ISSUE 927 · April 2019
PASSING THE TORCH New Zealand’s new Chief Justice and Law Society President
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A Bequest to the Society of St Vincent The Society is a Catholic organisation de Paul is a lasting way to help the which recently celebrated 150 years most disadvantaged and needy in of compassion and service to the our community. people of New Zealand. Your Bequest will ensure the Society’s We have a nationwide network of vital work of charity and justice workers and helpers who provide continues to thrive. practical assistance every day to people in desperate situations. Help is offered Be assured it will make a huge to all, regardless of origin, cultural difference where the need is greatest. background or religious belief.
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6 · Building a legacy of 37 · Auckland barrister, homeless understanding and aroha advocate and a judge ▹ BY SAMUEL HOOD champion new night shelter for homeless ▹ BY NICK BUTCHER 8 · New Zealand Law Society 39 · The Innovators: Erin Ebborn 14 · The President of the New Zealand Law Society Update 6817 40 · Can-ada we do? Yes, says The justice system campaigner as NZ prepares 21 · Celebrating two Chief way for disability legislation Justices ▹ BY GEOFF ADLAM ▹ BY CRAIG STEPHEN 24 · New Zealand’s judiciary at 14 42 · The Viagogo case March 2019 ▹ BY GEOFF ADLAM ▹ BY JOHN LAND 46 · Harmful digital communications ▹ BY TARYN GUDMANZ People In The Law 49 · Accredited employers, the 35 · The Government’s lawman: current policy, proposed David Parker, Attorney- policy changes and ‘what’s General ▹ BY CRAIG STEPHEN next?’ ▹ BY MAHAFRIN VARIAVA 52 · Strata / Units and Urban Development 8868 ▹ BY THOMAS GIBBONS
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4 Contents
Alternative Dispute Practising Well Legal information Resolution 64 · Talking about mental 80 · Some recent legal books 54 · Dispute prevention: using health: start a mental health ▹ BY GEOFF ADLAM mediation as a business movement in your workplace tool ▹ BY PAUL SILLS ▹ BY SARAH TAYLOR Classifieds 56 · How to pick a mediator 67 · Proactive rather than reactive 82 · Will notices ▹ BY CAROLE SMITH ▹ BY ANGHARAD O'FLYNN 83 · Legal Jobs 85 · CPD Calendar legal research Practice 57 · Taking a break to secure our 70 · The Gender Equality Charter: Lifestyle future ▹ BY LYNDA HAGEN What role can the In-house 88 · A New Zealand Legal 58 · The Borrin Foundation: legal community play? Crossword ▹ SET BY MĀYĀ Making a difference to New ▹ BY CAROLINE SIGLEY 89 · The Irish R.M.: Justice a mere Zealand, through the law 72 · Queen’s Counsel in New sideline in historical magistrates ▹ BY MICHELLE WANWIMOLRUK Zealand ▹ BY GEOFF ADLAM series ▹ BY CRAIG STEPHEN
Access to justice Future of law 90 · Tail end 60 · The work of in-house lawyers 75 · Taking law and technology at New Zealand’s unions teaching to all students ▹ BY CRAIG STEPHEN ▹ BY LYNDA HAGEN 63 · The firm that represents unions – and employers 77 · Complaints decision ▹ BY CRAIG STEPHEN summaries
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5 BUILDING A LEGACY OF UNDERSTANDING AND AROHA April 2019 · LAWTALK 927
Building a legacy of understanding and aroha ▸ Governor-General of New Zealand, Dame Patsy Reddy, lays flowers for the victims of the Christchurch mosque BY SAMUEL shootings at Hagley Park. Photo HOOD by Government House cb
type of prejudice on a regular basis, I first met Dr Mustafa Farouk at the Hamilton often in the form of unconscious bias. Mosque in 2004. I’m aware of Muslims being sub- I was a newly minted lawyer, having recently relocated jected to excessive racial profiling to Hamilton after two years as a Christian missionary in from prominent financial institu- Japan. A chance meeting with a client, Ali Issa, had led tions. Even my friend Ali Issa lost to an invitation to attend the Mosque and participate his taxi company because the media in the breaking of the fast with the Muslim community irresponsibly reported a bogus rape during Ramadan. complaint against a Somali taxi driver. Mustafa was the first person to greet me at the Mosque. No one seemed to care that Ali is He wanted to know my background and soon learnt from Djibouti, not Somalia. In 2005, that I worked for Tom Sutcliffe, a prominent Hamilton the phones simply stopped ringing. lawyer. Mustafa spoke warmly of Even as recently as a month ago, I learnt that certain his involvement with Tom in certain Muslim employees have been prevented from praying interfaith social initiatives. in their workplace by middle management. That evening began a personal In my experience, the biggest challenge faced by the journey of learning, enlighten- Muslim community is not acts of overt racism. Rather, ment and enrichment. Friendships it’s knowing how to engage with the general public. quickly grew, leading to opportu- Certain outgoing and visionary members of the Muslim nities to engage with the Muslim community, like Ali and Mustafa, excel at building community at community events, bridges. However in my experience, many Muslims do weddings and in their homes. not know where to turn, despite their best intentions. Our religious differences were This then leads to the unfair perception that the inconsequential. Our cultural dif- Muslim community is reclusive. This perception is born ferences were enriching and even of ignorance. It is the same ignorance which, in its most humorous – like the time I phoned extreme form, led to the unprecedented act of violence Ahmed Ahmed and asked him to against the Muslim community (and all humanity) in help me move a “shed”. Something We now have an Christchurch on 15 March 2019. was lost in translation, since Ahmed unprecedented Fifteen years after first meeting Mustafa, I saw him came to my property with a knife, opportunity (and speak to media in the immediate aftermath of the looking for the “sheep” he thought responsibility) to Mosque massacres. As President of the Federation of I wanted butchered. extend the hand Islamic Associations New Zealand, Mustafa spoke calmly It was my privilege to become of friendship of the impact of the terrorist attacks on the victims a de facto lawyer for the Waikato to the Muslim and their families. Mustafa’s words were not of anger Muslim community. In this unoffi- community, both or blame, although that perhaps would have been cial capacity, I learnt of some of the in the immediate understandable in the circumstances. challenges they faced with daily life aftermath of the Instead, Mustafa expressed his concern for the impact in New Zealand. In my experience, Mosque massacres of the terrorists’ actions on the country we love. He also acts of overt racism were infrequent. and in the years said that the attacks: However, many Muslims face some to come. “Do not change my opinion about New Zealand
6 PEOPLE IN THE LAW · ON THE MOVE
being one of the best places on earth to live, it was bridges with the Muslim community and to strengthen just unfortunate that one person decided to commit our relationship with them. We should continue to such an act in this beautiful country.” provide all the support we can, whether it be flowers, Mustafa’s words and actions reflect the words and financial assistance, or heartfelt messages. sentiments of all Muslims I have met. They are peaceful However, the action that will bring about the most people and proud New Zealanders. lasting change, is the gift of whanaungatanga, a relation- On the night of the Christchurch massacres, our Prime ship through shared experiences and working together Minister said: which provides people with a sense of belonging. “We were not chosen for this act of violence because When the terrorist entered the Masjid Al Noor Mosque we condone racism, because we’re an enclave for and fired his first rounds in the name of ignorance and extremism, we were chosen for the very fact that racism, I doubt he ever paused to consider that his we are none of these things, because we represent actions would have the exact opposite effect – that his diversity, kindness, compassion, a home for those wanton destruction of human beings because of their that share our values, a refuge for those who need it.” religion and ethnicity, would rattle the very ignorance I endorse the Prime Minister’s sentiments. However and hatred that he stood for. in my experience, we are sometimes guilty of being an I am proud of our response to this tragedy. enclave of ignorance. The most extreme, and fortunately We now have an unprecedented opportunity (and infrequent symptom of ignorance is racism. However, responsibility) to extend the hand of friendship to the more often than not, the ignorance I have encountered Muslim community, both in the immediate aftermath is simply a lack of familiarity with, and understanding of the mosque massacres and in the years to come. of, the Muslim community. As lawyers, we are in a unique position to lead the In the immediate aftermath of the mosque massacres, bridge building efforts with the Muslim community. the foundations of this ignorance have been shaken to Our individual and collective actions will ensure the core. We have witnessed a tremendous outpouring that the lasting legacy of the 15 March tragedy is not of love, grief and support for the Muslim community. ignorance and hatred, but understanding and aroha. ▪ The Muslim community has, in turn, opened its doors physically and metaphorically to the public. Samuel Hood, Managing Partner, Norris Ward McKinnon, Non-Muslims now have a golden opportunity to build Hamilton.
7 NEW ZEALAND LAW SOCIETY April 2019 · LAWTALK 927
NEW ZEALAND LAW SOCIETY
Complaints lodged against lawyers show increase
In the year to 30 June 2018, 1,581 com- plaints were lodged with the Lawyers Complaints resolved and closed, year to 30 June Complaints Service. This was up 11.4% on Result 2018 2017 2016 the 1,419 complaints lodged in the previous Not upheld – no further action 1072 1102 1253 year. Complaints against practising lawyers Negotiation, conciliation or mediation 42 116 97 made up 93% of all complaints received, Withdrawn, discontinued or settled 25 15 45 while 42% of complaints were lodged by clients or former clients of lawyers. This is Orders made by standards committee 183 183 170 shown in the latest Annual Report of the Complaints outstanding at 30 June 779 516 564 New Zealand Law Society, which was tabled Complaints closed during year 1319 1467 1595 in Parliament last month. The full report is available on the Law Society website at News & Communications/Annual Reports. Most common types of complaint made to Lawyers During the year to 30 June 2018, 1,319 Complaints Service, year to 30 June complaints were resolved and closed. Of Type 2018 2017 2016 these, 82% were not upheld. When com- Breach of Conduct & Client Care Rules 581 522 360 plaints which were resolved by negotiation, Overcharging 407 375 365 conciliation or mediation are included, Negligence / Incompetence 395 436 395 plus those which were withdrawn, 87% of complaints which were investigated and Inadequate reporting / Communications 346 304 255 resolved in the 2017/18 year were not upheld. Misleading conduct 197 175 122 The report says complaints of breach of Conflict of interest 177 167 153 the Rules of Conduct and Client Care, over- Discourtesy 166 187 153 charging and negligence/incompetence are Delay 165 152 147 consistently the matters most frequently complained about. Complainants may Failure to follow instructions 118 120 128 complain about more than one matter, Other conduct issues 105 105 355 meaning the total number of types of Lack of supervision 94 21 6 complaints exceeds the actual number of Unbecoming conduct 90 35 41 complaints made. Between February and 30 June 2018 Not compliant with LC Act / Regs 82 104 61 (the end of the reporting period), lawyers Acting without instruction 56 50 50 standards committees received 14 separate complaints or reports alleging sexual har- assment or other unacceptable behaviour by members of the legal profession. ▪
healthy Mind healthy Body healthy Practice lawsociety.org.nz/practising-well
8 LAWTALK 927 · April 2019 NEW ZEALAND LAW SOCIETY
Origin of complaints received by Lawyers Complaints Service, year to 30 June Law Society to be custodian of Law Origin 2018 2017 2016 Foundation records Client/former client 662 661 769 Client – other side 255 235 289 The Law Society will be custo- Other 114 49 99 dian of the Law Foundation’s records until it is ready to re-launch. Lawyer 74 116 87 This follows the announcement by NZLS own motion 115 100 82 the Foundation that it is to go into Third party 240 154 75 recess to allow its funding base Beneficiary 119 103 57 to rebuild. The Foundation’s last funding round will be in June 2020. Regulatory authority 2 1 1 The Law Society will also take Total 1581 1419 1459 back administration of the Cleary Memorial Prize. “The Law Foundation has been a major force in New Zealand legal Direction of complaints received by Lawyers research since 1992. Many aspects of Complaints Service, year to 30 June our justice system have benefitted Direction of complaint 2018 2017 2016 greatly from grants it has made,” Law Against lawyers 1470 1331 1363 Society President Kathryn Beck said Against non-lawyer employees 45 39 48 on the announcement of the recess. “The Foundation has often taken Against former lawyers 49 28 25 an innovative and imaginative Against incorporated law firms 14 18 23 approach to research propos- Against former non-lawyer employees 3 1 0 als and has not been afraid of Against former incorporated law firms 0 2 0 making major contributions to ground-breaking projects. The Law Total 1581 1419 1459 Society appreciates the reasons behind this decision.” ▪
Preservation of fair trial process essential when assessing victim rights
Moves to improve victims’ experience of the crim- of the defendant; it is not about justice system for all participants. inal justice process must always come in the context of vindicating the alleged victim. “At the heart of the criminal ensuring a fair trial process for anyone charged with a “It is clear that the criminal justice justice system are the rights of all crime, New Zealand Law Society Criminal Committee process is not very well equipped defendants to a fair trial. That has convenor Steve Bonnar QC says. to provide a resolution or healing always been paramount and must Commenting on the release by Chief Victims Adviser process for victims of offences. Dr remain so. Kim McGregor of the results of a survey of victims of McGregor’s research and the views “The research and comments crime, Mr Bonnar says it is important to recognise that of victims make this clear. But we from several quarters make it our criminal justice system is based around the premise need to recognise that this is not clear there is a call for ways of that anyone tried for a crime is brought to court on the principal purpose of the criminal improving support for victims of behalf of the community. justice system and its trial process – crimes. That is a laudable aim. But “A criminal case is fundamentally between the which is to determine if a crime has the answers may lie outside the community and the alleged offender; not the victim been committed and, if so, to bring actual criminal trial processes. and the alleged offender. It is, of course, important the offender to account.” There are long-established rights that victims are heard and their views heeded, but Mr Bonnar says it is important at the centre of the justice system we have to remember that the whole purpose of a for there to be a focus on improv- and it is essential that these stand criminal trial is to determine the guilt or otherwise ing the processes in our criminal paramount.” ▪
9 NEW ZEALAND LAW SOCIETY April 2019 · LAWTALK 927
NEW ZEALAND LAW SOCIETY
Better protection for death penalty prisoners supported
The New Zealand Law Society has joined lawyers’ organisations around the world in calling for the drafting and adoption of standards to ensure better protection May symposium for death row prisoners. The Law Society’s Board agreed that the Law Society will focus on support a resolution which called on all lawyer organisa- tions to assist in upholding and advocating for measures culture change such as free and competent legal aid, improved access rights and protective measures for prisoners sentenced A one-day symposium in Wellington on 14 May will to death. focus on ways of changing the culture of legal workplaces. The initiative organised by the Paris Bar, Ordre des It’s the first major initiative of the Law Society’s Avocats at la Cour de Paris, was a side event to the Culture Change Taskforce. The event will bring together seventh World Congress against the Death Penalty, in around 150 members of the wider legal community, Brussels from 26 February until 1 March. along with experts on culture, transformational change, The resolution recognises that professional associations power systems and other measures that will assist in of lawyers have a vital role to play in advocating for the creating new ways of thinking and operating in legal abolition of the death penalty and the establishment of a workplaces. moratorium on it. Lawyers are one of the main safeguards Some of the broader themes that will be discussed for ensuring the effectiveness of the rule of law, and the include what it takes to change the systems and culture proper administration of justice; and the role of lawyers, of a community, the particular issues facing the legal as protectors of prisoners’ human rights, is especially community and causative factors and possible solutions important in the case of death penalty prisoners. for these. Taskforce chair Kathryn Beck says a diverse range of The text of the resolution: people from a range of organisations have been invited “Call upon Bars and professional lawyers’ organisations to participate. from all countries, both abolitionist and retentionist [of “This is an excellent opportunity to bring people the death penalty] to: together with the common purpose of working on the “Uphold respect for the minimum judicial and due best ways to effect cultural and systemic change,” she says. process guarantees, without discrimination, for all those The 20-member taskforce has been meeting regularly facing the death penalty. Such guarantees must include, since the end of last year. One of the themes members in particular, the categorical rejection of confessions have focused on is the vision for the future. What does obtained through torture; access to professional and a healthy, safe, just, respectful and supportive legal good quality interpretation at all stages of judicial pro- community look like? How does it feel to those in it? cedure; and the principle of free and competent legal Especially to those who have just joined? aid services at all stages of judicial procedure. “The taskforce has been thinking critically about our “Defend respect for detention and treatment con- current culture; the underlying beliefs and assumptions, ditions for death row inmates that preserve human our espoused values and the drivers that result in the dignity and fundamental rights; including particularly by issues we currently face. We have been soul searching ensuring access to medical and health services from the and having frank conversations around understanding outset of detention; access to the outside world; effective what is driving some of the unacceptable behaviour and access to consular protection for foreign prisoners; and work environments.” Ms Beck says. to address the use of solitary confinement, which should The taskforce is required to deliver a draft strategy and not be automatically and systematically imposed simply action plan to the Law Society by 30 November 2019. by virtue of the imposition of a death penalty. “The symposium will be a key touch point along the “Participate in international advocacy for the drafting way to developing a strategy that we hope will sustain the and adoption of additional and specific standards that legal community long into the future,” Kathryn Beck says. can ensure better protection for death row prisoners The symposium will be held at Pipitea Marae in across the world, and to obtain recognition, in their Thorndon, Wellington and will include sessions that favour, of specific guarantees related to the specific are open to the media. ▪ particular vulnerabilities of death row inmates.” ▪
10 LAWTALK 927 · April 2019 NEW ZEALAND LAW SOCIETY
Law Society outlines The Law Society says delay should also be addressed ways to reduce by establishing an effective and efficient triage system, streamlining the process with fewer court events, and Family Court delays allowing parties to have legal representation at all stages in proceedings (including pre-proceedings). A significant reduction in delay in the Family “If these issues were immediately addressed, we Court could be achieved by implementing a number believe this would result in a significant reduction in of measures, the New Zealand Law Society says. delay and substantially reduce the number of without Details of the measures are provided by the Law notice applications.” Society in additional feedback to the Independent Panel examining the impact of the 2014 family justice reforms. Effective triage system needed The Law Society’s latest submission says it remains hope- An effective triage system would identify and enable ful that the current review will lead to design changes the most appropriate response available for parties that deliver sustainable access to justice for the many seeking assistance to resolve parenting and guardianship New Zealanders who need support in resolving their disputes. The Law Society says establishment of a new family disputes. Family Justice Sector Coordinator is a positive proposal Considering the issues around judicial resourcing and and such a role will be key in triaging matters either to delay, the Law Society says it is imperative that more an out-of-court or in-court process. To streamline the judicial hearing time is available in the Family Court, process with fewer court events, the Law Society says including the allocation of more judicial resource. It cases should be limited to four key court events unless supports the proposal for establishment of a new role circumstances require otherwise. of Senior Family Court Registrar (SFCR). “Files should be allocated to an individual case manager “The combination of both increased judicial resourcing at an early stage to ensure matters are dealt with and cases and the new SFCR role would have a significant impact are progressed to ensure that judicial sitting time is only on reducing delay so that matters are able to be heard in used when matters are ready to proceed.” a timelier way. If more judicial time is not available, we Complex cases need to be defined to they can be iden- believe that other proposed changes will not be sufficient tified early and triaged appropriately. The submission on their own, or collectively, to reduce the significant says complex cases need early and effective intervention delay currently experienced in the Family Court.” and should be case managed by an individual judge, with assistance from an SFCR and case manager. Delay significant problem Another factor in securing positive changes would be Delay is one of the most significant problems facing the the establishment of a robust IT platform which enables Family Court, and this is one of the reasons there has nationwide electronic filing for the Family Court. This been a dramatic increase in without notice applications would have significant cost savings and efficiences for since the 2014 changes, the submission says. the family justice system, the Law Society says, noting “It is essential that more judicial hearing time is that it is “well overdue”. made available ... to reduce the delays. That is a critical “The increased use of technology, such as Audio-Visual factor; without it, the other proposed changes will not Links (AVL) and teleconferencing would provide significant be adequate to make any substantial improvement.” cost savings and efficiencies in the family justice system.” ▪
11 NEW ZEALAND LAW SOCIETY April 2019 · LAWTALK 927
NEW ZEALAND LAW SOCIETY
Law Society appoints Proposed AML/CFT independent class exemption for barristers sole supported Board member
The Law Society says it continues to Christchurch-based social entrepreneur Jason support the limited class exemption for bar- Pemberton has joined the New Zealand Law Society’s risters sole from the Anti-Money Laundering Board. It is the first time that someone from outside the and Countering Funding of Terrorism Act legal profession has been actively involved in helping set 2009 which is sought by the New Zealand the Law Society’s direction. Bar Association. The Law Society has made a To meet the requirements of the Law Society’s consti- second submission on a second Ministry of tution, Mr Pemberton’s status is an independent Board Justice consultation paper on the proposal. observer. His role is paid and he has full speaking rights The paper seeks feedback on two potential at each meeting of the Board. options for the exemption. “Jason’s participation in Board meetings brings new The Law Society notes that, as the perspectives and experiences to the table. This is a very exemption would only apply where a important time for the Law Society and the legal profession barrister is instructed by the solicitor as we focus on initiating and implementing significant and the relevant barrister is carrying out cultural change,” says Law Society President Kathryn Beck. “captured activities”, the exemption is in “Until now the Board has been made up of the President practice very limited in scope. and four Vice-Presidents, representing Auckland, the cen- It says the risk of money laundering going tral North Island, Wellington and the South Island. It must undetected and unreported appears low, be stressed that they provide very sound governance and given the unique relationship that exists fully represent the views of the profession. This has now between a barrister and their instructing been enhanced by including someone from outside the solicitor when acting for a client and the profession who brings other viewpoints. distinct features of barristerial practice. “Our experiences and research over the past year have The Law Society says it considers that shown that a significant proportion of New Zealand’s option 1 would be acceptable in principle, lawyers operate in environments where stress, harassment with some amendments to reflect the and bullying and other workplace issues have a major realities of legal practice and the practical impact. We are totally committed to addressing this in a operation of the Act. The two options differ wide variety of ways which range from the Culture Change in that option 1 would exempt barristers Taskforce through improvements to the Practising Well from ss 10-22, 25-39, 48A-49, 51-52, 56-61 and initiative, the Gender Equality Charter, a focus on enhanc- 68-71 of the Act. Option 2 would exempt ing diversity, modifications to the regulatory mechanisms them from ss 10-22, 25-31 and 48A-48C. Both we operate under and also in the governance of the legal exemptions would be subject to the same profession. Jason Pemberton’s inclusion on the Board is conditions. another very welcome step on this road.” Under option 1 a barrister would be Mr Pemberton, 31, has a background in Human Resource required to file suspicious activity reports, Development and has been active in a wide range of char- conduct enhanced due diligence for an itable and social enterprise movements. His company You activity requiring a suspicious activity Think consults to initiatives with social or environmental report, and keep records of suspicious objectives at their heart, and he is a Director of Felt.co.nz – activity reports as well as identity and the online marketplace for goods and gifts, direct from New vertification records. Zealand makers. He was a co-founder of the University of Option 2 would mean a barrister was Canterbury Student Volunteer Army, and has governance subject to all other compliance obligations. experience in youth development, arts education, health The Law Society says it appreciates that and disability, design thinking, and with the New Zealand Ministry of Justice officials may not be National Commission for UNESCO. He was instrumental familiar with some of the nuances of the in the design and delivery of the Social Enterprise World instructing solicitor/barrister relationship Forum in Christchurch in 2017 and is currently writing a and that further discussion and explana- book in service of those working on social or environmental tion may be needed. ▪ projects. ▪
