills & Estates The position description and expression of interest form are available from the Ministry of Justice website www.justice.govt.nz/about/statutory-vacancies Please contact the advertiser, in confidence, at: Confidential Advertiser No. 18-7, email: [email protected] Expressions of interest are sought by 24 May 2018

CORONER FOR THE HAWKE’S BAY REGION Junior and Intermediate Litigation Lawyers The Attorney-General is seeking expressions Gilbert Walker is a specialist advisory and dispute resolution practice based in Auckland. We practise across a broad of interest from persons wishing to be range of civil disputes, including commercial, construction, considered for appointment as a coroner insurance, property, trusts and regulatory matters. We are currently acting on a wide range of interesting and based in the Hawke’s Bay region. The challenging matters for high profile clients. position is full-time. We are seeking two lawyers to join our busy team, one with 1-3 years’ experience and one with at least 5 years’ To be appointed as a coroner the Coroner’s experience. We maintain a low ratio of senior to junior Act 2006 requires that the appointee must lawyers. You can expect to work with each of our three partners. All of our lawyers engage directly with our clients have held a practising certificate as a barrister and appear regularly in court and in other dispute resolution or solicitor for at least five years. forums. We work in an open and collegial environment. We are interested in hearing from candidates with an The position description and expression of outstanding record of academic and professional achievement. interest form are available from the Ministry of Justice website www.justice.govt.nz/about/ Applications should be sent to: Martin Smith, Gilbert Walker, PO Box 1595, Shortland Street, Auckland, or emailed to statutory-vacancies [email protected]

For further information about our firm, please Expressions of interest are sought by contact any of our partners or sta, or visit our Friday 24 May 2019. website: www.gilbertwalker.com

85 CPD Calendar

PROGRAMME PRESENTERS CONTENT WHERE WHEN CIVIL LITIGATION AND EMPLOYMENT

INTRODUCTION TO CIVIL Roderick Joyce QSO QC This workshop is an excellent opportunity for recently Dunedin 13-14 May LITIGATION SKILLS Sandra Grant admitted practitioners to develop practical skills in civil Auckland 1 27-28 May litigation in an intense small-group workshop. You will learn Nikki Pender Wellington 21-22 Oct** 9 CPD hours how to handle a single file from beginning to end, be able Paul Radich QC to identify and understand the various steps in the process, Auckland 2 4-5 Nov** develop the practical skills you need to handle this and a range of other litigation files, competently and confidently. Note: Douglas Wilson Scholarship applications have closed for Dunedin and Auckland 1, applications for Wellington and Auckland 2 close 23 Sept**.

INSURANCE LAW UPDATE Prof Rob Merkin QC Insurance is an important factor in most commercial and Webinar 15 May Jonathan Scragg property transactions. Many aspects of insurance law 1.5 CPD hours have been evolving rapidly in New Zealand and legislative reform is now highly likely. This webinar will include a robust examination of current issues associated with professional indemnity insurance, subrogation claims, and the implications stemming from the Ministry of Business, Innovation and Employment’s insurance law reform project for practitioners on a practical level.

EMPLOYMENT – Rachael Judge Care must be taken when declaring an employee’s position Auckland 16 May REDUNDANCY Rebecca Rendle redundant as the courts can, and will, enquire into the merits Live Web Stream 16 May of the decision. This seminar will look at key developments 2 CPD hours in the employment redundancy arena and will help ensure that you are able to provide your clients with robust advice, whether you are representing the employee or the employer.

LITIGATION SKILLS Director: This highly regarded residential week-long advocacy training Christchurch 25-31 Aug PROGRAMME Belinda Sellars QC course is open to applicants with at least two years’ litigation experience. It’s hard work, great fun and most participants 55 CPD hours Deputy Director: say it’s the most effective value-for-money course they’ve James Rapley QC ever attended! Course applications and Doulgas Wilson Scholarship applications close 5pm Wednesday 5 June. COMPANY, COMMERCIAL AND TAX

MORTGAGEE SALES Mark Hopkinson Knowing how to effectively manage mortgagee sales is Webinar 21 May essential for achieving positive results for your clients. This 1 CPD hours webinar will cover the rules underpinning the mortgagee sales process and provide guidance on how best to run a sales process and deal with competing interests.