12 LAWTALK 927 · April 2019 NEW ZEALAND LAW SOCIETY
Specialist standards have required a formal Cost Assessment, Mosque attacks committee for fee- as opposed to 14% across other standards related complaints committees. and the legal The Costs Committee has also increased A standards committee specialising its focus on mediation as a means of community in fee-related complaints has been granted resolving fee-related complaints, with 18% permanent status by the Board of the New of its complaints resolved via agreement The legal community all shares a Zealand Law Society. between the parties. Susan Rowe, the sense of horror and disbelief at the events Standards committees are independent committee’s convener, says fee-related that unfolded in Christchurch on Friday, statutory committees that determine com- complaints are often ideally suited to 15 March, Law Society President Kathryn plaints against lawyers under the Lawyers mediation: Beck said in a message to the profession. and Conveyancers Act 2006. Committees “In many cases the complaint arises out “I urge the profession to come together, are made up of experienced lawyers and of a lack of communication by the lawyer and work together, as a strong, caring members of the public. They resolve around at the outset over the level of work needed and inclusive community. I am sure 1500 complaints per year. to complete a file,” she says. you will join me in expressing our The Law Society’s Lawyers Complaints “Mediation provides the client with an deepest condolences and solidarity Service (LCS) frequently receives fee-re- opportunity to express their concerns in with the families, friends and com- lated complaints. A 2017 snapshot revealed person and gives the lawyer a chance to munities suffering so deeply in the 25% of complainants raised concerns explain what work was completed. An wake of this national tragedy.” about overcharging, either generally or apology given in person, or an offer to In the week after the mosque attacks, the by exceeding a fee estimate. compromise on fees (even if relatively Law Society’s Canterbury Westland branch In October 2017 the Board established minor), goes a long way to resolving these was able to provide support and assistance a pilot Standards Committee (the Costs disputes.” to lawyers who were approached by vic- Committee), aimed at improving the timeli- While it is pleasing to see an improve- tims or their families for legal assistance. ▪ ness and efficiency of resolving fee-related ment in the resolution of fee-related complaints. Since its establishment, the complaints, in an ideal world these Costs Committee has focused on reducing disputes would be resolved without the the number of complaints requiring the intervention of the LCS. The New Zealand appointment of an independent Costs Law Society recommends lawyers clearly Assessor. set out their role and professional obliga- Costs Assessors are lawyers who vol- tions at the start of a retainer, by summa- unteer their time to review and report on rising the key terms of engagement. This HAYS LEGAL the fees charged. While Costs Assessors ensures clients know where they stand PARTNER WITH perform an invaluable service, their and what to expect from their lawyer. It THE EXPERTS appointment can extend the time needed can also facilitate open discussion and At Hays Legal we understand that the effectiveness of a legal department to resolve a complaint. reduce the risk of disputes reaching the depends upon its people. We help The Costs Committee has sought to stage of a formal complaint. In 2017 the jobseekers achieve their full potential reduce the number of Cost Assessor Law Society published information and by bringing them together with the right job. We are passionate about the appointments by allocating each complaint a model document to assist lawyers. This legal profession and the careers of the to a suitably qualified Committee member, can be found on the Law Society website people within it. to review the relevant fee matters on the in the section For Lawyers/Client care With offices across New Zealand, committee’s behalf. Costs Committee information. we combine local knowledge with members from across the country have The Costs Committee’s new measures a national perspective. This means been recruited for their experience in a have improved the timeliness of resolv- you receive an expert local service and have access to a nationwide pool range of legal fields. This gives the com- ing fee-related complaints by 35% – of talent and mittee the breadth of expertise to assess a fantastic result. The lessons learned from opportunities. most complaints. the pilot will now be shared with all stand- To find your ards committees to improve their resolution local office, visit Far fewer referrals of fee-related complaints. The New Zealand hays.net.nz The Costs Committee’s approach has Law Society thanks those committee mem- resulted in far fewer referrals to Costs bers who were a part of the pilot and now hays.net.nz Assessors – to date only 2.5% of its cases continue as permanent members. ▪
13 NEW ZEALAND LAW SOCIETY April 2019 · LAWTALK 927
NEW ZEALAND LAW SOCIETY
The President of the New Zealand Law Society
On 10 April 2019 Tiana Epati becomes the 31st elected we got from a number of President of the New Zealand Law Society. She takes quarters, including our own people. We had to have a over from Kathryn Beck, who has completed three years good hard look at ourselves as President. Kathryn and Tiana were asked to reflect and in many cases we didn’t on the role, the profession and their own situations. like what we saw. This was hard for people, especially those who behaved with integrity, were proud of their profession and hadn’t Kathryn Beck seen the things that were happening. But as a pro- fession we listened, we What stands out for you over the three years reflected and we accepted you have been Law Society President? that things had to change. The people. Throughout the last few years I have been There is still a long way to go but people consistently heartened by the quality of the people we are willing and there is a momentum and have in our profession. I have come across extraordinary genuine desire for change. generosity of spirit. People who give of their time and For some people this is exciting, they’ve energy when they are stretched themselves. People who wanted this for a while. They are impatient work hard for little or nothing because they believe in what to just get on with it. they do. People who stay calm and kind when things get Many are stepping back and taking a fraught, who operate with genuine compassion. Clever strategic approach to what the future of and creative people who see possibilities and pathways law looks like. They are excited too, but when others have hit dead ends. Good people. People they know that transformational change who enable us to have faith and pride in the profession. takes commitment over time. They believe in and operate with integrity and respect. Others are cautious and they are prob- They are the strength of the profession. They are in all areas ably tired. The practice of law is deeply of law and all types of practice. They believe in what they rewarding but hard. Change takes energy. do and they make a difference every day. Where can you find that in today’s busy It is our people that will be our point of difference in an world? Where do you even start? And, they increasingly depersonalised world and we need to value are worried that we will lose the good them and support them to thrive. things that make being a lawyer special. So, people are coming at it from different How would you describe the state of angles and, of course I know that some people have no New Zealand’s legal profession? desire to change at all, but in the main the state of the I think we are poised. profession is one of readiness and anticipation. We are on the brink of change; not to the fundamentals – We are ready to review what we do, how we do it integrity, respect, upholding justice or operating in the and where we do it. The world will not let us stand still. best interests of the client – but to how we operate on a Importantly we are ready to rethink how and what we day-to-day basis. value. We know we need to do that if we are to be sustain- People can feel it. Things are different. It’s uncomfortable. able in the future. What I am getting from the profession The world around us is changing rapidly and we have been is an absolute determination to remain relevant and prove slow in some instances to respond to that. I’m not just talking that we are a good profession. about digital disruption or new technologies. We were given We do not need to lose who we are to do that. There is a a massive wake-up call last year that our systems and culture particularly apt whakatautoki, Ka mua, ka muri “walking were harmful and we are a bit bruised from the battering that backwards into the future” – the idea that we should look to
14 NEW ZEALAND LAW SOCIETY
As a profession we listened, we reflected and we accepted that things had to change. There is still a long way to go but people are willing and and there is a momentum and genuine desire for change.
day, perhaps even more so in the role of President. And I get to work with people in all their glory, the good, bad, indifferent and fabulous.
Personally, how has being President of the Law Society left you? Ask me again in a few months because at the moment I’m knackered! I’m a bit bruised, last year took its toll and I struggled with some aspects of it but I never regretted being in this role. Deeply grateful that I have had this experience and that I have been able to contribute to the profession. Like I’ve still got so much more to do but okay that someone else will be doing it – we have a clever, strong and fierce champion for the profession in Tiana. Most of all I am proud, hopeful and determined the past to inform the future. We can look age (about 12). There were none in our family and I can’t that we will be a place to our core traditional professional values tell you why or what triggered it. There was no epiphany where people can come and such as integrity, respect and justice, that that I can recall. It was what I wanted to do. I believed in truly fulfill their potential. are still meaningful today and use them to what it stood for – which was upholding the rule of law I have absolute faith guide our transformation into a sustainable and fairness. I still believe in those things although I am in our profession and and inclusive profession. still learning every day about what they mean. I have because of that and the found that it is a place where I can use my intellect, my fabulous people who In 2019, what does being a experience, my imagination, skills and training to solve have supported and held lawyer mean for you? problems. me up. I feel that I am a This will be different for different people I get to work stuff out and hopefully make things better better person going out because the practice of law, while often without destroying things in the process... unless they than I was coming in. I very public, is also deeply personal. need to be. have learned a lot and for I wanted to be a lawyer from a young It is not abstract: the work I do impacts people every that I am deeply grateful.
15 In November, the Culture Change Taskforce will also deliver its report on long term culture Tiana Epati change. The Taskforce is a key player in devel- oping a strategic framework and action plan that will support the creation and maintenance What are the issues which are facing of healthy, safe, respectful, and inclusive legal New Zealand’s legal profession? workplaces. The 19-member taskforce repre- The issues affecting the profession are consid- sents a broad group of people, communities erable but also extremely varied. Currently, we and regions across our profession. It brings face the pressing need for fundamental culture together lawyers and non-lawyers of differing change, major advances in artificial intelligence ages and experiences from around the country. and technology, increase in regulation, and My immediate focus as President will be to access to justice for many in our country becom- look at the Law Society to ensure it has the ing increasingly out of reach. Unsurprisingly, organisational capacity and the right structure when lawyers were asked in the Law Society’s to ensure we can quickly start delivering on a annual survey what the major challenges for culture change strategy plan this year. Other them were, they said stress and anxiety. initiatives can begin right now. 2019 will be a year of delivery. We will be We will do some deep thinking in relation implementing the recommendations of the to major advances in technology which are Working Group led by Dame Silvia Cartwright on increasingly seeing the ‘middleman’ removed our regulatory system to ensure from transactions. More support we have an effective complaints and education will be needed for regime to deal with, and deter, I think being a lawyers currently grappling with unacceptable behaviour. These lawyer in 2019 this change to our practice envi- recommendations are relatively is about looking ronment. Regulating in this area complex and wide-reaching. at our individual will also create issues in a couple They include: changes to our place in the wider of years with the meaning of a Act, standards committees’ reg- profession, and ‘person’ and ‘property’ becoming ulations, the practice rules, CPD even Aotearoa, complicated by the emergence rules and rules of conduct and and asking of artificial intelligence and client care. Some have already ourselves “am crypto-currency. Having a strong been enacted – for example, the I doing enough relationship with the law schools setting up of a national special- and being enough will be a key feature given they ised standards committee to to fulfil the oath will need to re-think how we hear sensitive complaints. I took to become teach the practice of law. a lawyer?”
16 17 NEW ZEALAND LAW SOCIETY April 2019 · LAWTALK 927
We also need to provide the pro- What is also fession with clear guidelines in a positive is the changing regulatory environment. high level of In addition to the changes resulting engagement from the Working Group, our pro- from all parts of fession is still working through the the profession. challenges associated with AML/ We have some CFT. This is having a particularly fierce senior big impact on medium and small women lawyers firms who do not have the resource and mana wahine to cope. We will work with the who are driving Department of Internal Affairs to for change. provide clarity to the profession as we near the end of our first year under this new regime. Supporting the overall health and well-being of lawyers is a key priority. We need new and better funded ‘Practising Well’ initiatives, such as access to free counselling sessions for practitioners who are struggling, a separate stand-alone well-being unit or committee and a suite of resources for lawyers who are supporting other lawyers. Finally, we need to make some material advances on access to justice. There is a lot of academic research being undertaken and a recent triennial review of legal aid to which the Law Society provided comprehensive input. But we need to do more. We have an increasing number of lawyers declining to be providers of legal aid which is already affecting smaller regions. I want to see the Law Society drawing on all the work being done in this area and driving initiatives which support changes to our justice system to ensure people who are affected by legal problems can access legal assistance. Justice is done when there is competent and resourced counsel on both sides.
How would you describe the state of New Zealand’s legal profession? We clearly have work to do when it comes to behaviour and our workplace culture but the fact that 79% of the lawyers who responded to the workplace environment wanting to be involved in finding the solutions. I have survey said that, ultimately, their job gave them an also been impressed with the number of senior male immense amount of satisfaction tells us the New Zealand lawyers who are stepping up to champion change. We legal profession is in better shape than perhaps we think. have the highest level of engagement by the profession We are also considered more trustworthy by the public I have ever known in my almost 20 years of practice. I than lawyers in Australia. In a report on ‘The future of take a lot of pride and hope from the fact that everywhere trust,’ carried out for Chartered Accountants Australia you look there are lawyers from all backgrounds wanting and New Zealand (CAANZ) New Zealand lawyers were to be involved. Despite all the change occurring, I think seen as trusted by 72% by the respondents. This compares the profession is strong and resilient enough to come rather favourably to the 61% of respondents who trusted through to the other side. Australian lawyers. In 2019, what does being a lawyer mean for you? What is also positive is the high level of engagement from all parts of the profession. We have some fierce For those of us in senior positions, it means going back senior women lawyers and mana wahine who are driving to the reason you became a lawyer in the first place for change. Young lawyers have taken a particularly keen and drawing on our core ethics. Most, if not all, of us interest in what is happening, are future focused and are became lawyers to be of service to the community, do
18 LAWTALK 927 · April 2019 NEW ZEALAND LAW SOCIETY
Personally, how are you preparing for the next three years? I have given a great deal of thought over the last few months about what I can best do to help the profession progress. The challenges we faced in 2018 caused divisions. I believe an over-arching national mentoring scheme which supports existing programmes can help bring the profession together. It could also fill gaps in the profession and regions where lawyers do not have access to much support. All the research and anecdotal success stories highlight mentoring as a key component. Mentors often get as much out of the relationship as mentees, particularly in a reverse mentoring situation. I would like to see it made available to everyone in the profession, including admitted lawyers who have yet to find employment. I want to see mentoring sessions become CPD compliant if certain criteria are satisfied. Everyone wants to be involved and make an impact, so structured mentoring schemes run through the various branches of the Law Society is a way of bringing everyone together. I have given away almost my entire criminal practice to ensure I can commit the time required to being President of the New Zealand Law Society. The demands of the role are maybe the greatest they have been. something good and to make a positive impact. It is about remembering My President’s calendar is already that it is a privilege to be a lawyer and with that comes obligations and filled up to August. As I said, the responsibilities. We take an oath to be admitted into practice and we need year 2019 is about delivering on all to remember that. the work which was started in 2018. I read something the other day which said “if your dream does not include By the end of the year we will have a others, you are not dreaming big enough”. I think being a lawyer in 2019 blue-print for culture change and the is about looking at our individual place in the wider profession, and even organisational capacity to act. Aotearoa, and asking ourselves “am I doing enough and being enough to We then have 2020 and 2021 to fulfil the oath I took to become a lawyer?” It is ultimately about assisting keep delivering culture change and clients and ensuring the law is fulfilling its purpose to provide fairness. supporting the profession It is not a But, we also belong to a cohort with a collective reputation to uphold. We sprint, it’s a 1000-day marathon. So, all have our part to play in that. I am keen to keep some balance and I think it is also about having a holistic view to career progression and ques- ensure I have down time at home in tioning the value which can be placed on things like status and wealth. I am Gisborne with my family. And still not saying improving our own lives with financial stability and reward should have time to occasionally surf and never be part of joining the profession; I believe it should not be everything. go for a run on the beach. ▪
19 20 LAWTALK 927 · April 2019 THE JUSTICE SYSTEM
THE JUSTICE SYSTEM Celebrating two Chief Justices
you represent, often at times of great strain for them. BY GEOFF The judiciary appreciates very much the work of the ADLAM profession. We know its essentiality to our own and to the values we share.” Judging New Zealand’s judiciary has a new leader “I am not someone who subscribes to the ‘big man’ or following the swearing-in of Chief Justice ‘big woman’ theory of law. Law is the work of many hands. It is a great movement in which all of us play Dame Helen Winkelmann at the Supreme our parts: judges, the registry staff, the judicial support Court in Wellington on 14 March. staff, as well as the counsel who fashion the arguments and the academics who question the results. These institutions and traditions are strong.” Dame Sian Elias Access to justice Six days earlier, on 6 March, the court had been the “We have to be ambitious for a just society. It is no venue for a special valedictory sitting for retiring Chief use having an independent profession or independent Justice Dame Sian Elias. Appointed on 17 May 1999, judges if few can afford to get to court or obtain legal Dame Sian was 19 years and 9 months in the role – the representation. A legal order is no use if the law is unjust third longest of any of our Chief Justices. She was also or cannot adapt to prevent injustice. It is unlikely to be our first woman Chief Justice and her valedictory sitting fit for purpose if judges and lawyers have no insight into was held on International Women’s Day. Along with the lives and legal needs of the communities they serve.” Dame Lowell Goddard, Dame Sian was the first woman to be appointed Queen’s Counsel in 1988, and the first The Supreme Court woman to be appointed Dame Grand Companion of New “The establishment of a final court of appeal [the Zealand. She has been the first presiding judge for our Supreme Court] has been a highlight of my years in law. Supreme Court since it began to sit in 2004. It has opened up possibilities for New Zealand law that In her address, Dame Sian commented on a number were not available to the judges who served before us. of issues around the courts and our justice system: “In our work we usually do not give any thought as to whether we are making a distinct contribution to The legal profession New Zealand jurisprudence. We are too busy trying to “…we do not take enough time to speak about the do what is right according to law and the case in front importance of the profession to the rule of law. Sir of us. Anyway, that is not the nature of the enterprise. Owen Dixon thought it more important that there be A court does not organise the cases it hears. It does its independent lawyers even than that there be inde- bit with the cases brought to it. Nevertheless, there are pendent judges. I have had occasion in the past to differences in an apex court. Some of them we are still express agreement with that view and to say that the identifying and working through. depth of talent and decency we have in the profession “A final court should not sleepwalk in its function. It demonstrates its fitness to ensure that ours is a society has to be conscious always of how this bit of law fits under law, without which no one has security. On this with the architecture of the whole. It has to endeavour to occasion I want to express appreciation for the work make statutes and common law march together and be of the profession in making ours a just society. My life coherent. It has to believe in its role. If it cannot explain in the profession has been happy and fulfilling and I what it is doing and why, who will? If its members don’t have great admiration for the work you do and the believe in the court, who will? It is always necessary burdens you carry in representing the hopes of those in the work of a final court to leave room for second thoughts. As Lord Reid said in his celebrated ‘fairy-tale’ ◂ Dame Helen Winkelmann being sworn in as the speech, second thoughts are not always best, but they 13th Chief Justice of New Zealand at the Supreme generally are.” Court on 14 March. “[The Supreme Court courthouse] is not one of our
21 THE JUSTICE SYSTEM
historic courtrooms, which still echo with the footfalls of the past. It is not a place built to convey the majesty and power of the law or to command obedience. It is not indelibly stained with sad episodes in our history where doors have been shut and hopes dashed. It is instead a place built to express the hope of justice through law and the confidence that a new court will administer the laws in this country with knowledge of its own history and traditions. Cicero once suggested that the foundation of all law is the natural propensity we have to love our fellow man. I think of this place as one of love and justice. I have been very privileged to have served in it.” Serving as Chief Justice “A Chief Justice is not a manager or even a leader in any usual sense. One of the obligations of the Chief Justice is to ensure space for the independ- ence of each judge in judging. “I am very happy to relinquish office. I have had a truly wonderful ▴ Dame Sian Elias, the outgoing Chief Justice. Photo by Simon Woolf. time with amazing experiences and great personal satisfaction in the judicial work, but it is high time to Proceedings began with a pōwhiri delivered by representatives of the stop. I am delighted as we all are in mana whenua, Te Āti Awa. The senior Supreme Court judge, Sir William the new Chief Justice.” Young, administered the oath of office. Dame Helen took the Oath of Allegiance and the Judicial Oath in English and te reo Māori. Appeciation of Dame Helen’s achievements and her appointment plus Dame Helen a focus on access to justice was a strong theme of all the speeches made. Attorney-General David Parker noted that the appointment of Dame Helen Winkelmann, and her predecessor Dame Sian – the first two women to be appointed Chief Justice – was “an indication that the ledger is balancing towards equality”. Chief Justice of New Zealand Law Society President Kathryn Beck, New Zealand Bar Association President Kate Davenport QC and Auckland City Missioner New Zealand Chris Farrelly also addressed the court.
Dame Helen Winkelmann was Winkelmann CJ sworn in at a ceremony in the In her first address as Chief Justice, Dame Helen said she felt the weight of Supreme Court on 14 March, to the responsibility of the role she was sworn to perform. become our 13th Chief Justice. “I imagine the line of Chief Justices I join, stretching back to the first The swearing-in ceremony Chief Justice, Sir William Martin. I acknowledge this tradition of service. was attended by the leaders and I follow in the footsteps of a Chief Justice who has been a transformative prominent members of the legal figure in New Zealand’s legal system and society.” profession and judiciary. Those in As had Dame Sian a week earlier, Dame Helen paid tribute to the form attendance included the Governor- and substance of the Supreme Court. General Dame Patsy Reddy, the “Those who designed this [courthouse] did not look to the courts of England Heads of Bench, Justice Minister for their inspiration – they looked closer to home, to the kauri cone, with its Andrew Little, Attorney-General interleaved petals that give the cone strength and shield the seeds inside, David Parker, the Chief Justices of so that the hope for the next generation is protected. New South Wales and Victoria, and “The design is, I think, consciously a metaphor for this court, and more most of New Zealand’s senior courts broadly for the relationship that courts seek with New Zealand society. judiciary. It grounds this house and with it this court, Te Koti Mana Nui, in these
22 LAWTALK 927 · April 2019 THE JUSTICE SYSTEM
islands in the South Pacific. It conceives of the justice at such a ceremonial event. administered here as protective of our people, the people “But Mr Farrelly was invited to speak so that voices of New Zealand, so that our hopes of a safe and fair not usually heard in our courts are represented on this society can be fulfilled.” day. A day in which we think and speak of our hopes and expectations for the administration of justice. He The fulfilment of a vision reminded us to think of those who are marginalised, The creation of the Supreme Court was itself the fulfil- who are marginalised because they can’t engage with ment of a vision, Dame Helen said. the social and economic frameworks of our society for “A vision that important legal matters, including those whatever reason – and it’s most often poverty, sometimes related to the Treaty of Waitangi, should be resolved disability, ethnicity, or, as he identified, the experience with an understanding of New Zealand’s conditions, of trauma in their lives. history and traditions. A further desire was to provide “Without the ability to have their voices heard, the access to justice; New Zealanders would no longer marginalised are vulnerable for exploitation and abuse. have to travel across oceans to argue cases before We frequently see those who live in poverty in the judges, some of whom had never touched the soil of criminal jurisdiction of the courts but seldom in the our land or seen its rivers, mountains and forests.” civil jurisdiction. But those in the lower socio-economic She said the Supreme Court has woven the history brackets have very real and often very complex legal of our nation into important judgments concerning the needs. Lacking economic power, the poor – perhaps status of the Treaty. more than any other part of our society – need and “It has provided access to justice. A far greater number should be afforded the law’s protection.” of cases have been decided before this court, particu- larly in the criminal justice jurisdiction, than was ever Troubling obstacles to access to justice possible when our final court resided in Downing Street, There are significant and troubling obstacles to the London,” she said. achievement of access to justice, Dame Helen said. Dame Helen said that, as Chief Justice and the pre- Without knowledge of the law, many don’t know they siding member of the Supreme Court, she expected have a problem with which the law can help them. the court would continue to decide cases in a way fit “The cost of legal representation is so great that it is for the nation “drawing upon the richness of our two only the well-to-do who can afford a lawyer to repre- founding cultures, and utilising the intellectual wealth sent them in the court. And that really is a substantial and creativity to be found amongst our profession and challenge for the profession. There are few lawyers in our diverse society.” practising civil legal aid and fewer still in areas of need and the reasons for that problem are complex. For those The importance of courthouses who decide to go it alone and attempt to represent Being head of the judiciary did not, however, as was themselves, there is still a considerable cost barrier sometimes thought, involve making resourcing deci- of court fees and the difficulty of court procedure. sions. Providing resources to the courts in the form “The solution to many of these problems lies beyond of safe and effective courtrooms and systems was the the control of the judiciary but ... the judiciary cannot responsibility of the Executive arm of government, shy away from them. As Chief Justice I can use occa- although the judiciary had a least a voice in those sions such as this to highlight the issues and where resourcing decisions. I can be of assistance, I will support the work of the There was one comment only that she would make about profession and the community in the resourcing of the courts. The effective administration of removing the barriers that stand in justice depends on effective human interaction, she said. the way of those who would seek “Not all but many of the interactions need to be on a “Those in the the shelter of the law.” face-to-face basis. The presence of courthouses in which lower socio- lawyers can meet with their clients and in which judges economic Live streaming can see and talk to defendants in person is a holding brackets have The event was live streamed. Dame thread in our justice system. Courthouses represent the very real and Helen noted this, commenting that presence of law in towns throughout New Zealand. The often very the important ideas and concepts, people who work within the courts are leaders of their complex legal and the expectations that had been community. They are a source of knowledge as to how needs. Lacking addressed to her as the incoming the system works, and for those who do not have the economic Chief Justice could be heard by means to pay for legal advice, sometimes they are the power, the poor those beyond the four walls of the only source of knowledge about the law.” – perhaps more courtroom. than any other “And, of course, there will exist Voices not normally heard part of our society a record of my words today. That One of the speakers before Dame Helen delivered her – need and should means, that when in the future, I address was Auckland City Missioner Chris Farrelly. be afforded hand over to the 14th Chief Justice, Dame Helen noted that it was a small departure from the law’s I can be measured against the ideas convention to have a person who is not a lawyer speak protection.” and ideals of which I have spoken.” ▪
23 THE JUSTICE SYSTEM April 2019 · LAWTALK 927
THE JUSTICE SYSTEM New Zealand’s judiciary at 14 March 2019
BY GEOFF ADLAM
Unfortunately 2018 Census details will not On 14 March as our new Chief Justice was sworn in, New Zealand be available until near the end of 2019. had a permanent judiciary of 237. They had been members of the judiciary The Judicial Office for Senior Courts did for an average of 10 years and 6 months and 65% were men. not provide information on the ethnicity The following table shows the judiciary in each of the courts at 14 March, of senior courts. The office of the Chief with the average time since appointment over judicial careers and also District Court Judge stated at 1 March since appointment to a particular court. Acting judges are not included. 2019, 18 District Court judges were Māori, At that date there were also one Acting Supreme Court Judge (male), 26 3 were Pasifika, and 2 were Indian. It Acting-Warranted District Court Judges (5 women and 21 men), two Acting noted that some judges identify with Māori Land Court Judges (both male) and one Acting Employment Court more than one ethic group. The Māori Judge (male). Judge Damian Stone was sworn in as a Māori Land Court Land Court advised that of the 11 per- Judge on 22 March and is not included in the table below. manent and two acting members of the Court, 11 identified with and had Māori New Zealand judiciary at 14 March 2019 ancestry. Avg. time Avg. time in Court Women Men Total as Judge this court Education and legal career Supreme 3 2 5 17y 9m 4y 4m Information on the careers of senior court Appeal 2 7 9 12y 1m 2y 11m judges shows that the highest number High 14 26 40 6y 10m 5y 9m completed a law degree at the University of Auckland. Associate Judges are included Associate High 1 7 8 8y 1m 6y 10m in the High Court figures. Information is Employment 2 2 4 4y 7m 4y 3m not available for the other courts. Māori Land 5 6 11 12y 4m 12y 4m Completion of law degree District 55 105 160 11y 3m 11y 3m by senior courts judiciary Total 82 155 237 10y 6m
Average ages
Judicial retirement is required when a judge turns 70. Inquiries to judicial Court Auckland Canterbury Otago VUW offices and supporting agencies indicate that the average New Zealand judge Supreme 3 1 1 can expect about another decade in office before reaching retirement age. Appeal 3 1 2 3 The Crown Law Office has advised that the average age of all senior High 16 10 7 15 court judges, excluding Associate High Court judges, is 61.2 years old. The Office of the Chief District Court Judge advised that the average age Total 22 12 9 19 of a Distict Court judge is 60. The average age of permanent Māori Land Court judges is 52. Exactly half of the senior courts judiciary were practising as barristers on appoint- Ethnicity ment – either as Queen’s Counsel or Information on judicial ethnicity was sought from the judicial offices barristers sole. District Court judges are and supporting agencies. The last public information came from the 2013 more likely to be working in law firms Census. This showed that in March 2013, 93% of judges said they were on appointment, with 31% practising as of European ethnicity, with 10.8% saying they were of Māori ethnicity. barristers on appointment.
24 LAWTALK 927 · April 2019 THE JUSTICE SYSTEM
Role on appointment to judiciary
Court firm L aw Sole Practice Queen’s Counsel Barrister sole Govt. Other * Supreme 2 — 1 1 1 — Appeal 5 — 3 1 — — High 15 — 15 10 6 2 Employment 1 — 1 — 2 District 86 10 2 48 8 6 Māori Land 6 — — 1 — 4 longest-serving for the High Court (appointed a Master – Associate Judge – in 1995 and then a High Court Judge in Total 115 10 22 61 17 12 November 2002), and Chief Judge Inglis longest-serving * Includes universities, local authorities, NZ Law for the Employment Court (September 2011). Society, NZ and international tribunals. And remuneration Supreme Court judges were first appointed to the judiciary Judicial remuneration is set by the Remuneration Authority on average 19.8 years after their admission as barristers and under the Remuneration Authority Act 1977. The latest solicitors. Court of Appeal judges were first appointed an determination was made on 18 December 2018 and set average of 26 years after admission and High Court judges remuneration for the period from 1 October 2018. In were first appointed to the judiciary on average 29.8 years this the Authority abolished a principal allowance for after their admission as barristers and solicitors. Detailed general expenses, saying it “is redundant in this modern information is not available for the other courts. world”. From now on, judicial remuneration includes the grossed-up principal allowance for general expenses. Some District Court judges positions received a higher increase to address historical The Environment Court is not a division of the District Court relativity issues. but all Environment Court judges are considered District The Authority is required to have regard to a number Court judges. Of the nine Environment Court judges, three of factors when setting judicial remuneration and allow- are women and six are men. Environment Court judges ances. The total remuneration in the latest determination have had an average of 11 years and 6 is as follows. The combined salary and principal allow- months since their appointment. ance determination for the previous year is shown for While 34% of District Court judges are comparison: women, analysis of the warrants issued shows that 47% (27 of 58) of the Family Total salaries (including principal allowances) warrants are held by women. However, 2017 Judicial officer 1 Oct 2018 1 Oct 2017 to 2018 just 21% of civil trial warrants (10 of 48) are held by women. Women hold 23 (43%) of Chief Justice $553,100 $540,300 ▵ 2.4% the 54 Youth Court warrants and 30% (32 Judge of Supreme Court $518,400 $506,300 ▵ 2.4% of 105) of jury trial warrants. President of Court of Appeal $518,400 $506,300 ▵ 2.4% Longest tenure on the bench Judge of Court of Appeal $486,500 $474,800 ▵ 2.5% Of permanent members of the judiciary Chief High Court Judge $486,500 $472,800 ▵ 2.9% who are serving at present, District Court Judge of High Court $464,100 $452,400 ▵ 2.6% Judge David Saunders has been longest on Associate Judge of High Court $369,000 $345,000 ▵ 7.0% the bench, since 3 December 1993. Other Chief District Court Judge $463,200 $451,800 ▵ 2.5% judges who have a long tenure are Judge Principal Family Court Judge $397,600 $393,200 ▵ 1.1% Tony Adeane (16 December 1993), Judge Jane Lovell-Smith (3 March 1994), Judge Principal Youth Court Judge $385,700 $371,300 ▵ 3.9% Brian Callaghan (7 July 1994), District Court Principal Environment Judge $385,700 $371,300 ▵ 3.9% Chief Judge Ann-Marie Doogue (21 July District Court Judge $348,700 $345,000 ▵ 1.1% 1994) and Māori Land Court Chief Judge Chief Judge of Employment Court $434,900 $430,000 ▵ 1.1% Wilson Isaac (11 March 1994). The long- Judge of Employment Court $393,100 $388,900 ▵ 1.1% est-serving member of the Supreme Court bench is Justice William Young (appointed Chief Judge of Māori Land Court $397,600 $393,200 ▵ 1.1% 1 July 2010), with Justice Christine French Deputy Chief Judge of Māori Land Court $375,100 $371,000 ▵ 1.1% (6 August 2012) longest-serving for the Judge of Māori Land Court $348,700 $345,000 ▵ 1.1% Court of Appeal, Justice Geoffrey Venning
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PEOPLE IN THE LAW ON THE MOVE
Honour for Chief Justice says Mr Edwards has of the Clerk and adviser to the Privileges a global reputation in Committee and the Regulations Review Chief Justice Helen Winkelmann was privacy and is a fear- Committee. Debra has been a Crown appointed a Dame Grand Companion of the less advocate for his Counsel and worked with a range of public New Zealand Order of Merit on 4 March. Commission. sector agencies. Her honour was approved by the Queen, on Mr Edwards was the recommendation of the Prime Minister. appointed in February Buddle Findlay appoints “This appointment recognises the signif- 2014. Previously he was senior associates and icance of the role of Chief Justice in New a practising lawyer with over 20 years’ senior solicitor Zealand society and in our constitutional experience in public law and policy who arrangements,” Prime Minister Jacinda provided general corporate services for a Ana Coculescu has joined Buddle Findlay’s Ardern said. “The Chief Justice is the head number of ministers and Crown entities as Wellington office as a senior associate in of the judiciary, and the link between well as advice and training on information the environment and resource management the judiciary and the other branches of law issues across the public sector. Mr team. Ana advises both government.” Edwards also regularly undertook inves- private sector clients Appointment as a GNZM is limited to tigations and reviews for departments, and government clients 30 ordinary members. Additional appoint- Crown entities and ministers. on resource manage- ments over this limit may be made to ment law, contaminated commemorate important Royal, State or Director of Human Rights land, local government national occasions. This is an additional Proceedings appointed law, environmental due appointment. diligence, waste and The retiring Chief Justice, Dame Sian Michael Timmins has been appointed acquisition of land for public works. Before Elias, was appointed a GNZM in 1999. Director of Human Rights Proceedings. Mr joining Buddle Findlay, Ana practised envi- Timmins holds an LLM from the University ronment and planning law in New South Graeme Colgan of Michigan and an LLB/BA from the Wales for nearly 10 years. elected UNAT Judge University of Auckland. He specialises in Sarah Chin has joined Buddle Findlay’s international human rights law and has Auckland office as a senior associate in the Former Chief Employment Judge Graeme been working as a consultant and barrister corporate and com- Colgan has been elected by the United in Auckland and Sydney since 2015. His mercial team. Sarah Nations General Assembly to be one of areas of practice include administrative specialises in corporate three new judges on the seven-member law, extradition, intellectual property, and commercial law, UN Appeals Tribunal privacy, refugee and immigration law with a focus on mergers (UNAT) for a seven-year and non-profit governance. Mr Timmins and acquisitions, joint term from 1 July 2019. has worked in Egypt, the United States, ventures, overseas The UNAT is the final Australia, Thailand, Pakistan and New investment, corporate appellate court in Zealand across roles in advocacy, academia governance and commercial contracts. employment-related and government. Before joining Buddle Findlay, Sarah disputes involving the worked at a large national commercial staff of the UN and most Debra Angus joins law firm. other international agencies. It convenes Lambton Chambers Kate Bradley has re-joined the firm’s three times a year, principally in New York Christchurch office as a senior solicitor but also in Geneva and Nairobi. Mr Colgan, Debra Angus has joined Wellington’s in the corporate and who will continue his local practice as a Lambton Chambers as a barrister sole. commercial team. Kate barrister and employment law specialist, Debra has a wide range of experience in advises on a range of is the first New Zealander to be elected public, parliamentary property, corporate to the UNAT. and constitutional law, and commercial mat- as well as maritime, ters with a particular Privacy Commissioner regulatory, health focus on development reappointed and safety and public and construction. Kate finance issues. She returns after three years working in the John Edwards has been reappointed was the Deputy Clerk real estate department of a central London as Privacy Commissioner for a further of the House until top tier law firm where she specialised in term. Justice Minister Andrew Little 2015, a Legislative Counsel in the Office development and construction.
27 ON THE MOVE · PEOPLE IN THE LAW April 2019 · LAWTALK 927
PEOPLE IN THE LAW ON THE MOVE
Paula Ormandy in the establishment of the New Zealand Property Law Society of Australia and New appointed Kensington Infrastructure Commission – Te Waihanga. Zealand. Swan partner Ms Sinclair is a specialist in procure- ment, infrastructure, construction and Wynn Williams Kensington Swan project finance (including PPPs). She has announces partnership has appointed Paula worked in private practice and in-house in with NZ String Quartet Ormandy as a partner the infrastructure and construction sectors, in its national property both internationally and in New Zealand. Wynn Williams has announced a partner- team. Admitted as a ship with the New Zealand String Quartet. barrister and solicitor Commission for Financial The Quartet was formed in 1987 and per- in September 2007, she Capability Adjudication forms over 60 concerts in New Zealand each joins the firm from Bell Panel appointment year along with international concerts. As Gully. Paula has 12 years’ experience with a charitable trust it works with children on top tier firms, advising in all aspects of Auckland barrister Anita Killeen has been specialist string programmes to assist their commercial property. Her specialty exper- appointed as an Adjudication Panel Member communities with affecting social change. tise is in property development, complex for the Commission for Financial Capability. It coaches outstanding young musicians at leasing deals and high-value portfolio Ms Killeen was admitted in January 1999 its annual Adam Summer School in Nelson. acquisitions and disposals. and practises from Auckland’s Quay Chambers, specialising in financial crime Merger of firms Honour for John Clark and fraud, civil and criminal litigation, and governance and decision-making. From 1 February, Ngapo-Lipscombe Law It has been pointed out that we missed a and K J Hooks – Barristers and Solicitors former lawyer from the list of members of Simpson Grierson have merged and are now NL Lawyers – the legal profession and justice community appoints special counsel Barristers and Solicitors with offices in who received New Years’ Honours (LawTalk Tokoroa and Putaruru. 925, February 2019, page 14). John Leonard Simpson Grierson Clark received a Queen’s Service Medal for has appointed Sarah Two senior promotions services to the community. Mr Clark was Chapman as a special at Morris Legal chairman of the Cornwall Park Trust Board counsel in its intellec- from 2011 to 2017 and had been a trustee tual property group. Georgia Angus was since 1991. Our omission is regretted. Sarah will co-lead the promoted to the role group. She has over 20 of senior associate on Lawyer on Infrastructure years’ experience in 1 December. Georgia Commission intellectual property law. She specialises began working at Morris establishment panel in advising local and international clients Legal in November 2016. on trade mark law, including portfolio Her clients include MinterEllisonRuddWatts partner management, registrability, infringement charities, professional Sarah Sinclair has been appointed as and licensing. A BA and LLB graduate of trustees and high net worth individuals. a member of the panel of private and the University of Auckland, Sarah is on the Georgia is an experienced litigator and has public sector experts to support Treasury New Zealand committee of the Intellectual appeared in the Family Court, District Court, High Court and Court of Appeal. Aria Newfield was promoted to the role of senior solicitor on 1 December. Aria joined Morris Legal in November 2017. Since that time, Aria has had extensive involvement in contentious trust, estate and relation- ship property matters. Aria has represented clients in both the Family Court and High Court and at mediation.
28 LAWTALK 927 · April 2019 PEOPLE IN THE LAW · ON THE MOVE
Joanna Trezise joins general practise with a particular focus on variety of business and lifestyle assets. Glenie Legal commercial and company law. Alison Maetzer was admitted as a barrister and solicitor Joanna Trezise has Hannah Stuart joins in 2001 and joined joined specialist lit- Quay Chambers the firm’s dispute res- igation firm Glenie olution team in 2007 Legal as a senior Hannah Stuart has as a solicitor special- solicitor. Joanna pre- joined Auckland’s ising in all aspects of viously worked as a Quay Chambers as a employment law. Her commercial litigator barrister sole. Hannah background includes at Bell Gully, then as has experience working large firm and in-house local government a regulatory litigator and prosecutor at for a range of clients on experience. Alison regularly represents cli- Meredith Connell where she specialised a variety of different ents at mediation and in the Employment in competition and consumer law. Before criminal matters. She Relations Authority and has appeared in qualifying as a lawyer, she gained an has also assisted many professional clients the Employment Court. MA (First Class Hons) in Art History and in addressing patient/client complaints, worked for several years in galleries in enquiries from regulatory authorities, Three lawyers join Auckland and London. Joanna will work and disciplinary investigations and pro- Todd & Walker Law on all types of commercial disputes, with ceedings. Hannah appears on matters in a particular focus on competition and the District Court, High Court, Court of Queenstown and Wanaka firm Todd & regulatory law, public law, and property Appeal, Health Practitioners Disciplinary Walker Law has welcomed three new and construction disputes. Tribunal, Teachers Disciplinary Tribunal, lawyers. Parole Board and the Human Rights Review Peter Sygrove has Steindle Williams Tribunal. joined the firm as a Legal Ltd appoints senior associate in the two directors Hesketh Henry promotes commercial property three to partnership team. Peter has worked Steindle Williams Legal Ltd has announced in top tier law firms in the appointment of two directors. Hesketh Henry has promoted three senior New Zealand and inter- David Hoskin has joined the partner- team members to partner. nationally. He is a spe- ship effective 1 November 2018. Formerly Hak Jun Lee joined cialist in in all aspects of commercial law a barrister, he began the firm as a senior including buying and selling real estate, contracting to Steindle associate in 2015. After retail and office leasing, property finance Williams Legal in 2010 graduating from the transactions and has advised clients on and has since devel- University of Auckland the management of substantial commercial oped a busy litigation he was admitted as a property portfolios. Peter also has specific practice. He has over barrister and solicitor in expertise in all matters relating to the 27 years’ experience in 2001. He is also admit- Overseas Investment Act. matters ranging from ted to practise in New York and New South Kirsty Allan has the District Court to the Court of Appeal, Wales. Hak Jun specialises in commercial joined as a solicitor in as defence counsel in criminal proceedings, property and property finance and is the the criminal and family and in complex commercial cases repre- head of the firm’s Asia practice. law teams. Kirsty was senting individuals, businesses and large Emma Tonkin was admitted in 2016 and is companies. admitted as a barris- an experienced crimi- James Stewart has ter and solicitor in nal defence litigator, been made a partner September 2000 and regularly representing effective from 10 joined Hesketh Henry’s clients in the District Court on a raft of December 2018. He private wealth team criminal matters. Kirsty also specialises was admitted in 2007 in October 2018. She in family law with particular expertise and joined Steindle specialises in private in providing advice on care of children Williams Legal in that wealth, real estate and overseas investment matters and separations. same year. Since joining and is an expert on the Overseas Investment Lucy Pankhurst has joined as a solicitor the firm he has worked in most areas of Act 2005. Emma has advised on a wide after recently completing her law studies at
29 ON THE MOVE · PEOPLE IN THE LAW April 2019 · LAWTALK 927
PEOPLE IN THE LAW ON THE MOVE
the University of Otago. Chapman Tripp Rachael Jones is in the litigation and She was admitted as a promotes solicitors dispute resolution team. Rachael spe- barrister and solicitor in cialises in contentious public and private November 2018. Lucy is Chapman Tripp has promoted 10 new law litigation, including constitutional working to develop her senior solicitors, effective from 1 March. challenges, Māori legal issues, intellectual experience in resource Robbie Bennett is in the Auckland prop- property disputes and fair trading claims. management and envi- erty and real estate team. Robbie special- She has appeared in the Supreme Court, ronmental law. ises in all aspects of commercial property Court of Appeal and High Court. law, including development, acquisitions, Dickson Lee is in the Auckland finance Richard Broad appointed disposals, leasing and subdivisions. team. Dickson advises on transactional and to Asiaciti Trust Group Alasdair Long is in the Auckland property corporate finance needs, with a particular management team and real estate team. Alasdair specialises in focus on capital markets. He advises on commercial property with a focus on devel- a broad range of transactions, including Asiaciti Trust Group has appointed Richard opment and investment. His experience Kauri issues, retail/wholesale bond offers, Broad as managing director for its New includes assisting local and international derivatives and the impact of the Financial Zealand office. Admitted as a barrister and clients with overseas investment matters, Markets Conduct Act 2013. solicitor in February 1982 after graduating complex subdivisions, commercial leasing, Briar Peat is in the Auckland cor- from Victoria University of Wellington, and the acquisition and divestment of sig- porate and commercial team. Of Ngāti Richard has worked at law firms in London nificant real estate portfolios. Rangiwewehi and Ngāti Whakaue and Wellington, specialising in trusts, Liora Bercovitch is in the Auckland descent, Briar advises on a wide range estates, property, commercial law, compa- litigation and dispute resolution team. of corporate and commercial matters, nies and finance. Before joining Asiaciti he Liora has expertise in contract and com- with a particular focus on post-treaty was Head of Legal, Personal Client Services mercial litigation. She advises corporate settlement transactions, mergers and at Perpetual Guardian New Zealand. and private clients on a wide range of acquisitions, joint ventures and collective disputes including tort and contractual iwi arrangements. Davida Dunphy joins DLA claims, defamation and privacy issues, Richard Hutchison is in the Wellington Piper NZ partnership and regulatory matters. litigation and dispute resolution team. Moria Brengauz is in the Auckland liti- Richard has experience working on a Davida Dunphy has gation and dispute resolution team. Moria range of commercial litigation matters, and joined the New Zealand advises on a range of insolvency matters specialises in insurance, construction and partnership team at and various litigation claims, including statutory liability disputes. DLA Piper. Admitted as contractual disputes and natural disaster Amy Hill is in the Christchurch a barrister and solicitor insurance environment, planning and resource in November 2005, she William Cheyne is in the Auckland management team. Amy specialises in is a member of the real litigation and dispute resolution team. resource management, environmental estate team. Davida’s William specialises in complex commercial law and civil litigation. She has experi- particular experience is in commercial litigation. He advises clients on a wide range ence advising clients from a variety of and mixed-use development, acquisitions/ of commercial disputes, including those sectors on matters including planning disposals, portfolio management, land involving property, competition, construc- processes, consenting, environmental ownership structures and forestry matters. tion, tax, and international law aspects. compliance and judicial review.