DECEPTION IN Chair: The law has an array of approaches to deal with deception; Wellington 12 Jun COMMERCIAL DEALINGS Bob Hollyman QC some are somewhat arcane, while others have developed as Live Web Stream 12 Jun MASTERCLASS simple and effective ways to address the issues. It’s topical and continually relevant and pervades all areas of legal Auckland 13 Jun 6 CPD hours practice. The idea of this Masterclass is to delve into some key areas of interest – pitfalls when guiding a commercial deal from sales pitch to signature; understanding and identifying the best way to plead a claim; keeping an eye on the outcome when the case finishes. Importantly, we will also be dealing with the perennial issues and pitfalls which arise in advertising, and hearing from the Commerce Commission. CRIMINAL

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

CRIMINAL APPELLATE Nicholas Chisnall The volume of criminal appeals continues to grow and even Auckland 6 Jun ADVOCACY Susan Gray the seasoned trial lawyer is likely to find operating in this Live Web Stream 6 Jun unique environment a formidable task. Attend this seminar Philip Hamlin 2 CPD hours and receive the benefit of practical advice with regards to the challenges of appearing before the judiciary.

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

PROGRAMME PRESENTERS CONTENT WHERE WHEN CRIMINAL

ADVANCED LITIGATION Director: Aimed at practitioners with at least 6-10 years’ litigation Wellington 23-27 Jun SKILLS PROGRAMME – Judith Ablett-Kerr experience (either criminal or civil) this five-day non- FOR CRIMINAL AND CIVIL residential programme follows the same methods that have ONZM QC LITIGATORS proved so successful in the basic level NZLS CLE Litigation Deputy Director: Skills Programme. 32 CPD hours Paul David QC Note: Course applications and Douglas Wilson Scholarship applications close 8 May.

HOW TO RUN A JURY Fiona Guy Kidd QC Working in groups you will follow step-by-step the practical Invercargill 23 Jul TRIAL Craig Ruane aspects of preparing and conducting a jury trial. This Christchurch 24 Jul workshop is a must for all practitioners who see themselves Wellington as specialising in criminal law, who are already on the level 30 Jul 7 CPD hours Auckland one legal aid list, and are seeking inclusion in the level two 31 Jul legal aid list, or have been recently appointed to the level two legal aid list.

INTRODUCTION TO Brett Crowley A practical two-day workshop covering the fundamentals of Auckland 2-3 Sep CRIMINAL LAW PRACTICE being an effective criminal lawyer. This workshop will benefit all practitioners wanting to be appointed to level one of the 13 CPD hours criminal legal aid list, and those recently appointed to level one. Note: Douglas Wilson Scholarship applications close for Auckland 31 July. FAMILY

ORANGA TAMARIKI ACT – Her Hon Judge Otene The Children, Young Persons and their Families (Oranga Christchurch 17 Jun CHANGES Natalie Coates Tamariki) Legislation Act 2017 comes fully into force on 1 Wellington 18 Jun July 2019, bringing the most significant changes since the Dr Allan Cooke Auckland 19 Jun 4 CPD hours original 1989 Act. Practitioners working in this area must Darrin Haimona become familiar with the amendments, including important Live Web Stream 19 Jun Erin Judge changes to the Act’s principles, purposes and processes. This 4 CPD hours in-depth seminar will inform you of the changes and guide you to Identify opportunities within your own practice to advance the purposes of the Act.