30 LAWTALK 927 · April 2019 PEOPLE IN THE LAW · ON THE MOVE
Two promoted by and capital markets Contracts Act 2002, arbitration, court Saunders Robinson Brown transactions as well as litigation and mediation. corporate governance Greg Simms joins the Auckland office as Christchurch law firm Saunders Robinson matters. Before joining a senior associate in the national dispute Brown has announced two promotions, Flacks & Wong she was resolution team. Greg has experience in a effective from 1 March. a senior associate at broad range of complex commercial litiga- Michael Vanner has Herbert Smith Freehills tion matters, arbitration proceedings and been appointed an in London and a solic- regulatory investigations. Having worked associate. Admitted itor at Bell Gully in Auckland. Katie has in London at a Magic Circle firm for the in 2013, Michael is a also undertaken secondments at Carter past five years, Greg also has extensive member of Saunders Holt Harvey, assisting its business units international experience in commercial Robinson Brown’s com- with a range of commercial agreements disputes and investigations. mercial team, having and transactions. Kimberley Wong has joined the firm’s previously worked in national corporate and commercial team the property team. Michael specialises Wynn Williams as a senior associate, also based in the in commercial property transactions and appoints partners and Auckland office. Kimberley has national development, subdivisions, leasing, busi- senior associates and international experience, with a ness sales and purchases and construction particular focus on mergers and acquisi- matters. Wynn Williams has announced the tions, private equity and venture capital Rebecca Mao has appointment of two partners and seven investment. been appointed a senior senior associates. Five of the firm’s associates have also solicitor. Rebecca was Andrew Watkins has been promoted to been promoted to senior associate. The firm admitted in 2016 and partner in the national dispute resolution would like to congratulate its five associates is a member of the team after joining the firm in December promoted to senior associate, who include: commercial team spe- 2018. Andrew is based in the Christchurch Richard Hargreaves is a senior asso- cialising in commercial office and has over 25 years’ experience ciate in the national dispute resolution property transactions, specialising in complex relationship prop- team and is based in Christchurch. He leasing, intellectual property, business sale erty estate matters. Andrew has a special has an honours degree in law from Oxford and purchases and company law. interest in trust law, having presented University and was admitted to the bar at numerous national conferences over in England in 2010 and started at Wynn Holland Beckett the last 15 years on its interplay with the Williams in 2012. Richard is a civil litigator Law promotes Property (Relationships) Act 1976. with a background in insurance law. Jeremy Sparrow Rebecca Saunders joins the firm as a Tiana Ritchie is a senior associate in partner in the national dispute resolution the national dispute resolution team. Tiana Bay of Plenty firm Holland Beckett Law has team. She is based in the Auckland office joined the firm in February 2015 after grad- promoted Jeremy Sparrow to associate. and specialises in construction law, in uating from the University of Canterbury. Jeremy practises from both the Tauranga particular resolving construction related She works primarily on complex commer- and Rotorua offices. He started his legal disputes. Rebecca has broad national and cial disputes and has developed particular career in the firm’s litigation team in 2012 international experience in construction experience in trust law and Māori land law. and then worked in London for two years adjudication under the Construction Tiana is based in Christchurch. as a litigator resolving commercial and tax disputes. He returned to the firm in January 2018 and specialises in employ- ment, health and safety, civil litigation, criminal law and debt recovery.
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31 ON THE MOVE · PEOPLE IN THE LAW April 2019 · LAWTALK 927
PEOPLE IN THE LAW ON THE MOVE
Nicholas Lawrence is a senior associate of England and Wales Phoebe Parson. The scholarships are worth in the national dispute resolution team, in 2007. She moved to up to $11,000 each and are for students based in Auckland. He has been with the New Zealand in 2009 doing postgraduate study in any area of law. firm for four years after graduating from the and was admitted as a Masters student Thilini Karunaratne’s University of Canterbury. Nicholas works on barrister and solicitor research focuses on issues surrounding complex commercial disputes and regularly in December 2011. She privacy, particularly in New Zealand, but advises on insolvency, insurance, trusts, is a litigation special- she also hopes to compare New Zealand defamation and regulatory issue. ist working with the with other jurisdictions such as the UK and Kirstie Wyss is a senior associate in the firm’s insurer and council clients. India. Phoebe Parson is a PhD student. Her national resource management team and Kent Perry has been doctoral thesis explores the legal frame- is based in Christchurch. She specialises in promoted to senior works for managing natural resources resource management, environmental and associate. Kent was in New Zealand, particularly looking at local government law and has particular admitted in August geothermal, fisheries, and Crown-owned expertise in advising regional councils on 2009 and worked for mineral resources. the development and implementation of Heaney & Co between Norris Ward McKinnon partner Dan freshwater management plans. 2010 and 2012 before Moore says the scholarships connect stu- Kate Woods is a senior associate in heading overseas. He dents to the real world of law in practice the national resource management team, joined the firm upon his return to New and allow the firm’s staff as practitioners based in Christchurch. She worked in Zealand in January 2017. Kent works with insight into the topics of specialised London for several years before joining the firms’ litigators for their insurer, real research going on in the legal services the firm and also spent three years with estate and council clients. industry. another New Zealand law firm. Kate has Corbin Child has experience in district and regional resource been promoted to Anthony Harper acquires management matters. associate. Corbin was and promotes staff admitted in 2012 and Hayden Smith joins worked with a special- Anthony Harper has announced a number Burton Partners as ity insurance litigation of new appointments and promotions. Special Counsel firm until he joined Lucy George has Heaney & Partners in been promoted to Hayden Smith has joined Burton Partners September 2017. He works with the firm’s senior associate. She as special counsel. A litigators for their insurer, real estate and has expertise in com- graduate of Auckland council clients. mercial and regulatory University, Hayden was litigation (including admitted in 2005 and Norris Ward McKinnon financial services reg- has since practised in awards 2019 scholarships ulation). Lucy recently the field of corporate returned from London where she was and commercial law. Hamilton law firm Norris Ward McKinnon in-house counsel for a major retail bank. His principal focus is on has awarded its 2019 University of Waikato Before moving overseas she worked in the mergers and acquisitions, joint ventures, scholarships to Thilini Karunaratne and competition, public and regulatory law capital raising, commercial contracts and corporate advisory. Hayden has particu- lar expertise in the area of warranty and Bronwyn Carruthers indemnity insurance. Shortland Chambers is pleased to announce that Bronwyn Carruthers has joined as a member. Promotions at Bronwyn is a specialist resource management litigator. She has Heaney & Partners advised on a wide range of resource management and planning issues with a focus on consenting, plan making, judicial review, designations, declarations and enforcement action. Heaney & Partners have announced three We wish Bronwyn well in her career at the bar. promotions, effective from 1 April. Charlotta Harpur has been promoted to senior associate. Charlotta was admit- www.shortlandchambers.co.nz ted as a solicitor of the Supreme Court
32 LAWTALK 927 · April 2019 PEOPLE IN THE LAW · ON THE MOVE
team at a large firm in Auckland. Caroline was admitted in 2017 and has Tim Grimwood an LLB from the University of Canterbury. has been promoted to Oliver Towle has senior associate. Before joined the litigation law he had a varied team as a solicitor. He Contributing information career in the health was admitted in 2017 to On the Move sector in the United and has an LLB from Brief summaries of information Kingdom and New Victoria University about promotions, changes in law Zealand. He was admit- of Wellington. Oliver firms, recruitment and retirement ted in 2011 after graduating LLB(Hons) began his legal career are published without charge in On at Victoria University and specialises in as a junior barrister at an Auckland-based the Move (which is also available litigation. He worked in general practice chambers. online). Please send information as litigation in Rotorua for five years before Hannah Meikle has joined the lit- an email or MS Word document (no moving to Christchurch. igation team as a solicitor. She has PDFs please) to editor@lawsociety. Harriet Quinlan moved to New Zealand from the org.nz. Submissions should be has been promoted United Kingdom where she worked for three or four sentences without to senior associate in large national and international firms. superlatives and may be edited to the litigation team. Hannah specialises in litigation and dis- conform to the format used. A jpeg She works on general pute resolution. photo may be included – along with commercial litigation Tamara Webster has permission to use the photo. matters, with a focus re-joined the retirement on construction and village team as a solic- insolvency disputes. Harriet was admitted itor after a year-long in 2012 after graduating BA LLB from the OE in Europe. She has University of Otago. She previously worked worked in-house in the Advertising in LawTalk at a large firm where she acted in a broad public health sector in and LawPoints range of commercial disputes. New Zealand and the Inquiries about advertising in Lucy Player-Bishop United Kingdom. Tamara was admitted LawTalk or LawPoints can be has been promoted to in 2015 and has BA and LLB(Hons) from made to advertising@lawsociety. associate in the litiga- the University of Auckland. org.nz. A media kit with details tion team. She has been of advertising requirements and involved in a broad Bell Gully welcomes charges is available on the Law range of commercial two senior associates Society website in the News and litigation, including Communications ▸ LawTalk section. claims for breach of Bell Gully has welcomed two new senior directors’ duties, prejudiced shareholder associates. claims, and trust and intellectual property Melissa Ahlefeldt specialises in com- disputes. She has BA and LLB(Hons) from mercial contracting and legal advice across the University of Canterbury and was both public and private sectors. She was Contributing articles admitted in 2015. admitted in 2011 in Australia graduating to LawTalk Hailee Forde has joined the firm’s cor- LLB(Hons) from the Australian National We welcome articles related to the porate advisory and banking and finance University. Melissa was most recently a New Zealand legal profession, at teams as a solicitor. Hailee was admitted senior associate at Ashurst. work or leisure. All contributions in December 2017. Courtenay Mercier specialises in and inquiries about submission Caroline Edwards employment law and regulatory and leg- of articles can be emailed to has joined the firm’s islative compliance across the public and the Managing Editor, editor@ immigration team as private sectors. Courtenay was admitted lawsociety.org.nz. Contact before a solicitor. She has in 2005 in Alberta (Canada) graduating LLB submission of an article is preferred. worked in immigration from the University of Manitoba. She has The New Zealand Law Society law for over 10 years, as worked at several large Canadian law firms, reserves the right to edit all material an immigration adviser most recently as an associate at Reed Pope submitted for publication. and now solicitor. Law Corporation since 2013.
33 34 LAWTALK 927 · April 2019 PEOPLE IN THE LAW · PROFILE
PEOPLE IN THE LAW PROFILE
The Government’s lawman David Parker, Attorney-General
BY CRAIG STEPHEN
As Attorney-General in Helen Clark’s third essential to enforcing environmental bottom lines. and final government, David Parker was Because without it there is always some ratbag who’s willing to push things harder than someone else. Without the logical choice to take on the role in environmental laws they can out-compete someone the Coalition government that was formed on the basis of causing environmental damage that in October 2017. someone else is not willing to cause. “In addition, I have the view that the political space This time round, the former Dunedin lawyer and to change things and to maintain community respect co-founder of the Community Law Centre has several for the rule of law and to have respect for the rule of meaty roles in the government: Minister of Economic law society must uphold human rights and civil liber- Development, Minister for the Environment, and Minister ties. If you respect the rights of minorities, if you keep for Trade and Export Growth, as well as Associate government and its institutions on the right side of the Minister of Finance. law, and you maintain respect for legal institutions and As Attorney-General, he is the principal legal adviser the rule of law, then you have societal confidence in the to the Government and a member of the Cabinet. many institutions that deliver all of those other things Mr Parker’s predecessor, Christopher Finlayson QC, you need to have a happy, effective and peaceful society.” was, for the bulk of his nine years in the role, also ‘only’ the Minister for Treaty Negotiations – a role that is now So having a legal background is helpful, if not fulfilled by Justice Minister Andrew Little. essential, to all the portfolios that you are holding? I began the interview by asking Mr Parker how his “There’s no area of law that I studied at university that I ministerial roles relate to his role as Attorney-General. haven’t put into place in practice, whether it’s family law, land law, equity, jurisprudence; and understanding the “Outside of the law I’ve got three drivers of my political rule against perpetuity is a great thing for any politician ethic; one is a strong economy, the second is to ensure to know. So I believe I have a decent understanding of the fruits of a strong economy are more fairly shared to the importance of law to all of those things.” get egalitarian outcomes, and the third one is to achieve Your predecessor was the Minister of Treaty of that within environmental limits. I know that to achieve Negotiations and Attorney-General and for a spell any of these the rule of law is fundamental. Without the oversaw the spy organisations, so his role was far rule of law protecting property rights and contractual more limited than yours. Do you think you might be rights you don’t get investment to grow the economy. perhaps over-stretching yourself a bit? Without the rule of law and political input to change laws relating to taxation, training people, immigration rules, “No, no, those roles can be done by different people, etc, you don’t get the right balance between capital and and often have been. Michael Cullen was Minister of labour and you don’t get fairness between generations. Treaty Negotiations and Minister of Finance. Although So the law is absolutely essential to that also. he was, for a while, Attorney-General those roles did “There is equally no doubt that the rule of law is not coincide all the time. When I was Attorney-General
35 PROFILE · PEOPLE IN THE LAW April 2019 · LAWTALK 927
for a brief period in the previous Labour government I wasn’t Minister for in society and they come from Treaty Negotiations. So there’s no reason at all they need to be held by the diverse backgrounds and it would same person at the same time.” be good if our benches were more diverse.” With the review of so many different areas of justice, you presumably will have some input into that. Access to justice is a major issue. Does New Zealand “One of the things that both Andrew Little and I agree on is that the Family provide that for all its citizens? Courts are in a parlous state. There were changes made to the operation of the Family Court that have resulted in a lot of injustice. The system is “The courts are meant to serve the clogged with too many exparte orders followed by lengthy delays where interests of the people; if people parties who have been subject to an ex parte order are not able to get before cannot use them to resolve their a judge to have their issues tried in a substantive way.” disputes in an affordable and civil manner then they’re not meeting In terms of your role as Attorney-General what’s your thoughts their social purpose and I do have a on the system of appointing QCs? Do you think that needs to concern that the courts, particularly be reformed, such as appointing non-barristers as QCs? the civil courts, are increasingly a “No. People should be practising at the bar to be appointed a QC. I don’t place than can’t be accessed by necessarily have a strong view that there should be a separate Bar, although I ordinary people. With other people do know that people do. But in terms of the method of appointing QCs within I was one of the founders of the the existing limits to who can be appointed a QC, I think the system is okay.” Dunedin Community Law Centre and the CLCs are one way of pro- Any thoughts about going back to the previous Labour viding legal assistance to people. government change of having Senior Counsel? We (the Coalition) gave a substantial “I was happy enough for that change to be made. increase in funding (22%) in the last I’ve personally never accepted the idea that there is Budget for community law centres. somehow a higher ethical standard of people who But that is not the only way. The are at the separate Bar compared with the people profession and the judiciary and all who are within legal firms. If there were, well, of those who have an interest have they shouldn’t be able to appear in court. I don’t always got to fight for processes accept they’ve got some inferiority about them as that are not too complex relative to a consequence of their different standing or pressures the amount that is at issue so as to within legal firms compared with at the separate Bar. achieve affordable access to justice. And I’m also conscious that one of the reasons why Legal aid is part of the answer but those rules were abandoned when the New Zealand it’s not the only answer; efficiency legal system was set up compared with the UK system of process is important.” was that it was pretty expensive having compulsory Do you think the Bill of Rights separation, having to have a solicitor and a barrister. should be strengthened? It’s not a high priority.” “I don’t believe the Bill of Rights Do you envisage any changes to should be extended to social rights the role of Attorney-General? or environmental issues for two “No, it’s well settled and works well. A lot of the roles of The courts are reasons: one, the distribution of the Attorney-General are just to be there as a guardian meant to serve resources within society is a highly of our conventions. I see one of my most important the interests political question that is best taken roles as to make sure the conventions, the separation of the people by politicians. Second, politicians of powers, the protection of judges from criticism from, [...] and I do are elected every three years and especially the Executive, but more generally Parliament, have a concern can be thrown out every three is maintained. They can’t defend themselves.” that the courts, years, and if decisions are made particularly the on those issues that are wrong, Do you foresee any changes to civil courts, are and don’t have sufficient backing the appointment of judges? increasingly a within society. This is a check and “There is a pre-condition to the appointment of anyone place than can’t balance. Politicians are much better to a senior position, including as a judge, that they be accessed by placed to make those complex trade are competent. There are lots of competent people ordinary people. off decisions than the courts.”▪
36 LAWTALK 927 · April 2019 PEOPLE IN THE LAW · PROFILE
PEOPLE IN THE LAW PROFILE Auckland barrister, homeless advocate and a judge champion new night shelter for homeless
BY NICK BUTCHER
I know of An Auckland barrister, a homeless advocate and a a pregnant District Court Judge are driving the development of a new woman night shelter for homeless people, due to open before the sleeping rough winter. and another Queen Street in the central city is often dotted with woman with people begging and sleeping rough all year round. Many two children of them have mental health and addiction problems. who was Barrister Jo Wickliffe is used to defending people who sleeping near cannot do it for themselves, including homeless people, the Auckland ▴ Jo Wickliffe and the night shelter initiative is another strand of her District Court. advocacy work. She had her A trust called NEST (Night Emergency Shelter Trust) has children on been formed and a Board of Trustees established which mattresses includes Judge Grant Fraser and Michelle Kidd who are with a duvet. both advocates for the homeless. While the Queen Street homeless are the visual part of the problem, Ms Wickliffe says there are many others who are living and sleeping in areas that many people would be less aware of. “Often you won’t see the long-term homeless people. They’re not on Queen Street. They’re hidden in places where they can’t be easily found. Some are sleeping in bushes at Albert Park. I know of a man who sleeps in rubbish skips. I know of a pregnant woman sleeping rough ▴ Judge Grant Fraser and another woman with two children who was sleeping near the Auckland District Court. She had her children on mattresses with a duvet. It’s a terrible situation for anyone to be in,” she says. Marae-style accommodation The Trust has secured a three-storey building for the Night Shelter on Nelson Street in the central business district, and they have a project manager who’ll deal with resource consent issues and the fit-out of the premises. The first floor will be for men and can sleep 80 people in a marae-style open plan. The second floor will be for women and will cater for 40 people, also marae style. And there’ll be security guards on duty each evening. “The security is to ensure the safety of all who are ▴ Michelle Kidd
37 PROFILE · PEOPLE IN THE LAW April 2019 · LAWTALK 927
sleeping at the shelter. They’re not safe on the street and “If we can Judge Fraser’s involvement will be ongo- need to feel safe at the shelter. There will also be a building get people ing. “I’m here for as long as I’m needed. manager who lives on-site,” she says. off the streets I’ve been a judge for over 20 years. I had 12 Ms Wickliffe says homeless people who want to stay and into safe years in the Family Court, so I’ve seen how at NEST will have to hand over any drugs, alcohol or accommodation, desperate the need is for a facility like this.” weapons such as knives that might be in their possession. then we are “They won’t get these items back. Along with their bags, achieving our ‘Homeless people are not each person will be searched to ensure they are not a threat objective. the problem, they’re the to the safety of other people at the shelter.” They’re free result of the problem’ The night shelter doors will open at 8pm and people will from molestation It’s a sobering statement but Michelle be expected to leave the building by 8am the following day. by city thugs.” Kidd, who was awarded a Queen’s Service Ms Wickliffe says the shelter will complement the Medal for her tireless work for the homeless, Auckland City Mission redevelopment. stands by it. She has had a 20-year selfless “This facility is not being built to compete with it. It’s career standing up for the homeless. She going to be there to support it. They’re not going to build knows them, and they know her. a night shelter in their new facility. That’s not a criticism She is one of the trustees with the NEST as they’re doing other great things for homeless people project. Rising daily at 4:30am to cook por- including providing food,” she says. ridge for the homeless of South Auckland While the night shelter is on target to open before winter, and then go on to act as a support person at the Trust will appeal for corporate funding, Givealittle the Auckland and Manukau District Courts crowd funding, along with applying for Auckland City for homeless people is all part of a normal Council and Government support. day for Ms Kidd. It’s estimated that running the NEST will have an annual As she explains, homeless people are cost of between $800,000 and $1 million. vulnerable to so much more than just cold Ms Wickliffe is also encouraging other lawyers to get winter nights. involved in the Trust on a pro-bono basis. “Both women and men are exposed to “We need an employment specialist because we’ll be all forms of possible abuse. This includes hiring a general manager. We also need a lawyer with being physically attacked, including women expertise in public liability and contract law. We need and men being raped. This can happen on them now,” she says. the streets of Auckland. I’ve been trying to Already they have secured Ian McCombe, a partner of get a decent night shelter in Auckland for Brookfields who specialises in lease and trust law, Edwin the past 20 years. This will be an excellent Sheppard, a solicitor at Berry Simons Environmental Law facility, not a dog box. People will be safe who specialises in resource management law, and Anton and respected,” she says. Trixl, a partner at Anderson Lloyd who specialises in There have been night shelters in employment and contract law, along with another lawyer Auckland in the past but they haven’t who is a specialist in public liability law. proved sustainable. The trustee judge Long-term plan: open Some people might not expect a judge to be involved in more shelters a project that benefits the homeless. The long-term plan, Michelle Kidd says, is But Judge Grant Fraser leads the Family Violence Court to open more night shelters in other areas in Auckland and Manukau. He regularly sees homeless of Auckland, as homelessness is not just a people in his courtroom, so he has personal insight into central business district problem. their lifestyle and living conditions. “People are quite generous in Auckland, but “We spend a lot of time outside of that court reaching as one homeless person said to me, ‘they’re out to the community. Part of that responsibility for me (the homeless) like pigeons, in that people want was to take on the job of being a trustee for this cause. to feed us but not take us home’,” she says. “Being subjected to violence is, sadly, something that Ms Kidd says the night shelter will regularly happens to homeless people. But if you consider provide basics for people that most of us the stressful situation that homeless people are operating take for granted. under and the needs that they have, which are often unmet, “People will be able to go to the night it’s hardly surprising,” he says. shelter, lay their head down and feel safe. Judge Fraser says getting people off the streets into accom- Can you imagine what it is like not show- modation, even if it is only temporary, limits the night time ering for months on end?” ▪ opportunities for violent offending against them. “If we can get people off the streets and into safe accom- Lawyers keen to contribute some time modation, then we are achieving our objective. They’re to the project can contact Jo Wickliffe free from molestation by city thugs.” at [email protected]
38 LAWTALK 927 · April 2019 PEOPLE IN THE LAW · PROFILE
PEOPLE IN THE LAW PROFILE The Innovators Erin Ebborn
LawFest organiser Andrew King continues a series of interviews with key legal profes- sionals with their innovation and technology Legal innovation has enabled me to expand into other stories. parts of the country fairly quickly. For example, hiring lawyers to work in Blenheim has been challenging, so What does legal innovation mean to you? we don’t yet operate a branch in Blenheim. Our lawyers Legal innovation, to me, is the means of progression a from Christchurch and Timaru service the area, which law firm (or lawyer) uses to improve their service offering accounts for around 20% of our caseload. and profitability. We’ve grown our business at a good clip and we have done this almost exclusively on legal aid. Surely, this is What role does technology play in innovation? evidence that innovation has a direct relationship with Technology is an essential part of innovation: that is efficiency! We are taking all the profit we realise and sink where efficiency is realised. For almost its entire history, it back into the business to continue this growth. For those humankind has used one tool or another to increase the who don’t know, legal aid fees are between 30% to 50% output of the individual person. Technology is a multiplier of what we charge privately. So we also have the choice of effort, meaning that one person is able to produce several of charging what other law firms charge, and returning times more output than normal. For example, a person hyper profit, or offer competitive pricing strategies to take harvesting 100 trees with logging machinery will be more market share from other firms. efficient than if the person used a chainsaw, though a What are some of your tips to start innovating chainsaw is more efficient than using an axe. or developing an innovative mindset? What pressures are organisations facing Read some books. I recommend The Goal by Eliyahu in the delivery of legal services? M. Goldratt; Our Iceberg is Melting by John Kotter, and; The pressures facing organisations in the delivery of Competitive Strategy: Techniques for Analyzing Industries and legal services are mainly external: a tight labour market; Competitors by Michael E. Porter. If you don’t have your changing social values, greater competition and substi- head firmly in the strategic space, you won’t be able to tutes; consumer sensitivity to price; greater expectations effectively choose your technology path. as to speed. Internally there is the pressure of partners Hire someone who knows the law profession and technology. wanting to exit firms, so finding the cash to pay them out. Don’t try to feel your way around … it’s too important a In a regulation sense, the restrictions around third-party decision to just go with who has the shiniest brochures, or investment and diversification of governance boards. Some what vendors tell you that you need. You need to project of the change is well overdue (eg, #metoonz). future need rather than focus on instant solutions.