MENTAL CAPACITY Chair: The mental capacity of a client to instruct a lawyer is Auckland 10 Jun FORUM Kathryn Lellman fundamental to every area of legal practice. This practical Live Web Stream 10 Jun forum will provide a comprehensive overview of capacity 6 CPD hours concepts, guidance on best practice for lawyers from legal and medical experts, and analysis of case studies. PROPERTY AND TRUSTS

TRUSTS CONFERENCE Chair: Greg Kelly Trust lawyers and trustees face unprecedented changes: Wellington 17-18 Jun 2019 the Justice Committee of Parliament has recommended Live Web Stream 17-18 Jun that a new Trusts Bill be passed; the Law Commission has Auckland 24-25 Jun 13 CPD hours proposed significant changes to the current “trust busting” provisions in family law; the drafting of trust documents and changes to existing trusts will come under scrutiny; the Family Court will have greater jurisdiction over trusts. If you work in the areas of trusts, estates, property and relationship property, you will need to understand these changes.

RESIDENTIAL PROPERTY Lauchie Griffin This small group intensive workshop offers you the Christchurch 15-16 Jul TRANSACTIONS Michael Hofmann-Body opportunity to be guided step-by-step through the Wellington 29-30 Jul conveyance of a stand-alone fee simple residential dwelling, Nick Kearney Auckland 12-13 Aug 13 CPD hours a cross-lease dwelling and a unit title property. Michelle Moore Hamilton 26-27 Aug Duncan Terris Anita Wan

OTHER PRACTICE AREAS

ELDER LAW INTENSIVE Chair: Lawyers who practice in the Elder Law area are today faced Wellington 29 May 2019 Mary Joy Simpson with legal requirements and complexities which were not Live Web Stream 29 May evident a generation ago. This intensive will provide up-to- Auckland 30 May 6 CPD hours date practical advice on current issues and challenges.

To contact us | Visit: www.lawyerseducation.co.nz Email: [email protected] | Phone: CLE information on 0800 333 111 Online registration and payment can be made at: www.lawyerseducation.co.nz

PROGRAMME PRESENTERS CONTENT WHERE WHEN PRACTICE AND PROFESSIONAL SKILLS

TRUST ACCOUNT Philip Strang How do you keep a trust account in good order? This practical Auckland 18 Sep ADMINISTRATORS training is for new trust accounting staff, legal executives, Hamilton 19 Sep legal secretaries and office managers. 4 CPD hours

TRUST ACCOUNT Philip Strang Under the Financial Assurance Scheme all practices operating Hamilton 18 Jul SUPERVISOR TRAINING a trust account must appoint a qualified trust account Wellington 24 Sep PROGRAMME supervisor. A candidate must be a lawyer and must pass the NZLS trust account supervisor assessments, which take Auckland 2 5 Nov Christchurch 12 Nov 7.5 CPD hours place during a full day programme. The training consists of self-study learning material (approx. 40-50 hours) to help you prepare for the assessments.

MEDIATION PRINCIPLES Virginia Goldblatt A practical two-day workshop focused on the professionals Wellington 26-27 Jul AND PRACTICE Geoff Sharp in the mediation process, whether that is as advocates or mediators. You will learn new skills and also enhance and David Patten 13 CPD hours adapt skills you currently possess so that you can improve Adam Lewis your representation of parties at mediation and your knowledge of the role of a mediator. It can lead, if you wish, to a second workshop focused on training to be a mediator. Note: Douglas Wilson Scholarship applications close for Wellington 26 June.

STEPPING UP – Director: All lawyers wishing to practise on their own account whether Auckland 2 25-27 Jul FOUNDATION FOR Warwick Deuchrass alone, in partnership, in an incorporated practice or as a Wellington 12-14 Sep PRACTISING ON OWN barrister, will be required to complete this course. Auckland 3 21-23 Nov ACCOUNT

18.5 CPD hours

KUA AO TE RĀ: Alana Thomas This one-day workshop is specifically tailored for lawyers and Wellington 24 Jun MĀORI CULTURAL Apimaera Thomas is designed to enhance your ability to connect with Māori who Auckland 25 Jun DEVELOPMENT FOR you may be working with as clients, stakeholders, partners, Christchurch 27 Aug LAWYERS or in another capacity. Experienced facilitators will guide you through an interactive day as you consider the who, why and 6 CPD hours the how to successfully engage with Māori in the law.