What developments do you see in how Why is it important for legal professionals legal services are delivered? to continue to learn about legal innovation and leveraging technology? More video-enabled services allowing lawyers to beam in to remote areas, or work away from the law firm’s loca- The biggest challenge firms face around innovation is tion. A revamp of what practice management software about the gaps that exist between the profession and does with more focus on CRM, document management other sectors of business; so the critical task to consider functionality and a move away from hourly billing. Some is need identification. Because law firms have weakened use of enhanced machine learning services provided from governance structures (due to any non-lawyer being stat- offshore – this is now possible due to the settlement of utorily banned from partnership or directorship status) the Microsoft v US Government case (with the CLOUD Act there is a tendency to have a low risk horizon, resulting passed into law last year). in a lack of strategic insight. ▪
What opportunities has legal Erin Ebborn has been a speaker at the legal innovation innovation brought to you? and technology event LawFest.
39 ACCESSIBILITY LAW · UPDATE April 2019 · LAWTALK 927
leadership of the disability community has UPDATE said ‘if you’re rebuilding, get it right’. That ACCESSIBILITY LAW doesn’t always happen so that’s where a strong disability access law can be used to ensure that is done correctly.” Can-ada we do? The need for new legislation He says it’s hugely important that New Zealand has an Accesibility Act. Yes, says campaigner “Firstly, one in four New Zealanders have an impairment, whether a physical as NZ prepares way for or mental disability, and everyone else will have an impairment at some point in their disability legislation lives, so these accessibility issues will affect most New Zealanders. “Secondly, better accessibilty is great BY CRAIG for business. This is a beautiful country STEPHEN that thrives on a vibrant tourism industry. Well, there’s upward of a billion people with disabilities around the world and they A highly-regarded blind Canadian lawyer says New want to visit places that are accessible. Zealand needs a new disability access law to tackle the “I stayed in four different hotels in four lack of access for the estimated one million people with different parts of New Zealand, and not one a disability. of them had the simplest requirement of David Lepofsky was invited by the Blind Foundation to braille numbers on the hotel room doors visit New Zealand to share his experiences and expertise on or the elevator buttons. That’s pretty basic developing accessibility legislation and standards in Canada. stuff. Now, who would stay in a hotel if The Blind Foundation is one of 12 disability groups that they can’t operate the elevator or find their form the Access Alliance lobbying Paraliament to enact own hotel room? an Accessibility Act which would provide accessibility “Some people think that when you talk in all areas of life and champion accessible workplaces, about accessibility that it’s really expensive employment and education. to carry out upgrades but it’s actually not Mr Lepofsky was awarded the Order of Ontario in 2007 that costly, and it’s definitely worth it. for his work with people with disabilities which led to the Otherwise you lose out on tourist business. establishment of the Ontarians with Disabilities Act 2001 “And the final thing is New Zealand and the Accessibility for Ontarians with Disabilities Act 2005. needs more professionals to do accessibility During his time in New Zealand at the end of last year, Mr infrastructure – designers, urban planners, Lepofsky spoke to a number of politicians and advocates software designers, website designers including the Minister for Disability Issues, and so on. There’s a huge value in the Carmel Sepuloni, assistant Speaker of the government funding the training of new House (and former disability worker) Poto professionals in planning, built environment Williams, councillors, disability advocates design and digital design in accessibility. and city planners. Not only would they serve the New Zealand And he picked up a feeling that things “Firstly, one market but they can then sell their services are changing, and quickly. in four New internationally; if a company or organisation “What I’ve sensed is a similar excitment Zealanders have anywhere in the world wants someone to to the campaign and optimism in Canada. an impairment, design their website to meet the growing There’s a government in power that made whether a international standards then there’s people accessibility commitments during the 2017 physical or here who can design it for them. They don’t election, and there’s a sense of opportunity. mental disability, need to travel to that country to do it, they “In most communities it isn’t just about and everyone can do it online.” the built environment, it’s also about the else will have During his time in the country, Mr Lepofsy digital environment where we can face an impairment noted several areas where we fail disabled barriers, in the workplace and all sorts of at some point people in comparison to other jurisdictions. places. But obviously the built environment is in their lives, “The United States is way ahead of most a crucial place. So, when disabled people visit so these countries, both in terms of the strength of somewhere the structures are already there. accessibility its legislation and its enforcement. There’s “Christchurch is in a unique situation, issues will affect some strong things in Israel’s legislation – I because of the terrible earthquakes in most New was there recently and stayed in a couple of 2011. They’re rebuilding massively and the Zealanders.” hotels and both had braille in the elevators,
40 LAWTALK 927 · April 2019
and they’ve got a voice to tell you which floor you are on. “New Zealand is in a position to catch up those countries by looking at who’s doing it right, and learn from it all. One thing New Zealand is doing right is it has more of those beeping pedestrian signals than in Canada. They’re not everywhere but they’re on a lot of streets and street corners.” Overcoming the odds Mr Lepofsky was partially sighted until the age of 20 when he lost all his sight. However, he qualified as a lawyer and for 33 years was Crown counsel for the Government of Ontario. He retired in 2015 and has since become a part-time law professor at the University of Toronto and the Osgoode Hall Law School. He is the co-chair of Barrier-Free Canada, a community coalition that has advocated for the Canadians with Disabilities Act. He was awarded the order of Canada in 1995 and the Order of Ontario in 2007. Mr Lepofsky says it is not unusual for a sight-impaired lawyer to be succesful and there shouldn’t be any barriers to someone becoming admitted and being able to practise. “There are a lot of blind lawyers around the world; in the United States there are two separate organisations for blind lawyers. The route to gaining experience and skills have become incredibly easier. When I was in law school, which was 40 years ago, I used to have to get books recorded on to audio cassette and have human beings read stuff to me. We used typewriters but I couldn’t proofread what I was writing. “Forty years on we have computers and iPhones that talk, and we have document scanners. If I was given a document in the courtroom I can take a picture of it on my phone and 30 seconds later the phone is reading it to me. And, of course, we have access online to electronic text and legislation. “The capacity to operate in an environment of law where it’s all about documents and written materials is now immensely easier. I’ve seen this transformed in my lifetime.” ▴ David Lepofsky was awarded the Order of Ontario in 2007 Coalition support for his work with people with disabilities which lead to the Dianne Rogers, the coordinator of the Access Alliance, says establishment of the Ontarians with Disabilities Act 2001 and there will be changes as the Government is committed the Accessibility for Ontarians with Disabilities Act 2005 to making them. “The Minister (Carmel Sepuloni) has raised this at “The Human Rights Act is weak in terms of achieving Cabinet level; all three parties in the coalition government systemic change based on complaints. Its disputes res- are committed to doing something. We were successful olution mandate deals with claims individually through last year during the pre-election period to getting this idea mediation and outcomes are usually confidential. This new in the party manifestos.” legislation that the 12 member organisations in the Access She says 1.1 million people – about a quarter of the New Alliance – and their supporters – are proposing will be a Zealand population – have impairments, a number that game-changer.” will significantly rise over the next few decades with an In December, a first step was taken to improving ageing population. And New Zealand needs to wake up accessibility when Cabinet approved a work programme to the fact it is way behind other OECD nations in how it to explore how full accessibility for disabled people can provides access for disabled people. be achieved. “We are 30 years behind the rest of the world. We have The work programme will also focus on improving had really poor regulations and it’s been left to the goodwill accessibility for other groups such as seniors, carers of of organisations to do something for disabled people, ie, young children, people with English as a second language, removing barriers, transport improvements, easy to access and those with temporary injuries. ▪ websites and so on.” She says the proposed legislation will “scale up and fill For more information on the campaign for an Accessibilty the gaps” in existing statutes on disabilities. Act visit accessalliance.org.nz
41 COMMERCIAL LAW · UPDATE
UPDATE COMMERCIAL LAW The Viagogo case The difficulties of seeking interim injunctive relief against an overseas defendant
BY JOHN LAND The Commission also alleged that Viagogo How do you enforce New Zealand consumer law against the made misleading operator of an international website? The Commerce Commission claims representations ticket buyers are being seriously misled by Swiss-based Viagogo. However, that Viagogo could it has failed in its attempt to obtain an interim injunction because Viagogo guarantee the validity has refused to accept formal service except in Switzerland. of tickets (when that Despite the lack of formal service, Viagogo’s lawyer appeared in court was not the case) and to argue the injunction application. Viagogo argued that the court had about other matters no jurisdiction because of the lack of service. Courtney J, in a judgment including the pricing dated 18 February 2019, agreed: Commerce Commission v Viagogo AG [2019] of tickets NZHC 187. Meanwhile, on 5 March 2019 the Competition and Markets Authority in the UK announced it would be seeking contempt of court orders against Viagogo for failure to comply with previous court orders made against it. On 4 March 2019 the Government released a discussion paper “Ticket The Commission’s proceeding reselling in New Zealand” on which it has sought submissions by 18 April. against Viagogo The government proposals include setting a cap on ticket resale prices (to The Commerce Commission originally prevent scalping), the imposition of information disclosure requirements issued proceedings against Viagogo in in relation to the resale of tickets (such as disclosing the face value price of November 2018 alleging that Viagogo was tickets being resold), and a prohibition on the use of automated software misleading customers on its website in a (bots) used by scalpers to purchase large numbers of tickets for resale. number of respects. Given the huge number of complaints The Commission alleged that Viagogo made to the Commission about ticket made a number of representations that resellers (particularly Viagogo) there is tickets for particular sporting, music and a real question about whether there is Viagogo entertainment events were in short supply, consumer harm that needs addressing represented when they were not. For example it alleged in further regulation. that there that Viagogo represented that there was The big issue though, in my view, is just was “only 1 “only 1 ticket left” to a performance of Peter how you enforce such regulations when ticket left” to Pan and that tickets were “likely to sell the resellers of tickets and ticket reselling a performance out soon” when in fact, at the time, there websites, like Viagogo, are based overseas. of Peter Pan were at least 473 tickets available to the What the MBIE review really needs to con- and that relevant performance. The Commission sider is what enforcement mechanisms and tickets were said that Viagogo did not make it clear law changes are required to ensure that “likely to sell that its representations relating to avail- overseas traders cannot just thumb their out soon” ability of tickets were intended to relate to noses at New Zealand laws and regulators. when in availability on the Viagogo website only as In my view what should be considered fact, at the opposed to general availability of tickets. is to provide the Commerce Commission time, there The Commission also alleged that Viagogo with rigorous stop order powers anal- were at least made misleading representations that ogous to those held by the Financial 473 tickets Viagogo could guarantee the validity of Markets Authority. available tickets (when that was not the case) and
42 UPDATE · COMMERCIAL LAW
jurisdiction to determine the injunction application. Courtney J accepted this argument. She held that the court had no jurisdiction until Viagogo had been formally served. Approach to injunction applications where there is a protest to jurisdiction Where a protest to jurisdiction is made, the Court of Appeal has held that the protest should be determined before determining any interlocutory applications (Advanced Cardivascular Systems v Universal Specialties [1997] 1 NZLR 186 at 189). That approach has also been followed where the interlocutory application in question is an application for interim injunction (Rimini Ltd v Manning Management and Marketing Pty Ltd [2003] 3 NZLR 22 at [39] per Randerson J). As Randerson J said in Rimini, if the court was to entertain an interlocutory application, it would necessarily be accepting jurisdiction to hear and determine the proceeding. In some cases a court has been willing to hear a protest to jurisdiction and appli- cation for interim injunction together (for about other matters including the pricing of tickets (as the initial web example, this effectively occurred inYPG pages that customers accessed did not quantify fees that were added to IP Ltd v Yellowbook.com.au Pty Ltd (2008) the price of the tickets). 8 NZBLC 102,063). Viagogo did not cooperate with the Commission in accepting service. It did instruct solicitors in New Zealand but those solicitors declined to Approach to injunction accept formal service of the proceedings. As a consequence the Commission applications where an was forced to seek to effect service in Switzerland through diplomatic overseas defendant has channels. The Commission advised the court that such service was likely not been served to take about six months. What then is the situation if the proposed Given the expected delays in service, the Commission decided that it defendant has not yet filed a protest to should seek interim injunctive relief. It contended that if interim relief was jurisdiction because it has not been for- not granted there was a significant risk that Viagogo would continue to mally served, but says that it intends to breach the Fair Trading Act by making representations of the same kind. file such a protest? Given the lack of formal service, the application for interim injunction Courtney J suggests that, in that situa- was made on an ex parte basis. However, Viagogo’s solicitors were provided tion, the court has no jurisdiction to deter- with copies of the proceedings and the injunction application. mine an interlocutory application. A party is only brought within the jurisdiction of Viagogo argues no jurisdiction on the New Zealand courts by being served the basis of no formal service (Courtney J at [12] and [13]). Despite the lack of formal service, Viagogo’s solicitors appeared at the Courtney J referred to the earlier deci- interim injunction hearing on a “Pickwick” basis (ie, the application sion of Kós J in Discovery Geo Corporation was technically still an ex parte application). They also appeared on v STP Energy Pte Ltd (2012) 21 PRNZ 381. the basis that their presence should not be taken to be an acceptance In that case, as in the Viagogo case, the of jurisdiction by Viagogo. respondent to an application for interim Viagogo’s solicitors advised that the company intended, once formally orders had not been formally served but served, to file an objection to jurisdiction. appeared on a Pickwick basis and indicated They then argued that in these circumstances the court had no that jurisdiction would be protested.
43 Kós J said (at [39]) “First, jurisdiction at heart is depend- assume jurisdiction (under rule 6.29) will be “whether the Court is satisfied ent on valid service on the defendant .… Of course, Mr that there are sufficient grounds for it properly to assume jurisdiction” Kalderimis has received copies of the application and was (Kuwait Asia Bank v National Mutual [1989] 2 NZLR 50 (CA) at 54. able to file a comprehensive response, albeit under protest. The Commission would need to establish a good arguable case that the But that is not service in terms of the Rules. Where service proceeding can be served without leave under one of the paragraphs of offshore is involved, some rectitude is required. It involves, rule 6.27, that there is a serious issue to be tried on the merits and that as has often been said, an exercise of sovereignty within New Zealand is the appropriate forum for the trial. the country in which service is effected.” Here it would seem that the Commission could serve without leave Kós J held in Discovery Geo that the intended protest to under rule 6.27(2)(d)(ii), and/ or rule 6.27(2)(j). jurisdiction should be heard before any application for The extensive affidavit evidence filed by the Commission in support interim relief was heard or granted. of the injunction application would likely satisfy the requirement that Courtney J accepted the argument of Viagogo that rule there is a serious issue to be tried on the merits. 5.49 of the High Court rules only contemplates the filing of a protest to jurisdiction after a defendant has been Representations made in NZ served. On that basis, until a defendant is served it is not The international aspect to the representations would not prevent a finding possible for a defendant’s proposed protest to jurisdiction of a serious issue on the merits. Viagogo’s representations were largely to be considered. made on a website outside New Zealand. However, the representations were addressed to consumers in New Zealand. In those circumstances, The likely outcome of a the representations can be said to be made in New Zealand (ACCC v Valve protest to jurisdiction Corporation (No 3) [2016] FCA 196). One can understand the frustration of the Commerce Further, in any event, s 3 of the Fair Trading Act makes it clear that the Commission. Act applies to overseas conduct if the defendant is carrying out business Do we really have to wait and see whether a court will in New Zealand and the conduct relates to the supply of goods or services accept the protest to jurisdiction? Surely this is a case in New Zealand. Viagogo, by offering its service to New Zealanders, would where the court is likely to uphold the jurisdiction of the seem to be carrying out business in New Zealand and the relevant conduct New Zealand courts? relates to the supply of goods or services (the supply of tickets or the The claim is one by the New Zealand consumer law rights to tickets) in New Zealand. regulator to enforce the New Zealand Fair Trading Act, Finally, New Zealand must surely be the appropriate forum for a trial of against a company whose website is advertising the sale an action. Indeed in YPG IP Ltd v Yellowbook.com.au Pty Ltd (2008) 8 NZBLC of tickets to performances and events in New Zealand, 102,063, at [25]-[27] Allan J, in rejecting a challenge to jurisdiction made by and whose representations are directed to and relied on Australian respondents to an application for an interim injunction under by New Zealand consumers. the Fair Trading Act, commented (at [25]) “… the Fair Trading Act is New In the case of a protest to jurisdiction filed under rule Zealand legislation, which targets activities within New Zealand. Foreign 5.49 the ultimate issue for a court in deciding whether to parties which trade in New Zealand, or carry on a business which affects
44 LAWTALK 927 · April 2019 UPDATE · COMMERCIAL LAW
Conclusion New Zealand businesses, become subject to the provisions of the Fair Trading The difficulty in the Commission being Act 1986. Australian Courts have no jurisdiction to deal with claims brought able to obtain an injunction order against under that statute” and (at [27]) “I was satisfied that this Court, and only Viagogo demonstrates a gap in the law. The this Court, has jurisdiction to deal with the plaintiffs’ claims, and that the experience of the UK regulator in having defendants’ challenge to the jurisdiction of this Court must be dismissed”. Viagogo not comply with court orders is Accordingly, the Commission’s case to establish jurisdiction appears strong. also concerning. The current MBIE discussion paper on The judge says it’s all about service, not jurisdiction ticket reselling misses the real issue. That However, Courtney J noted that just because the conduct was amenable is the ability of a New Zealand regulator to to the jurisdiction of the court, that did not, of itself, bring a defendant effectively enforce New Zealand consumer within the jurisdiction of the court. law against overseas web-based services. In the judge’s view the essential problem for the Commission was not In my view, the Commerce Commission whether an objection to jurisdiction had been filed or merely intimated, needs the ability to issue stop orders in but the fact that Viagogo had not been served (Courtney J at [13]). relation to practices which seriously breach But is that right? Ex parte injunctions are commonly granted without consumer laws, including stop orders to it being suggested that there is no jurisdiction to do so. In fact, they are cease conducting business in New Zealand specifically provided for in rule 7.4.6 of the High Court Rules. Freezing while offending practises continue. The orders (Mareva injunctions) have often been granted against overseas Financial Markets Authority (FMA) has defendants without notice. similar powers under ss 462 and 463 of If there is a problem with the granting of an interim injunction in the the Financial Markets Conduct Act 2013 case, then I would suggest the problem can only arise for the reason (see Land “FMA makes first stop order”, suggested by Kós J in Discovery Geo, ie, because there is an intimated LawTalk 871, 14 August 2015, 26-27). protest to jurisdiction which should be heard before any interlocutory The FMA’s powers extend to situations application. The lack of service by itself should not be fatal. where a product disclosure statement is misleading and allows the FMA to prohibit Substituted service in relation to overseas defendants offers and sales of financial products while Courtney J did say that there might be circumstances in which genuine the order is in force. The timeframes for urgency prevented formal service being effected before an application the exercise of such powers are short (five was dealt with. In those circumstances, she suggested a plaintiff should working days under s 475 though even this apply for substituted service. time period can be shortened under s 476) Rule 6.8 of the High Court Rules allows for substituted service where and the procedure is simple. The process is reasonable efforts have been made to serve proceedings by a method certainly not unwieldy and impractical like permitted under the rules and “either the document has come to the the Commission’s own former cease and knowledge of the person to be served or it cannot be promptly served”. desist powers under s 74A of the Commerce The Court of Appeal has confirmed that the court can order substituted Act 1986 (now repealed by the Commerce service in respect of an overseas defendant Amendment Act 2018). – Exportrade Corp v Irie Blue New Zealand The Commerce Commission should have Ltd [2013] NZCA 675 at [13]. The English similar stop order powers. The law could Court of Appeal made similar comments also provide for other means of effective in Cecil v Bayat [2011] 1 WLR 3086 at [68] notice of such stop orders other than just where Stanley Burnton LJ suggested that personal service. Under the FMC Act all substituted service on an overseas defend- [...] the that is required is “written notice” both ant might be justified by facts specific to Commerce of intention to make a stop order, and of the defendant including “where an urgent Commission the order itself – ss 475 and 477. application on notice for injunctive relief needs the Further, the law could require cooper- is required to be made after the issue of ability to issue ation in the enforcement of a stop order proceedings”. stop orders by internet service providers and other However, it is not clear that substituted in relation parties who are given notice of the order. service is an answer in relation to Viagogo. to practices Safeguards would, of course, be necessary Substituted service would likely under rule which in terms of the ability for parties subject 6.8(2) be treated as having been effected in seriously to such orders to be able to apply to court Switzerland. The High Court rules provide breach for discharge or variation of the orders. ▪ that service will be invalid if effected con- consumer trary to the law of the place where service laws, including John Land is a Senior Competition Law is effected (rule 6.32(4) and see alsoAbela stop orders Specialist and Commercial Litigator at v Baadrani [2013] 1 WLR 2043 (UK Supreme to cease Bankside Chambers in Auckland. Formerly Court) at [24]). It is apparently contrary to conducting a partner of Kensington Swan for 20 years, the Swiss Criminal Code to serve documents business in he can be contacted on 09 379 1513 or at other than through consular channels. New Zealand [email protected]
45 UPDATE DIGITAL COMMUNICATIONS Harmful digital communications
BY TARYN GUDMANZ
Process Outline The Harmful Digital Communications Act 2015 The first port of call is a complaint to Netsafe (the only (HDCA) was intended, among other things, to protect approved agency under the HDCA) via an e-form (www. minors from the harm arising from cyberbullying. netsafe.org.nz/report). Netsafe then evaluates the report However, gaps in the process may expose minors to fur- and contacts the complainant with his/her options, ther harm in the course of dealing with a complaint. This and tries to resolve the issue. Netsafe cannot impose article is primarily concerned with the situation where a penalty. both the complainant and the defendant are minors, and If the complainant is not happy with the outcome there has been inappropriate online behaviour from both from Netsafe, s/he can apply to the District Court for parties. This is not an uncommon situation. orders via an e-form on the Ministry of Justice’s website, There has been very little civil litigation involving the under the tabs Justice Sector and Policy / Key Initiatives HDCA, and even less involving minors. The focus when / Harmful Digital Communications. There is no filing fee. the bill passed through Parliament was on the criminal The court attends to service of the documents, including side. Where civil litigation and minors was considered, a notice of proceedings with a hearing date. the focus was on a minor who was the victim. These The application may be made on notice or without notice factors have combined to create uncertainties. – ticking a box is all that is required. Where the application is on notice and the alleged perpetrator wishes to defend Practicalities under the HDCA the matter, s/he must complete a notice of opposition. The system is intended to be speedy and user-friendly. This must be filed no later than three working days before It also appears that it is intended to be able to be used the hearing date. The parties then attend the hearing and easily without legal advice. make submissions.
46 LAWTALK 927 · April 2019 UPDATE · DIGITAL COMMUNICATIONS
Where orders are made without notice, the defendant understand the judgment. Of note is that while defendants is entitled to be heard on the interim orders made, and have a direct interest in the outcome, they did not choose needs to complete a form requesting to be heard. to commence the proceedings. Additionally, either party may apply for variation or discharge of the interim orders. Law reform It would seem prudent if the defendant is opposing Both the Law Commission and Parliament were concerned interim orders to also file a general notice of opposition, to ensure that young people were not criminalised under as the interim orders may not cover all the orders sought. the HDCA. But the focus on the criminal law appears to Although the process is intended to be speedy, it is have allowed the less desirable consequences of civil law recommended that you check with the court whether to slip through unnoticed. the hearing date is a call or a substantive hearing date. Service Minor Complications One undesirable consequence relates to service of documents. Litigation Guardians Minor defendants have no right to be represented by a parent/ The HDCA is drafted in a way that takes into account guardian until a litigation guardian is appointed. This occurs the minor status of the complainant only. It allows for a only after proceedings are served. As a consequence, children parent or guardian or professional leader of a registered are being served with proceedings by court bailiffs. The author school (with the affected person’s permission in the latter is aware of a case where a 13-year-old was served. case) to bring an application on the affected person’s There is no suggestion that the bailiffs did not, and will behalf. There is, however, no provision for a parent or not, act properly and sensitively. Yet, how terrifying and guardian to respond on the defendant’s behalf if the bewildering for parents to have an officer of the court defendant is a minor. arrive on their doorstep and require them to find their A minor must be represented by a litigation guardian child so that court proceedings can be served on them. in court proceedings pursuant to Rule 4.31 of the District And what of the effect on the child? Court Rules. A parent or guardian must therefore make an I see two options to deal with this: service on the parent/ application to be appointed as litigation guardian under caregiver, or service via Oranga Tamariki. Rule 4.35. This carries a filing fee of $250. Accordingly it Option one could create difficulties in establishing who is free for an applicant to make a complaint, but not for the parent or guardian is, and create scope for argument a minor respondent to defend him/herself. about effective service. Swift action is important in HDCA proceedings. Service could be on an adult with whom the Name Suppression child resides, with that person then deemed responsible for There is provision under section 19(4)(c) of the HDCA for responding to the application. They could discharge that obli- name suppression for any person. It is recommended gation by providing the document to the parent/guardian that when any party is a minor, name suppression be within a specified short timeframe. This would also remove sought. If the matter was being dealt with under the the need to make a separate application for appointment of criminal provisions of the HDCA, it would be dealt a litigation guardian (and payment of the filing fee). with in the Youth Court and name suppression would Option two may well carry with be automatic (in fact, minors younger than 14 are not it its own delay difficulties and subject to prosecution under the HDCA pursuant to the create an administrative burden for Oranga Tamariki Act 1989). Further, non-compliance with Oranga Tamariki. Oranga Tamariki an order is an offence under section 21 of the HDCA. may also become involved with Conceivably, therefore, if a minor failed to comply with a family that would otherwise a civil order, then s/he could be subject to criminal pro- be unknown to, which may be ceedings – in the Youth Court, with name suppression. unnecessary (and again, an admin- There is no restriction on age in civil law. Very young Neither the istrative and financial burden). children could conceivably have their names part of the HDCA nor But presentation of documents by publicly searchable register for the rest of their lives for the Harmful Oranga Tamariki may be viewed as foolish words written when they were very young. The Digital less threatening than presentation author is aware of children under 14 who have appeared Communication by a bailiff, and this may make it before the court. Rules 2016 easier to obtain information from Neither the HDCA nor the Harmful Digital set out the the child. A terrified child may Communication Rules 2016 set out the principles principles lie to parents and the court in a applying on a name suppression application. Accordingly applying misguided attempt to avoid getting the general civil principles apply. These were set out by on a name into further trouble. the Court of Appeal in Y v Attorney-General [2016] NZAR suppression Each option has its problems, but 1512. While open justice is the starting point and “sound application. overall, option one would appear to reasons” are needed to displace this, “exceptional” or Accordingly be the most efficient and lays less “extraordinary” circumstances are not necessary. The the general costs upon the legal system (noting court must strike a balance between the competing civil principles that civil actions are the responsibility interests, considering whether the public will be able to apply. of the parties rather than the state).
47 April 2019 · LAWTALK 927
have been taken and no further action is required, the complainant may still take court action – potentially seeking exactly the same outcome as has already been provided by Netsafe. For example, seeking a take-down order and a cease and desist order when the material has already been taken down and the child has agreed not to post similar material again, and Netsafe has determined that no further action is required. This may seem unlikely, but it has happened. An application may be made in the context of a parent taking action on behalf of a child in a situation where both children have engaged in untoward behaviour. A parent may, however, be blind to their own child’s actions and want “compensation” for the hurt their child has suffered. They may see District Court action as the vehicle for this, or they may consider a court order to have more authority than Netsafe. The Law Commission’s original suggestion had been for a specialist tribunal, which would have a gatekeeping role. The District Court judges made a submission at select committee stage, suggesting that Netsafe only be able to submit matters to the court (which it would Rights of the Child do where it was unable to resolve them). This would The best interests of the child are not considered as part allow Netsafe to prevent claims proceeding to court of an HDCA civil action. They are in an HDCA criminal where realistic action had already been taken. Currently, action, through section 4 of the Oranga Tamariki Act. a person with an harassment order against them could Article 3 of the 1993 UN Convention on the Rights of continue on and make an application to the court, which the Child (UNCRC) stipulates that in court actions, the would require the defendant to see them in court. best interests of the child are a primary consideration. A gatekeeper role would not prevent appeals being Allowance is made for age in criminal matters – a child of made where a Netsafe decision was disagreed with. 12 or 13 appears in court only in the most serious matters, It would assist if the summary provided by Netsafe while 14 to 16-year-olds appear only in serious matters. at the conclusion of a matter referred to all remedies Younger children do not appear. Yet a child of any age is available to the court, and indicated whether the parties required to appear in the District Court on an HDCA matter. had sought a particular option. In particular, Netsafe Legislative recognition of rights under the UNCRC could indicate its view as to whether there was fault on would be consistent with New Zealand’s international both sides. This would assist the court in understanding obligations, and recognise that different considerations the full picture and potentially empower it to dismiss apply when dealing with children. It is suggested that a an appeal on the papers. A lay applicant’s view of affairs judicial settlement conference (JSC) in cases involving may mean that they do not disclose the full picture to minors on both sides (perhaps at the first call) could the court. (This would also assist in the current system allow for a more child-centred approach. The judge con- on without notice applications.) vening the JSC would not be able to hear the claim if it did proceed that far, but the cost of a JSC would surely Conclusion be less than a full Youth Court-type hearing with various The HDCA process is helpful for minor complainants, advocates and Oranga Tamariki present (recognising but risks being unduly oppressive for minor defendants. again the private aspect of a civil matter). Amendments relating to service and appointment of lit- igation guardians, and recognition of UNCRC obligations Gatekeeping could assist in protecting children. A return to something The HDCA requires the approved agency (Netsafe) to closer to the original concept of the gatekeeper role have had a reasonable opportunity to consider the for Netsafe would also protect children in vexatious complaint and decided on what action (if any) to take litigant-type situations, and reduce the workload for as a pre-requisite for action in the District Court (section the court. ▪ 12(1)). The applicant is also required to provide a Netsafe summary, which details what actions Netsafe sought Taryn Gudmanz [email protected] is a and what the result was. barrister based at Dunedin’s Princes Chambers. She has Netsafe, however, does not have a gatekeeper role. experience over a wide range of civil and commercial Even if Netsafe is satisfied that all reasonable actions litigation matters.
48 LAWTALK 927 · April 2019 UPDATE · IMMIGRATION LAW
UPDATE IMMIGRATION LAW Accredited employers, the current policy, proposed policy changes and ‘what’s next?’
BY MAHAFRIN VARIAVA
not New Zealand citizens or residence class visa holders, 2018 was a year of many ‘immigration-related’ whose talents are required by the employer; with the headlines shedding light on a range of issues from accredited employer having direct responsibility for migrant exploitation, through to the crisis many employ- those employees and their work output. ers faced in recruiting suitably qualified staff from the The premise behind most applications for accreditation is local labour market. a company’s anticipation of its future needs to recruit staff News of severe shortages in specific industries and the from offshore – an ongoing dilemma for many given the regions were frequent, with many employers turning dearth of suitably skilled workers in the local labour market. to the media – expressing concern on the difficulties Having successfully achieved accreditation, an employer associated with hiring migrants, due to the challenging then becomes a ‘trusted partner’ of INZ. This carries certain and ever-changing immigration landscape. obligations, but importantly offers a streamlined process For many businesses, obtaining accreditation status for obtaining a work visa for a prospective employee. was a means by which they could recruit offshore work- Under current requirements, a talent visa can be ers and save both time and money in the process. Those issued to those offered a gross annual salary of at least that were already accredited were able to benefit from $55,000, who are under the age of 56; with standard fast-track application processing and simplified docu- requirements for the approval of a work visa applying mentation requirements which meant that applications (including health and character). were relatively straightforward. Tangible benefits exist for both employer and employee This article provides an insight into what it means to under the scheme. Accreditation allows an employer to be an ‘accredited employer’ for immigration purposes. recruit offshore applicants without the need for a local I traverse the current policy and associated challenges ‘labour market test’ – an often complex, time consuming and look at changes suggested by the Minister of and uncertain process, requiring evidence a migrant is Immigration in a consultation discussion document the only suitable applicant. Having worked for two years released in December 2018. on a talent visa will also allow a migrant to apply for res- idence, a significant feature for those unable to do so via What does it mean to be an an alternative pathway; and an incentive to remain with accredited employer? the employer (at least until residence has been obtained). Immigration New Zealand’s (INZ) Operational Manual is The policy outlining the requirements for accredi- a key document relied upon by all stakeholders working tation is set out under WR1.25 and has been reviewed within the immigration field in New Zealand. The doc- regularly since coming into effect in 2010. However, ument includes a set of instructions which provide a although relatively familiar for those with a working guide for how applications should be assessed and what knowledge of policy, it can often present challenges for requirements should be considered when determining employers who from the outset appear good candidates the outcome of an application. WR1.20 of the Instructions, for accreditation. defines an accredited employer as “a New Zealand employer who has had an application for accreditation to Difficulties with the current policy employ persons under the Talent (Accredited Employers) The objective of the work visa policy overall is to allow Work Instructions approved by INZ”. New Zealand employers access to global skills and a Under instructions WR1.1, the objective of the policy diverse range of employees who can contribute to New is to “allow accredited employers to supplement their Zealand, as well as to their businesses in a myriad of ways. New Zealand workforce in the core area of their business The premise behind most applications for accreditation activity” through the recruitment of workers who are is a company’s anticipation of its future needs to recruit
49 IMMIGRATION LAW · UPDATE
talented staff from offshore due to Accreditation increasing difficulty in finding candi- allows an dates with suitable skills within the employer to local labour market. Having accred- recruit offshore itation status allows companies the applicants flexibility to hire offshore workers. without the The positions to which those indi- need for a local viduals would be recruited utilising ‘labour market the accreditation status, will be roles test’ – an often within the company which will not complex, time undermine the conditions of local consuming workers based onshore. and uncertain WR1.25.5 of the instructions process discusses what a case officer must consider when determining an application for accreditation. As a summary, the requirements are as follows: • That an employer must be in sound financial position; • That an employer must have human resource policies that are of a high standard; • That an employer has a demon- strable commitment to training New Zealand citizens or residence class visa holders; • That an employer has good work- place practices. These elements are central to an overarching (and sup- employment legislation; posedly balanced) assessment by INZ, the final arbiter • Where there have been minor breaches of legislation in the decision of whether the standard has been met. listed in WK5.1 (b)(iv), the degree to which the employer Of late however, we have become aware of a number of has put in place remedies to prevent similar breaches decisions causing issues for applicants which are to some in the future; extent perplexing. • Policies and processes the employer has put in place to Of particular note is INZ’s approach to an applicant’s ensure they remain compliant with immigration and “human resource policies” and “workplace practices”. In employment legislation; 2018 we were approached by a range of applicants (pri- • Feedback from relevant unions and other employee marily in the construction and hospitality sectors) that representatives. had received negative outcomes due to INZ’s assessment The policy does not ask the officer to assess these factors showing shortcomings in these areas. collectively because it does not say that the officers must In our analysis of these decisions we referred to policy, consider the first four factors. Therefore, these factors can taking the following into account: be considered individually when arriving at a decision. Clearly, an officer is gifted with exercising discretion when Requirement factors assessing an application; but, an officer must also exercise Under each of the requirements listed above, there is a a holistic approach by exploring alternatives when deter- list of factors that an immigration officer may consider mining whether the organisation meets the requirement. in determining whether an employer has made the said Therefore, INZ must question whether there is a need for requirement. It is noted that the wording of the policy a diversity policy within a small company. Additionally, a under WR1.25.5 makes it quite clear that this list is not lack thereof does not mean that an employer does not have conclusive. We note for example: good workplace practices. The same applies to having HR In determining whether employers have good workplace policies of a “high standard”. The ‘high standard’ threshold practices, an immigration officer may take into account is a comparative one, consequently it must be compared such factors as: against other employers within the same industry. • Whether the employer has diversity policies and prac- If we apply this to practice, we can simply ask INZ to tices in place as outlined by Diversity Works NZ; select any small business at random and query whether • The extent of any non-compliance with immigration or this business has “HR policies and process of a high
50 UPDATE · IMMIGRATION LAW
It is proposed that all employers wishing to hire migrants will need to be accredited and this requirement alone will facilitate change in the policy surrounding accreditation and accredited employer requirements. INZ intends to create an enhanced framework, streamlining the appli- cation process with three checks – also being referred to as the “Gateway Framework”. Firstly, the employer gateway. Under this gateway, INZ’s intention is to determine that the employer is in fact cleared to hire migrants. This includes ensuring an employer has good quality workplace practices and pro- cedures; that it complies with labour and employment laws; that it is committed to upskilling its workers; and that it is financially stable. Secondly, the job gateway. Here, no labour marketing testing would be required for jobs that meet a higher remu- neration threshold. As it currently stands, the remuneration threshold is $55,000 annually; the intention is to increase this to $78,000. Alternatively, if the employment falls under the new proposed Regional Skilled Shortage List, the labour market test requirement is exempt. However, in all other instances, a labour market test will be required. Finally, the migrant gateway. This is the application process the applicant must go through. In this stage, the applicant’s health, character, identity and capability (ie, training and experience) will be checked. What’s next? While the review of the policy is welcome, this already-com- standard”. While it is acknowledged that small businesses plicated category will be further hindered if employers do (who employ less than 10 people) may not be suited for not understand the new changes and requirements. accreditation; those businesses which employ at least In the next year or so, employers will require more 10 people, also may not have the finances, outgoings or administration of their workplace policies and processes the need to have extensive HR policies and processes in to better prepare themselves to ensure that they meet the place. Nonetheless, the lack thereof does not automatically requirements to qualify for accreditation. mean non-compliance; what it does illustrate is that small Given the heavy reliance on migrant labour in the current businesses simply thrive on getting through day by day. market, there is no doubt that, in the initial stages INZ will In the construction industry (especially), owners do not receive an influx of applications from employers seeking to spend copious hours conducting performance reviews or be accredited. We also anticipate a decline in the numbers disciplinary meetings for example. of applications for work visas in the short term. It is unreasonable for a case officer to paint each The above is an interesting shift in the aims of the accreditation application with the same brush without immigration system – processes that were once ‘migrant’ considering the size, nature of, and industry the business centric, to fit with INZ’s overall settlement outcomes operates in. But, in practice, these factors do have an have since shifted to focusing on the ‘employer’ and impact on organisations being able to meet the criteria what is in the employer’s best interests. The irony of for accreditation as it currently stands. course being that in 2018 employers complained that INZ INZ must consider the importance of this in assessing needed to make it easier for them to employ migrants applications for accreditation for small businesses and (under the existing policies) and now, the new policies must consider that despite their size, the policy intended do not seem (at first glance at least), like a solution to that these businesses be included. the problem. ▪
The proposal Mahafrin Variava [email protected] is an immigration Towards the end of 2018, the Government released a solicitor with Turner Hopkins and has been in the industry consultation paper for further changes to work visas that for four years. She attributes her success with clients to were employer-assisted. There are a range of categories her migrant background which has been an asset in her that fall under the employer-assisted work visa umbrella; ability to transcend beyond cultural barriers to provide Talent (Accredited Employer) Visas being one. a seamless service.