CREATING GREAT Chair: Are you the best employer you can be? Is your workplace Wellington 24 Jun WORKPLACES FOR Susan Hornsby-Geluk a safe, positive and sustainable one? Are you attracting Live Web Stream 24 Jun LAWYERS FORUM and retaining the staff you want? Can your law firm adapt to meet the challenges of the future? This forum brings Auckland 25 Jun 6 CPD hours together a group of highly experienced and successful practitioners who have grown successful practices and have dealt with many challenges. The presenters will openly discuss the issues and share their experience and practical advice to help you be the best employer that you can be.

LEGAL EXECUTIVES Chair: Pam Harliwich A sell-out in 2017, the biennial “must attend” conference for Wellington 19-20 Aug CONFERENCE all legal executives. The conference recognises the specialist Live Web Stream 19-20 Aug role of legal executives in legal practice with a programme 11.5 CPD hours designed to be directly relevant to the day-to-day work carried out by the majority of legal executives.

To contact us | Visit: www.lawyerseducation.co.nz Email: [email protected] | Phone: CLE information on 0800 333 111 LAWTALK 928 · May 2019 LIFESTYLE

LIFESTYLE

A New Zealand Legal Crossword

SET BY MĀYĀ

B R E A C H O F P R O M I S E A N H F R U K L N O T H A L F E X T R E M E An Alphabetical Jigsaw K A M E S E B C R O S A P A R K S D R A F T Solve the clues and fit them into the grid, jigsaw-wise, wherever they will go. U I E E O N R P O S E R R A N G A T A H I T T B C A Deposits everyone posh has to go through (7) C H A R Y B D I S S U M A C B Cloths dropping the dead cuckoo (7) Y B E E U I H C Nearly shut lacy curtains (7) C H A F F I N T E R A L I A O N A F U D L R D Undressing one songbird? Uncertain (9) U N D E R G O P R I S I N G E Board express, say, ten motions (that's precipitate) (7) R O G R O S O E T E N C O M M A N D M E N T S F Note Ray's achievement - her bird's way to elevate (6,7) G Movement of soldier to a day of victory (4) H Here's my story! Encourage giving time for degree (7) Solution to April I An artist joining quiz show from the East (the Middle) (5) 2019 crossword J Jam holder against returning kiss - words that can be a riddle (7) Across K Could be entitled "The Cheap Copycat Murders"? (9) 1. Breach Of Promise, L More brave, losing head, like "two in hand" birders? (7) 9. Not Hale, 10. Extreme, M Creature getting note in return for a token (7) 11. Rosa Parks, 12. Draft, 13. Poser, N Fruit stainer perhaps after isthmus, when spoken (10) 14. Rangitahi, 16. Charybdis, O Protest if I charge after cat, removing humanity (15) 20. Sumac, 22. Chaff, 24. Inter Alia, P Bear eating gold opener - she caused a calamity (7) 25. Undergo, 26. Prising, Q Not right to measure judge painting four circles connected (10) 27. Ten Commandments. R Ease of eastern "anti-stripper", upwards directed (7) S What the juicers were doing to Miss Beauregarde - made into a mouse? (9,6) Down T Descriptive of someone when he inclines to a joust? (5) 1. Bankruptcy Court, 2. Entasis, U Hesitation before Brian cut up a fish(7) 3. Champerty, 4. Offerer, V 500 + 50,000's used to bewitch? (7) 5. Press On, 6. Outed, 7. Ikebana, W Relaxes audibly, and roughly pulls away (6) 8. Electric Charges, 15. Absurdism, X Egyptian god between unknowns makes bones as clear as day (4) 17. Abandon, 18. Deiform, Y Talking nonsense, like "try eating cocktail" (9) 19. Set Upon, 21. Million, 23. Fargo. Z Many suffering from diseases in Israel (7)