51 PROPERTY LAW · UPDATE April 2019 · LAWTALK 927
UPDATE PROPERTY LAW Strata / Units and Urban Development
BY THOMAS GIBBONS
In late February and early March, the Australian Disputes College of Strata Lawyers (ACSL) held its conference in In developments of all sizes, issues around pets, short- Auckland. New Zealand’s Unit Titles Acts (both 1972 and term letting, and other matters can be highly emotive. 2010) have drawn heavily on Australian models, and there Effective dispute resolution mechanisms can be challenging. is much to be learned from cross-jurisdictional study. This Generally, Australian states have tribunal models which short article editorialises on some key themes and ideas have low costs of access (no application fee, or a fee of less from the conference, with acknowledgement to those who than $100), but extreme levels of legal cost can arise – in presented on these topics. one example, over $700,000 in legals. This also means the Australian states place high emphasis on tribunal decisions Space and time as, effectively, quasi-precedents. In New Zealand, our Our cities are intensifying, and not just in Auckland. Tenancy Tribunal has high access costs ($850 or $3,300) Infrastructure costs, road congestion, and concerns about in its unit title jurisdiction, hears fewer matters, and lawyers urban sprawl are all driving greater densities. For some, generally debate court cases rather than tribunal decisions. greater housing density means concerns about slums, Over time, this may change. The availability of tribunal anti-social behaviour, and loss of an imagined New Zealand decisions remains an issue for New Zealand, and access way of life. For others, greater density reflects a modern to justice considerations suggest these should be more world, changing demographics and ways of living, and widely available. reflects good urban design. What seems clear is that density needs greater under- Caretakers standing not just in spatial terms, but across time. The Another issue arising in Australia is the role of caretakers, Unit Titles Act 2010 and Resource Management Act 1991 and the difficulty of enforcement when a caretaker does not do not speak to each other very well. Unit titles are often do their job properly. Since Body Corporate 396711 v Sentinel thought of as a method of subdivision, but what happens Management Ltd [2012] NZHC 1957, there has been little once the plan deposits? They need to be understood as a case law on management contracts in New Zealand, but mode of governance as well. A mode of urban governance. anecdotally at least, issues remain, especially the long-term nature of many of these agreements, and the difficulties Short stays in their enforcement and termination. The regulation of short-stay holiday accommodation – and these services are offered by a number of providers – is a Redevelopment critical issue in many jurisdictions. Different Australian states It has been noted that Auckland’s existing intensification have reached entirely different conclusions on whether body – a round of cross-leases in the 1970s and 1980s – is now corporate rules (often called ‘bylaws’ in Australia) can regulate impeding further intensification. The same issues apply, in short stays or even the use of units in general. The Privy different ways, in states like Queensland, which has a large Council’s decision in O’Connor (Senior) v Proprietors, Strata number of small, six-unit, developments. Broader issues Plan No 51 [2017] UKPC 45, though influential, has proved not arise in jurisdictions like Singapore, where the scarcity of to be the last word on the matter. Some bodies corporate land means that the ability to activate redevelopment is oversee populations the size of a small village, and – as case critical. This inevitably has an impact on property rights. law continues to show – owners do have interests in what Examples from Japan suggest that large-scale redevelop- the body corporate and other owners are doing. Some bodies ment and reconstruction is possible. corporate in Australia seek to avoid the issues that surround Finally, the conference heard from Martin Gold from bylaws restricting use in other ways – for example, saying Columbia University, New York, who spoke on the rede- that anyone staying in a unit must pay a ‘health and safety velopment of Times Square. There, a multi-decade project induction fee’ of $100, or $300 if after hours. This has impacts involved a combination of private developer payments, on those seeking to let out a unit for short term stays. public sector monies, tax concessions, land agglomeration,
52 LAWTALK 927 · April 2019 UPDATE · PROPERTY LAW
ground leases, and municipal bonds to create the Times As we attain greater recognition of the costs of infra- Square we know today, with more tourists, more jobs, structure, the externalities of sprawl, and the needs of better businesses, and less crime. the many, the balance between property rights and the collective interest may be shifting – both within the area How we live of unit titles, and in urban development more broadly. When we think about what our cities look like, and how Greater attention is needed to private governance, as people live in them – and when we think about what an urban well as public governance, and what this means for the development authority might do – it is useful not just to think future of our urban areas. ▪ locally, but to look further afield. Any lawyer acting on unit title matters should have some knowledge of developments Thomas Gibbons [email protected] in Australia, and any lawyer looking at broader topics of is a director of Hamilton firm McCaw Lewis. He writes urban development should have an eye even further afield. and presents extensively on property law.
53 ALTERNATIVE DISPUTE RESOLUTION April 2019 · LAWTALK 927
ALTERNATIVE DISPUTE RESOLUTION Dispute prevention: using mediation as a business tool Part 2
BY PAUL SILLS
when both parties reach a stale- of information (an essential ingre- In the last article (LawTalk 926, mate for these reasons. dient for early resolution); March 2019, page 56) I introduced 2. Parties in this position can benefit • Managing expectations; the concept of early intervention in from a deal mediator’s neutral • Early reality testing; commercial relationships – using and objective perspective. Just as • Assisting parties to manage the mediation as a business tool rather when the parties are in dispute, a relationship and coaching them than as an adjunct to litigation. deal mediator can build rapport on this aspect; In Part 2 we will look at some and trust with both parties, help • Designing the dispute resolution practical examples of this concept maintain relationships that are process that will best suit the at work. I would recommend reading starting to fail, assist in option nature of the dispute. “Tailored Commercial Mediation generation and essentially carry All of these roles can equally be Options: What are they, and how can out all the functions they would applied to the facilitation of issues a sceptical market be encouraged to when mediating a dispute. that are not yet disputes but may try them?”, a paper presented to the Deal mediators may also remain become so if the parties’ commu- 2015 AMINZ annual conference by engaged with the parties and effec- nication (or lack thereof) lets them barrister and commercial mediator tively stay on as a mediator to the down. Mark Kelly. agreement (discussed below). The Rather than looking at the appoint- mediator can then continue his or ment of a mediator to the dispute with Deal mediation her role in assisting the parties to a defeatist attitude (ie, the parties are A deal mediator may be appointed manage the relationship and their inevitably going to end up in dispute), to assist parties that are not in dis- communication, as well as mediating the appointment can be taken out pute but who are trying to agree the any disputes which may arise under of the context of dispute resolution terms of a commercial contract. This the agreement. and reframed as the appointment is an emerging trend and recognises of a mediator to the agreement. The the fact that parties who have a Mediator to the dispute rationale and focus for the appoint- great deal invested in the outcome This involves appointing a mediator ment then shift from the “inevitability” of their negotiations often need help to a dispute at the earliest possible of a dispute to maintaining healthy getting through impasses in the opportunity. Under a mandatory relationships and communication process. Deal mediation addresses mediation provision, this would between the parties. two things: occur when one of the parties first 1. Parties invest a great deal in gave notice of the dispute. Mediator to the commercial negotiations (due The aim of such an appointment is agreement diligence, loss of business oppor- for the mediator to assist the parties Large construction contracts make tunity, sunk costs on advisers, in reaching a resolution. Given the great use of dispute boards to ensure funding costs, etc). This invest- early stage of the intervention, the that disputes – as and when they ment can create an adversarial role of the mediator would include: arise – do not interfere with the aspect to the negotiations because • Assisting in identifying impedi- critical path of the project. The board the parties may each feel they ments to settlement; decides which disputes to resolve need to recover their investment • Ensuring that the right decision along the way (and then does so) by obtaining some advantage in makers are engaged for each party; and which disputes can be held the final outcome. Deals fall over • Assisting with the fair exchange over to the end of the project and on
54 what terms. The board’s involvement keeps the construction project on track. Building on international best prac- Dispute boards are mostly used in complex, high–value construction tice, the key aspects of the protocol are: projects. The board is created by contract and the decisions can be either 1. A proactive dispute prevention binding or non-binding. The board can stay active throughout the con- approach is adopted. The dispute tract with regular site visits and meetings with the parties in order to board is appointed from the start proactively identify and resolve issues before they escalate into disputes of the project, not waiting until and, where necessary, make formal determinations. The alternative is a disputes have developed and are board that determines disputes only as and when they are referred to it. entrenched. This prevents matters I am advocating a similar application in the mediation/facilitation sphere. snowballing out of control. That is, the parties use the assistance of a neutral, objective, trained medi- 2. The protocol provides for a wide ator to assist them to resolve all issues that may potentially derail their range of methods to help address relationship and therefore the contract. This form of dispute avoidance is disputes should they arise. This proactive, effective and has the best chance of maintaining and developing includes mediation, opinions and the relationship between the parties. determinations. 3. The protocol has professional and Singapore’s new protocol administrative support through An example of this concept and practice is the Singapore the Singapore International Medi- Infrastructure Dispute-Management Protocol launched ation Centre and the Singapore in October 2018 which is aimed at minimising time Mediation Centre. Both will assist and cost overruns in large infrastructure projects. The with identifying and appointing intent of the protocol is to assist parties involved in board members, administrative mega infrastructure projects to manage their disputes services (physical meetings, and minimise any risks associated with overruns. The escrow arrangements, other protocol is part of the efforts to establish Singapore as administrative services). the infrastructure hub of Asia. Mediation as a business tool may Asia apparently needs US$1.7 trillion of infrastructure prevent time and cost overruns in per year from 2016 to 2030. Infrastructure projects are specific contracts and foster positive renowned for cost and time overruns as they are typ- commercial relationships that may ically complex and involve multiple parties. Disputes Mediation as generate future opportunities. While are often unavoidable and will lead to delays in higher a business tool pre-dispute mediation strategies are costs if not managed properly. may prevent already being used effectively for Under the protocol, differences will be proactively time and large-scale projects, the benefits are managed to prevent them from escalating into dis- cost overruns equally available to parties engaged putes. From the outset, the parties to a project will in specific in smaller projects by tailoring the appoint a dispute board comprising up to three neutral contracts and process appropriately. ▪ professionals. The board members will be experts in foster positive relevant fields such as engineering, quantity surveying commercial Paul Sills paul.sills@paulsills. and the law. The dispute board will follow the project relationships co.nz is an Auckland barrister and from start to finish and manage issues through a that may mediator, specialising in commer- range of customised dispute avoidance and resolution generate future cial and civil litigation. He is an processes. opportunities. AMINZ Mediation Panel member.
55 ALTERNATIVE DISPUTE RESOLUTION April 2019 · LAWTALK 927
ALTERNATIVE DISPUTE RESOLUTION How to pick a mediator
BY CAROLE SMITH Enthusiasm Many mediators sell their services by saying how expe- Most lawyers, and some clients, get the potential rienced they are, how many mediations they have done, benefits of mediation. Cost/time saving, stress reduction, and even their “success” rate (however that is defined). relationship preservation, confidentiality, blah blah blah. The downside of all of that is the real likelihood that they are But once the decision has been made to go to mediation, burnt out, and just a bit fed up with the tediousness of it all. how to find a mediator? And not just any mediator – the There is much to be said for enthusiasm. As a process, right one for that dispute? mediation requires energy, indefatigability, and creativity. What follows is a rough guide for picking a mediator. These are hard to drum up if, as a mediator, you’re a bit over it all. Specialisation (Quite) a few years ago, a colleague of mine was engaged Diversity in an IT case involving internet service providers. The Yes I know, there has been a lot said on this general topic second week into the trial, the judge asked “what is the recently. So I’ll keep it brief. There are lots of white male internet?” Granted, it was early days, but the point is that commercial mediators. They cannot help it of course. There most litigators would prefer to have their case heard by is a teensy-weensy list of female commercial mediators a judge who at least has some knowledge of the area of hiding on the Russell McVeagh website. And to get even law before them. more diverse than gender, what about cultural consider- In contrast, most mediators subscribe to the belief that ations? It is fundamental that disputes involving parties it is the “process” they are really there to help facilitate. of non-European descent involve a mediator who gets the The substance is often seen as being something best left potential impact of cultural differences on the process. to the lawyers and/or parties. Why the distinction? Of course, mediators are not judges. Mediation qualifications They cannot make decisions. They are not supposed to give It appears that many mediators undertake approximately legal advice. Many mediators are not even lawyers. So why one week of training in the field of mediation/negotiation/ does specialisation matter? Because in disputes involving dispute resolution combined. There is only so much that discrete (and sometimes technical) areas of the law, it helps can be learnt in a week, even if it was intense. Look for if the mediator has “some mediators who have a university qualification in dispute idea” what the parties/ resolution, or equivalent. lawyers are talking about. Areas that spring to mind Personality include construction, tax, This is kind of connected to the enthusiasm point above. trusts, IP, IT, etc. Some idea Except this is broader. Mediation can be chaotic. It is a juggling saves potential misunder- act from start to finish. Forget rigidity. From flexibility evolves standings, time, and allows creativity. Forget mediators who use one model of mediation mediators who really grasp regardless of what the situation requires. Forget mediators the subject matter to be Mediation can who shy away from asking difficult questions. And last, but much more effective in be chaotic. It by no means least, forget egotistical mediators. They will helping the parties reach is a juggling suck up all the oxygen in the room. ▪ resolution. For example, act from start mediators who attempt to to finish. Carole Smith carolesmith@fortyeightshortland. reality check lawyers in a Forget rigidity. co.nz is an Auckland-based barrister, mediator specialist area of law they From flexibility and negotiator. See www.carolesmith.co.nz know nothing about are evolves and www.fortyeightshortland.co.nz for further unlikely to be productive. creativity. information.
56 LAWTALK 927 · April 2019 LEGAL RESEARCH
LEGAL RESEARCH Taking a break to secure our future
BY LYNDA HAGEN
It is with a heavy heart I write this month’s article. As the old saying goes, sometimes in life one needs to try and find the silver lining in the dark clouds. This article feels a bit like that. Recently the Law Foundation has had to make the tough but necessary decision to go into recess. This is to ▴ Lynda Hagen allow its funding base to rebuild so that, in time, it can relaunch to support a new generation of legal research. The decision was very difficult, but doing so now, while the Foundation has some remaining funds, provides Always backed quality projects the best prospect for its eventual revival and long-term We know that the work we have supported has driven sustainability. It is a brave decision: the alternative of better legal and public policy practice in New Zealand. depleting remaining funds and fading away was not We have always sought out quality projects and people acceptable to us. to back. We have never sought a high profile, preferring Our last funding round will be in June 2020, after to be the enabler of great research, and ensuring the which no new grant applications will be accepted. projects we support get the attention, rather than the Following that, the Foundation will gradually wind Foundation itself. Maybe that back seat role has been down as the projects on its books are completed. part of our problem. People do not seem to make the link None of us at the Foundation wanted to take this between the success of the amazing work we support step. I’m personally disappointed about it, as is my and the Law Foundation that made it possible. board, but as we worked through the options over the There is, of course, the opportunity to speed the Law last year, and bounced ideas off key stakeholders we Foundation’s return to the market through financial engaged with, it became clear that this was the sad, donations. Even though we are going into recess, the but realistic, option that would ensure a better legal Foundation would be open to receive donations for its research future. general work or for specific projects. That would reduce Our main difficulty has been our inability to the length of our recess period. It is regrettable, despite replenish our funding base. We lost access to stat- the value we have added to New Zealand’s public good, utory funding in 2008 and since then our fund has and the importance to us all of quality, independent steadily eroded to the point where we’ve had to make legal research, we have never received a single donation a difficult call: disperse our remaining funds over the since we started making grants in 1992. It is not too late. next few years and consign ourselves to history, or call We are taking this step because we genuinely believe a halt, invest our remaining capital of approximately that our work, and the niche we fill supporting “better $12 million, and try to rebuild a funding base from law” and good public policy, is too important to dispense which to re-launch in about 10-15 years’ time. We with altogether. The timing of our decision to “hibernate” chose the latter course because we believe that, after dovetails well with the recent arrival of another funder, a hiatus, we will be able to re-start sustainably and the Borrin Foundation. This provides legal researchers resume making grants. with another potential source of support in the interim.
57 LEGAL RESEARCH April 2019 · LAWTALK 927
LEGAL RESEARCH
We have always sought Thanks to out innovative, future-fo- projects The Borrin cused projects. We have backed by us initiated research into new over 26 years, thinking in law and policy Family Court Foundation around human reproduc- procedure has tive technologies, better improved and approaches to regulation, the treatment Making a difference and rapidly-emerging new in court of technologies including vulnerable to New Zealand, digital currencies, driver- witnesses less cars, artificial intelli- including through the law gence, and so-called “brain children and fingerprinting”. sexual violence Thanks to projects victims has BY MICHELLE backed by us over 26 got better WANWIMOLRUK years, Family Court pro- cedure has improved, the treatment in court of vulnerable witnesses “We believe law is essential to a flourishing society including children and – one that is just, inclusive, tolerant and free. Our vision is sexual violence victims of an Aotearoa New Zealand where everyone understands has got better, the use of the role and value of the law, and everyone enjoys the Urgency in Parliament protection and opportunity that it provides.” – the Michael was revised, and the ACC and Suzanne Borrin Foundation’s vision statement. appeals process has been This statement reflects our founder, Judge Ian Borrin’s overhauled. aspirations in establishing the Foundation with his $38 Our projects led to the first restorative justice initiatives, million bequest. The Borrin Foundation is his gift to New addressed Māori and Treaty issues, and enabled changes Zealand. It is a special gift, because it requires people and new thinking on human rights, the constitution, the like you – people who, like Judge Borrin, love the law, environment and mental health, to name but a few. care deeply about how the law works (or doesn’t work), Alongside research, the Foundation has supported pro- and want to make a positive difference to people in jects that strengthen legal practice, for example through our country. support of legal education and mooting competitions. The Borrin Foundation is here to make a difference All of this and more has been recognised by those who to the lives of New Zealanders, through the law. We know us well, including academia, the law deans, the Law do this by supporting legal research, education and Society, and many in the judiciary and in legal practice. scholarship through effective philanthropy. Part of our We sincerely appreciate the backing we have had from ‘effective philanthropy’ approach is to invest in people key stakeholders as we worked through taking this difficult to advance our goals. We want to find, and fund, people decision, particularly from our former Patron, Dame Sian who share our vision for Aotearoa New Zealand. We want Elias, former trustees, the Law Society and the law deans. to be the propeller, the extra ‘boost’ to enable people While all are disappointed that the Law Foundation is to maximise their talents and pursue our shared goals going into recess, they understand the rationale for the for New Zealand. decision, and see this as the best way to secure a brighter You may have discarded the Borrin Foundation to the future for legal research. ‘not relevant pile’ when you heard the words ‘legal research Personally, after more than 20 years at the helm of and education’. But the Borrin Foundation is here for a the Foundation, I have got to know our legal research much wider group of people, not only academics and community very well. I will miss our interactions, my researchers. We are also here for practising lawyers, doing visits to the law faculties, and the excitement I always feel everyday practical work that contributes to our vision. In from hearing the passion researchers have for their work, fact, Judge Borrin, in the Borrin Foundation’s Trust Deed, and their aspirations to “make things better”. I feel very drew special attention to the foundation funding “members privileged to have been part of this for so many years. ▪ of the New Zealand legal community as a whole”. This includes “members of the judiciary (being judges or retired Lynda Hagen [email protected] is Executive judges of any of the courts of New Zealand), members Director of the New Zealand Law Foundation. of the practising legal profession (whether engaged in
58 the public or the private sector), lawyers ▴ From left to right: Michelle Wanwimolruk, Sir Terence Arnold QC, holding an academic appointment… and Richard Caughley, Professor Mark Hickford, David Goddard QC law students of graduate or post graduate (Chairperson), Kathryn Beck status”. The Borrin Foundation is looking to invest in people who are already in their legal careers. In April 2019 we will distribute a survey looking at how the Borrin Since the Borrin Foundation’s launch Foundation can invest in individuals. We would love to hear from you. in February 2018, we have announced We are seeking your ideas about: over $3 million of grant funding across • how we can support people who are already in their careers, about 30 grant projects. The projects have • how we can build capacity in the legal community, focused on areas where the law is not • how we can maximise the potential that exists in the legal community serving New Zealanders well – predom- to be a greater force for good. inantly the criminal justice system and Judge Borrin’s gift is one that relies on the participation of people who family law. The criminal justice system care deeply about making a positive difference and about the role of law in is an area where transformative change society. We hope that you will join us in this journey towards an Aotearoa is needed. Among Western developed New Zealand “where everyone understands the role and value of the law, nations, New Zealand’s incarceration and everyone enjoys the protection and opportunity that it provides”. ▪ rate is second only to the United States. Family law touches many aspects of New Michelle Wanwimolruk [email protected] is Chief Zealanders’ lives, often when they are at Philanthropic Officer of the Michael and Suzanne Borrin Foundation. Further their most vulnerable. A full list of grants information on the Foundation is available at www.borrinfoundation.nz is on the Foundation website.
59 April 2019 · LAWTALK 927
ACCESS TO JUSTICE High rewards for those representing the low-paid The work of in-house lawyers at New Zealand’s unions
BY CRAIG in the country including those who earn their living in STEPHEN hotels, retail, fast food, call centres and restaurants. He describes his role as more of a legal officer than a full-blown lawyer role and one he essentially stumbled “There is power in a factory, power in the into after being an organiser at both Unite and Finsec. land, power in the hands of a worker, but “I very quickly found out that I enjoyed the legal side of advocating for members.” it all amounts to nothing if together we After a spell at the Wellington People’s Centre, an don’t stand, there is power in a union” – organisation advocating for beneficiaries and the Billy Bragg, There Is Power In A Union (1986) low-paid, he worked in restorative justice with the Community Law Centre. While there that he decided to study law at Victoria University of Wellington, being Union lawyers are few and far between in New admitted in December 2017. Zealand but this select group of in-house lawyers per- “Rather than coming straight out of school and knowing forms a largely unheralded role. that I wanted to be a lawyer, it was more a case of finding It’s not a role that is as financially rewarding as other through my work that that was what I wanted to do. in-house roles but every union lawyer has their own “I’m pretty new when it comes to be being a practis- motivations. And as LawTalk found out when it talked ing lawyer within the union movement, but I’ve a long to three of them, they also come from very different involvement in the union movement.” backgrounds: one was once a printer’s apprentice, one Oliver Christeller is the Senior Solicitor for First Union, a union rep and the other a former paralegal. which represents workers in transport, logistics and Duncan Allan is an industrial officer with the Unite Union manufacturing and also thousands in white collar jobs, which represents some of the lowest paid and fluid workers such as finance and commerce.