89 TAIL END May 2019 · LAWTALK 928

TAIL END

The starting point: 3 September 1869

Hanson, arrived at Port Nicholson on 3 January 1840. For the next The New Zealand Law Society turns 150 two decades the legal profession was regulated by Supreme this year. It’s not the oldest lawyers’ Court Ordinances and then three statutes in 1854, 1858 and organisation in the world – this goes back 1861. A Roll of Barristers and Solicitors admitted to practise in to 13 February 1739 when the “Society of New Zealand was opened at Auckland on 31 January 1842 and Gentlemen Practisers in the Courts of Law the Law Practitioners Act 1861 imposed a more comprehensive and Equity” was established in London regulatory structure on the legal profession. to meet when appropriate to consider The Law Society’s centennial history, Portrait of a Profession, matters relating to the honour of the points to an organised body of lawyers in Auckland, “the Auckland profession. A more formal lawyers’ body Law Society”, in 1861. It says the membership was recorded in was founded on 2 June 1825 in London and Chapman’s Almanac during the 1860s but no records of its received a Royal Charter on 22 December activities have been found. The Canterbury Law Society was 1831. The “Society of Attorneys, Solicitors, formed on 16 October 1868 as a voluntary association and held Proctors and others not being Barristers, its first meeting to elect officers on 1 December 1868. practising in the Courts of Law and Equity A national lawyers’ organisation followed. On 27 July of the United Kingdom” is now more 1869 Francis Dart Fenton moved for leave in the House of conveniently entitled the Law Society of Representatives to introduce a bill to incorporate the bar- England and Wales. risters and solicitors of New Zealand under the style of the New Zealand, however, wasn’t too far New Zealand Law Society. The bill was introduced and read behind. The first lawyer, Richard Davies a first time. Fenton was Chief Judge of the Native Land Court

❝ The right to consult and instruct a lawyer and the right to Notable Quotes a fair and public hearing are protected rights that the New Zealand Bill of Rights Act provides to every person in the country.❞ — Shane Tait, along with Jonathan Hudson, one of two barristers ❝ Given the fact that Shri Nedumpara now undertakes to this who have accepted instructions to act for the person accused Court that he will never again attempt to browbeat any of the Christchurch mosque shootings. Judge either of this Court or of the 6 Bombay High Court, we sentence Shri Nedumpara to three months’ imprisonment ❝ We have many Bill of Rights cases that are simply not which is, however suspended only if Shri Nedumpara run because of a broken system. This is not a situation of continues in future to abide by the undertaking given to worrying about lawyers – it’s worrying about clients who us today.❞ need lawyers.❞ — India’s Supreme Court sentences lawyer Mathews J — Auckland lawyer Deborah Manning who is advocating for Nedumpara, 60, for contempt of court after finding he was villagers of Khak Khuday Dad in the Inquiry into Operation in the habit of terrorising members of the Debt Recovery Burnham. Tribunal and using intemperate language before High Court judges. ❝ Lawyers have been polygamists in this state for a long time. This isn’t that new.❞ ❝ There are lots of people who have had life sentences and — University of Utah law professor Linda Smith comments on left prison to live very successful and productive lives.❞ a complaint filed with the Utah Bar Association which says — Wellington lawyer Judith Fyfe speaks in support of the parole seven Utah lawyers are violating rules of conduct because system. they are polygamists.

90 LAWTALK 928 · May 2019 TAIL END

from 1865 to 1882 and a member of the of the Canterbury Law Society, Thomas Smith Duncan, as Legislative Council. Interestingly, a Vice-President. bitter conflict over policy with Native It was not until 1897 that the New Zealand Law Society – Minister Donald McLean resulted in inval- under a new Act – elected its first President. The organisation, idation of Fenton’s appointment to the however, was formed in 1869. We’ll keep you updated through Legislative Council a year later through LawTalk, LawPoints and branch newsletters on planned activities the Disqualification Act 1870. However, for celebrating 150 years. he was lawfully present when introducing the Law Society legislation. Why we don’t have a fully fused profession today The bill was largely a transcription Provision for enrolment of lawyers by the Supreme Court of New of the English Law Society’s second Zealand (as long as they had been admitted in Great Britain Charter, granted in 1845. Portrait of or Ireland) first came with the Supreme Court Ordinance 1841 a Profession says the profession in on 22 December 1841. However, the Colonial Office decided Wellington and Christchurch supported this had defects and it was disallowed on 4 December 1843. A it, but 23 Auckland practitioners peti- replacement ordinance on 13 January 1844 added the power tioned Parliament not to pass it on the for the court to admit others according to any laws passed ground that the Auckland profession had for that purpose. not been sufficiently consulted. In spite The ordinances and another in 1848 allowed barristers to act of this the bill was passed and the New as solicitors and solicitors as barristers for five years. These were Zealand Law Society’s Act 1869 received extended and modified by the Law Practitioners Acts of 1854 and the Royal assent on 3 September 1869. 1858. These had the long title “An Act to enable the Barristers There was just one amendment – to pro- and the Solicitors of the Supreme Court to act as general Law vide that the Governor should appoint Practitioners”. “Had the provisions of the [Acts] been perpet- the first President, Vice-President and uated, with the right of reciprocal qualifications, fusion would Council. The appointment process have become reality,” Portrait of a Profession states. began on 11 October and on 19 February However, the chance for New Zealand’s profession to have 1870 by warrant the Governor appointed just “lawyers”, as with the United States, vanished with the Law a Council. The first appointed President Practitioners Act 1861 on 29 August 1861. This clearly differentiated was James Prendergast, the Attorney- between barristers and solicitors. It also, however, clearly allowed General at the time (and later, of course, a person to practise both as a barrister and as a solicitor – which Chief Justice), with the first President around 90% of the profession do today. ▪

❝ If Mr James were white, the officer would not have doubted ❝ The Constitution is a framework of our country. It’s what that Mr James was an attorney, would not have questioned makes us in America better than everybody else in the world, his identity, and certainly would not have detained Mr in terms of a country where you actually have rights that are James after seeing his driver’s licence. There is no plausible given to you, not from men and women but from God, and explanation other than racial bias.❞ you have those rights for a reason so that you can protect — Andrew Freeman, an attorney for attorney Rashid James, who yourself and your home.❞ was detained by a Maryland, United States deputy sheriff — US Republican Senator Steve Scalise disagrees that the United in a courthouse on suspicion of impersonating an attorney. States should follow New Zealand in implementing tighter This was in spite of Mr James having argued on behalf of his gun control laws. absent client before a judge. ❝ I believe that he should take some time to adjust to living ❝ We make the very best of a very poor situation. Because outside of prison and establishing relationships in the people have to be interviewed outside, and basically community and that he should then meet with me to discuss wherever we can, you have to be as discreet as possible. It’s matters to give me the confidence that he is equipped to less than ideal, and for that reason, we need more interview participate in class and at the university in a way that works rooms.❞ for all of us.❞ — Morrinsville lawyer Jennifer Raleigh, who believes that — University of Otago Law Dean Jessica Palmer tells the Otago while some improvements are being made to the town’s Daily Times she is not comfortable with former prisoner Arthur courthouse, a lot more is needed. Taylor’s attempts to enrol in law courses immediately.

91 Study2_19NZBAR03 BAR - Print ads_A4_with bleed.pdf 2 26/04/2019 6:08 AM

C

M

Y

CM

MY

CY

CMY

K

Whether you're new to the Bar or are a seasoned hand, make your strongest argument with research and Build your strongest productivity tools for barristers that give you online case, faster. access to up-to-date, trusted authoritative content. Lexis Advance®, Lexis® Draft and Lexis Red® are the perfect combination to help you look your best in court.

To learn more, visit: LexisNexis.co.nz/BarristerSolutions

LexisNexis.co.nz/BarristerSolutions LexisNexis, Lexis Advance, Lexis Draft, Lexis Red and the Knowledge Burst logo are registered trademarks of RELX Inc. © 2019 LexisNexis NZ Limited. All rights reserved.