60 LAWTALK 927 · April 2019 ACCESS TO JUSTICE
He is a lawyer who became a We’ve seen union solicitor, graduated from an increase in Victoria University, was admitted in strike action 2010 and then worked voluntarily in the public with the People’s Centre. sector which Initially, he was carrying out parale- indicates gal work at Finsec, before becoming some the legal rep for its successor, First confidence Union. Much of his work centres on the part around providing legal advice to of working union organisers – “they are the first people line of representation for union mem- that this bers” – and he represents members government individually and through the union will listen to in dealings with the Employment their concerns Relations Authority and the courts. Anne-Marie McInally is General ▴ Duncan Allan, industrial officer Counsel at E tū which represents with the Unite Union workers at a diverse range of industries including engineering, manufacturing, food, communications and aviation. She studied law in Auckland and was initially keen on family law. However, a vacancy came up at the then National Distribution Union to cover for maternity leave, which became three years. She then moved to the EPMU as an in-house lawyer and that union later joined two others to form E tū where she is now General Counsel. It took an injury to coax her into studying law at the age of 26. “I was an apprentice printer until I injured my hand and had to retrain. And prior to taking on the apprenticeship I had worked as a judge’s associate. I was attracted to the law but wasn’t able to take the leap from paid employment to studying until I was forced to retrain.” Justice otherwise denied All three union lawyers say their role is offering an alternative to paying large amounts of money to lawyers that workers, who may be on the minimum or living wage, could clearly not be able to pay for. They represent people who are prone to unjust dismissal, financial struggles brought on by illness and injury and exploitation. ▴ Anne-Marie McInally, General Duncan Allan is based at the rundown Trades Hall in Vivian Street in Counsel at E tū central Wellington. “A lot of workers in Unite, if they weren’t part of the union, they simply wouldn’t have any access to justice: they’re low paid, they can’t afford a lawyer and there’s not many options if they’re having issues at work,” he says. “In these low-paid, largely casualised industries it’s like the wild west out there in the way they’ve been treated so there’s real issues with that access to justice and unions are a way in which people can get that. “The work is quite varied, and this is the interesting thing about being a union lawyer is that you’re working in-house so you’re giving legal advice to the union on the things that they do and how they operate,” he says. “But a lot of the work is individual representation of members, so things like personal grievance claims and Employment Relations Authority hearings. There’s a lot of individual representation but also dealing with contractual disputes between the union and an employer. I get to dabble in a lot of different areas.” Mr Allan contributed to Unite’s submission on National’s Employment Standards Legislation Bill which passed its third reading in March 2016. “Unions are such an important voice in the submission process because there’s large organisations representing employers, and without unions providing submis- sions and a counter point, there’s no one else who can fill in those spaces.” ▴ Oliver Christeller, Senior He says the work is rewarding and what he has always wanted to do. Solicitor for First Union
61 April 2019 · LAWTALK 927
the financial means, to pursue a case through to mediation or the Authority including migrant workers. “They often are in a situation where they have not been paid or are being paid at rates well below the minimum wage – and I mean as low as three or four dollars an hour. “Generally, migrant workers only have a visa to work for a particular employer which means that the employer has control of their legal status in New Zealand because if they cease to be an employee of that particular employer then they lose their legal right to be in the country.” Mr Christeller says First Union has had its share of success and the “The type of work we’re doing certainly suits someone who possesses that most rewarding aspect of his job is passion for the work. It’s not what you do for the money, and it probably when it is able to improve the terms suits people who have that social justice background or have been involved and conditions in the contracts of in those type of campaigns in the past, not necessarily unions or employment vulnerable workers. rights but any kind of NGOs or have advocated for access for justice.” But he says that while the envi- ronment around workplace relations The job is a privilege has improved since the establish- At E tū Anne-Marie McInally works with organisers on collective agreements, ment of the Labour-led Coalition disputes, litigation, represents individual members, and also educates new government, with the changes in the organisers. Employment Relations Amendment “Most of the case work we do is personal grievances, usually over dismissal, Bill, these are “relatively minor”. and workplace injuries, including representing members who have issues “I don’t think those changes are with ACC. going to have a massive impact, “We also assist in submissions on bills before Parliament so there’s a lot however, things like fair pay of variety that you wouldn’t get in many in-house positions. agreements, depending on how “It’s not unusual to have to engage with dozens to hundreds of workers they come in and where they came at a meeting and explain what a legal situation entails and give them advice in, have the ability to materially and recommendations and allow the democratic processes to operate. But improve conditions for workers.” you also have to try to guide them to make good decisions and I think that Nevertheless, Ms McInally feels representing very large groups is something that is unique to union lawyers.” there are significant changes in the Ms McInally says the job is very challenging but highly stimulating as bill, and also in workers’ outlook, she is dealing with a raft of issues: “there’s no time to get bored”. that are beneficial to workers and “It’s a privileged job because our members pay a fee every week to belong therefore the country as a whole. to the union and for most of them when they get into difficulties there is “We’ve seen an increase in strike simply no way that they could afford to pay someone $400 an hour to action in the public sector which represent them. So we have the opportunity to step up and help them with indicates some confidence on the their issues, and it is very rewarding to assist them in that. part of working people that this “Sometimes this may involve protracted litigation. On other occasions, a government will listen to their well-timed phone call has seen a worker reinstated to a job they love,” she says. concerns,” she says. “My dad wore overalls to work every day. On the rare occasions he had “We have seen some strengthening to see a lawyer he’d put on his good clothes and it was a stressful exercise. of the good faith obligations in the I get so much pleasure from putting working people like my family at ease amended bill and that will go some in their dealings with the legal system, knowing that even if they had the way to improve working relationships means to get representation outside of the union, they would probably between workers and employers. So lack the confidence to do so.” we are facing a period of some posi- tives but incremental change.” Migrant workers In terms of pro bono work, Mr Oliver Christeller notes that a large number of the low-paid and exploited Christeller says he encourages are people who do not speak English as their first language, which creates lawyers to offer their expertise at additional complications for them, both at work and in pursuit of justice and Citizens Advice Bureaux, Com- better conditions. munity Law Centres and migrant “I’ve represented a lot of people who wouldn’t have the connections, or organisations. ▪
62 LAWTALK 927 · April 2019 ACCESS TO JUSTICE
ACCESS TO JUSTICE The firm that represents unions – and employers
BY CRAIG STEPHEN
So where do those unions without in-house coun- sel go for legal assistance? Among the small group of firms that represent unions is Wellington-based McBride Davenport James. They also represent a range of employ- ers, but not both sides at the same time naturally. Partner Paul McBride, who has for many years appeared in the Employment Relations Authority, ▴ Paul McBride Employment Court and senior courts, says the firm’s six-member employment team currently represent four trade unions in the transport sector and also other unions in other sectors. so they tend to come to arrangements that accommodate “In the transport sector we have some long-standing – their financial vulnerability. by which I mean 15 or 20-year relationships – with some “One of the things that unions look for, in my expe- unions. They are unions that largely don’t have in-house rience, is cost effective service. We look at a range of lawyers and effectively we take on the role of providing factors including ongoing relationships, familiarity with their legal advice and legal representation,” he says. the general issues and context, the interesting variety “One of the unions we act extensively for does have of work, volume of work and other factors that temper an in-house lawyer but for various fees we could otherwise charge.” reasons they instruct us to do the Mr McBride says the firm ensures there is no con- litigation work for them and to deal flict of interest as it also represents employers, and with other things in employment, individual workers. health and safety and other areas “That work is generally in sectors where we don’t that we specialise in.” represent unions, so at one level it enables us to bring A recent ongoing dispute has a balanced approach to the advice we give both to our been at the Lyttlelton Port where employer clients and our union clients because it means members of transport unions went we know which buttons can be pushed on both sides. on strike over pay and safety. We can “We can take a far more critical approach to advising “There’s been extensive industrial take a far each of unions and employers: no beating around the action involving the Lyttleton Port more critical bush and no posturing and stuff like that because we Company over the last few years approach to have seen all of that before. It’s best just to get down involving strikes and pickets and advising each and look at all the real issues and look at what the prag- we have been heavily involved in a of unions and matic solutions to those might be. Because, when you’re series of court actions for a number employers: working for employers who have ongoing relationships of unions arising from that dispute.” no beating with unions, or vice versa, the dynamics include that Mr McBride says the firm appreci- around the neither party is going to disappear anytime soon. So ates that unions don’t have a great bush and no even if they don’t like each other they have to work deal of money to spend on legal fees, posturing together, to a greater or lesser extent.” ▪
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PRACTISING WELL Talking about mental health Be the one: start a mental health movement in your workplace
BY SARAH TAYLOR
It’s OK to ask for help: This article dis- him to speak at a conference she was organising. cusses mental health issues and suicide, Grant spoke at that conference, but it was tinged with sadness because a few weeks after their conversation, which may be an upsetting or sensitive Lucy committed suicide. “During our chat, she didn’t topic for some people. share her own very real struggle with depression and I didn’t pick up on this,” Grant said. “Lucy left behind a young son and daughter, husband, family, friends Three years ago, after losing a close workmate and workmates who would miss her terribly.” Grant to suicide, Grant Pritchard embarked on a journey to gets tears in his eyes as he tells me this. Lucy’s death improve mental health in the workplace. The result is clearly still affects him. “Losing Lucy to suicide lit a thriving mental health movement at his workplace, a fire in me on the topic of depression and suicide, Spark, that is helping eradicate stigma, improve mental especially in the workplace. And that’s why I started health literacy, and create an open and supportive what I did.” mental health culture. I first met Grant last year at the ILANZ Conference What did he start? during an informal session he hosted with ILANZ Grant started building a mental health network at President Sian Wingate on the topic: “How do you pri- Spark – a community of workmates who share, help, oritise mental wellbeing in your workplace?” The session and support each other in the area of mental health was fantastic – the discussion flowed and everyone in the and wellbeing. From small beginnings in late 2017, the room was engaged and motivated. mental health network has grown into a company-wide, Grant’s enthusiasm was infec- management-endorsed initiative that is changing work- tious and afterwards I bowled up place culture around mental health. to him for a chat. We connected instantly and he told me about some How did he get it going? of the mental health initiatives he’d Things kicked off at one of Spark’s innovation camps – an started at Spark. Since then, Grant annual event at which over 100 people, from within and and I have met several times and outside Spark, get together to connect, learn, solve prob- I’ve grilled him about how to kick- lems, and dream big. The camp is a participant-driven start a workplace mental health “unconference” format where delegates volunteer to movement. lead sessions on topics of interest or importance to them. Grant put his hand up to facilitate a session on: The fire “Losing Lucy “How could Spark become New Zealand’s most mentally Lucy Sedgwick was a close colleague to suicide lit healthy workplace?” of Grant’s at a large Australian telco. a fire in me The session was popular. “There weren’t enough “Lucy led a large team and was one on the topic seats, but there were plenty of hearts on sleeves, tears, of the legal team’s highest-perform- of depression laughs, and encouragement,” Grant said. “There was a ing senior lawyers,” said Grant. “She and suicide, growing consensus that we could – that we must – do had a profound and positive impact especially in more to deliver better mental health outcomes for on everyone around her, including the workplace. our people.” me.” And that’s After the camp Grant and some colleagues created an Lucy and Grant caught up at the why I started informal team to do this and Spark’s journey to better end of 2014 and she encouraged what I did.” workplace mental health began.
64 ▴ Grant Pritchard and Sarah Taylor
Building the case do nothing, or next to nothing,” Organising “We came up with a big, hairy, said Grant. “The worst thing you Grant recognises that the Spark audacious goal: to make Spark can do is do nothing. It’s OK to community has grown and thrived New Zealand’s most mentally start small and learn as you go,” largely because of a core team who healthy workplace,” Grant said. “We he said. meet regularly to plan and under- realised that to make this a reality Grant recommends an ongoing take specific initiatives. we couldn’t just take a bottom-up process that involves listening, “Having a small team of mental approach, we needed to gain senior organising, promoting, connecting, health evangelists has helped main- management buy-in and approval.” and supporting: tain the momentum and reach of With a steer from the Mental our programme,” said Grant. He Health Foundation, the team made Listening points out that while it’s essential the case for investing in workplace “The first thing we did was listen,” to co-ordinate with key stakeholders mental health, focusing on four key said Grant. “We didn’t want to like HR, it’s not necessary for these benefits: deliver a solution in search of a teams to lead the initiatives and do • It’s the right thing to do, problem or solve the wrong prob- everything themselves. • Our people will love it, lems entirely.” Grant recommends identifying • It makes good business sense, Grant and the team developed a trusted champions across the • We’re required to do it. short survey in consultation with organisation and giving them the “By presenting a clear vision, the Mental Health Foundation. opportunity to lead and organise. business case, and a game plan, “The survey helped us understand we hoped to make it easy for senior key themes, focus our attention on Promoting stakeholders to support this initia- priority issues and get some quick To grow and maintain momentum, tive,” said Grant. And that’s exactly wins,” he said. the team regularly share news, what happened. Grant points out that in-house organise speakers, and run other lawyers are often well-placed to promotions. Then what? see how a workplace is doing Spark’s mental health network “Mental health can be a compli- in the area of mental health as initially started small with five cated topic. Many organisations they can be connected to senior people. At the time of writing this understandably worry about management and have a good article, more than 600 staff are doing the wrong thing – so they cross-functional view. involved in the community, which
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is one of the largest and most highly-engaged groups about Spark’s journey to better within Spark’s corporate social network. workplace mental health. He’s keen Grant recognises that competitions and giveaways “I’ve been to inspire other lawyers and will be may not always be possible or appropriate, but he involved in throwing down a gauntlet: encourages thought being given to innovative techniques some pretty Be the one: start a mental health to drive engagement and participation. big strategic movement in your workplace. ▪ projects Connecting during my Grant Pritchard has worked as Grant thinks the most important thing they’ve done career but an in-house lawyer since 2010 in at Spark is to build community – a safe and supportive helping New Zealand and Australia. He space where staff can connect, share and learn about deliver better recently returned to Spark's legal mental health and wellbeing. mental health team after taking on a commercial “We didn’t realise just how powerful the concept of outcomes for management role in the procure- community would be in changing the conversation my workmates ment team. He is a member of the about mental health at Spark. The level of support, care is one of ILANZ Committee and to his friends and candour in this community just blows my mind,” the most and family, he is known as “Gadget said Grant. “We’re seeing stigma fading, people sharing meaningful guy” or “Mr fix-it” due to his love resources and support, and most importantly taking things I have of all things tech. that first step of seeking help.” ever done.” Sarah Taylor is the co-ordinator of Supporting this series, a senior lawyer, and the The team have led a number of initiatives aimed at director of business development at reducing stigma, raising awareness, and driving a lexvoco, a law firm focused on the mentally-healthy workplace culture, including: success and wellbeing of lawyers. • inviting external speakers like Sir John Kirwan and Mike King to talk about their mental health journeys If you’d like to contribute to an and share practical advice, article in this series or have a topic • supporting mental health events like Gumboot Friday, Pink Shirt Day and you’d like covered, please contact Mental Health Awareness week, Sarah: [email protected] • running training on wellness and resilience to help give people practical skills to support their mental health and wellbeing, • organising peer-led lunch-and-learn sessions for staff, • designing posters and other support materials to reduce the barriers to asking for help. Some useful resources: • www.mentalhealth.org.nz Fitting it in • www.depression.org.nz Being a mental health advocate is not part of Grant’s formal role at Spark. • www.toughtalk.nz Grant and the team undertake the mental health initiatives voluntarily • www.wellbeingatthebar. alongside their normal roles, doing a lot of it in their spare time. org.uk Given Grant’s busy work and home life and his role on the ILANZ • www.wellplace.nz Committee, I wondered how he fits it all in. “Spark and my managers have • www.ruok.org.au been very supportive of my mental health advocacy work. Sometimes I can • www.lawsociety.org.nz/ squeeze in a bit around my work day, but I also use my commute time to practice-resources/ get things done,” he said. “I’ve been involved in some pretty big strategic practising-well projects during my career but helping deliver better mental health outcomes If you’re worried about your or for my workmates is one of the most meaningful things I have ever done.” someone else’s mental health, reach out to someone you What’s next? trust, your GP or local mental Grant and the team have only just begun. “We’ve got plenty more listening health provider, employee to do and more ideas to try,” he said. “We’re going to keep innovating and assistance programme. learning in this area.” Lifeline (0800 543 354 or free Grant is encouraging lawyers to think big in the area of workplace text HELP to 4357 mental health. “Now is a good time for us to take a fresh look at how we Need to Talk? (text or call 1737) do mental health at work. Lawyers, particularly in-house lawyers, are Suicide Crisis Helpline (0508 uniquely positioned to make real difference in the area of mental health 82 88 65), or in their workplaces and beyond,” said Grant. Samaritans (0800 726 666). If you or someone else are Want to know more? in immediate danger, call 111. Grant will be speaking at the ILANZ Conference in Dunedin on 9 – 10 May
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PRACTISING WELL Proactive rather than reactive Reading the signs and acting on them
BY ANGHARAD O’FLYNN
An accomplished journalist, lawyer, law lecturer and author, Jerome Doraisamy also has first-hand expe- rience with something many lawyers and law students are familiar with: mental illness. A high pressure, highly competitive and sometimes high-profile profession, the pressures of being a lawyer, and studying law, can sometimes lead to mental collapse. Burnout is brought on by work pressures and toxic studying or workplace environments. It commonly manifests in two particular forms of mental illness, depression and anxiety. “I studied law because I got the marks for it. Over time, I determined a career in law to be a great way to serve the community around me,” Jerome says of his choice to go into the profession. moderate or high stress as a problem in their workplace. While studying a double degree in law and communi- “There are numerous factors that have a cumulative cations at Sydney’s University of Technology, his mental and negative impact upon the health and wellbeing of illness came to a head during a music festival. What law students,” says Jerome. should have been a fun weekend with friends celebrat- “These factors include increased levels of competi- ing the end of exams, instead started an 18-month cycle tiveness, perfectionism and pessimism among the law of crippling anxiety and depression; a breakdown so student population, voluminous workload, self-medi- severe it led to a period of self-admitted hospitalisation. cation with alcohol and disordered eating patterns.” “The signs of burnout, fatigue, elevated stress and Standing alone, these factors may not necessarily anxiety would certainly have been there, but they went give rise to health issues. But when students and junior unnoticed both by myself and those around me,” says lawyers are exposed to multiple or all of these factors, it Mr Doraisamy. can be hugely detrimental to their mental and physical “Had they been identified, it’s possible I could have wellbeing. avoided the breakdown I suffered, or at least I could “These problems exist in every law school in every have mitigated the severity of my ill-health.” country,” he says. “They are not unique to any national culture. A toxic culture normalised “It makes me incredibly angry, really, because I would Testing the emotional, mental and physical limits never want any law student to experience what I did. is common in both law school and in practice. The Anxiety and depression can be so debilitating and Pemberton Report revealed that 70% of young law- crippling, and no one should ever have to experience yers in Aotearoa who participated in the survey cited such trauma.”
67 Recovering and restarting Major impact factors After nearly two years of working Throughout his research for the book, Jerome noticed toward his recovery, Jerome began that the competitive atmosphere surrounding grades working again. He became a lecturer in both high school and university greatly encourage and journalist – contributing to completeness and this can carry over into their profes- the Australian legal media website sional performance. Lawyers Weekly. One ‘low grade’, for any subject, can be considered a Teaching at the same university he blemish and grade-based rejections can have deleterious attended, the University of Technology effects upon a student’s wellbeing and sense of self-worth. in Sydney, Jerome observed the toxic What’s worse is that there is no consistent established cycles he fell victim to occurring in standard and firms and universities can apply a subjective many of his students. view as to what is considered a ‘low grade’. “I decided to write The Wellness “It makes me “If their grades are not ‘up to scratch’, so to speak, they Doctrines because I saw the same incredibly will feel like their vocational prospects are diminished. issues, signs and symptoms I suffered angry, really, This, of course, ignores the fact that there is so much manifesting in other law students because I that one can do with a law degree, as it adds such a and young lawyers coming through would never broader perspective on other professional industries, the ranks. I decided to do something want any law from communications to business. positive and productive to help others student to “Another part of the problem exacerbating the turmoil avoid going through what I did.” experience students may experience here is that there are so many The Wellness Doctrines for Law what I did job opportunities with the law firms that students apply Students and Young Lawyers provides [...] no one to, creating a bottleneck, and if one does not get an offer, guidance on managing stress and the should ever they will feel unworthy,” says Jerome. pressures of law school, and those have to Firms may also fail to consider the more holistic offer- challenging first few years as a junior experience ings young people can bring to the table. Extracurricular lawyer in the legal profession.* such trauma.” activities, general knowledge, multi-lingual abilities, social
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rain, as it’s not going to ease the downpour. Focus your attention only on those things over which you have direct influence. What can firms do? Mr Doraisamy has taken his per- sonal experiences to law firms and universities in Australia. The core theme of his advocacy at these talks is proactive, individual responsibility. “When I go into law firms and universities, I argue that lawyers and law students must be proactive, rather than reactive, about looking after their health and wellbeing by way of figuring out what solutions and strategies will work best for them and implement those things as non-negotiable aspects of the daily or weekly schedule. “Every person is unique and responds differently to external stimuli, and thus what works for me may not necessarily work for you. As such, it’s incumbent upon all of us to figure out what will be skills and even just a sense of humour and great communication skills are best for us. great attributes. An A+ average won’t mean much if the knowledge cannot “If you want to be the best lawyer be communicated. you can possibly be, you first need to ensure that you are looking after Reduce the chances of becoming mentally unwell yourself, because unless one is taking A simple phrase, but identifying the signs of depression in both yourself, a holistic approach to their personal and others, and knowing how to ask for help are incredibly important to and professional lives, they’ll run the keep a sense of wellbeing. risk of burnout. Law firms need to A chapter within Jerome’s book addresses legal idiosyncrasies and one say that they are looking for lawyers particular issue is entitled “Learn to be okay with not being number one”, who tick those boxes.” ▪ a concept many A-type personalities in the legal profession struggle with. Jerome suggests how to accept the fact that not everyone can be top dog. Jerome’s books (he has also written “Being kind to one’s self, or being self-compassionate, is, of course, easier The Wellness Doctrines for High said than done. But there are a number of things one can do or practise in School Students) are available from order to ensure that you are not giving yourself too hard a time.” the Book Depository and on his own Jerome has some recommendations: website, thewellnessdoctrines.com • Allow yourself days in the week where you can do something completely indulgent, such as a Netflix binge or eating glutinous food. It also means * As well as the guidance, 10% switching off from study at certain hours of the day rather than flogging of the proceeds or each book one’s self. sold goes to the Minds Count • Seeing the bigger picture. If you get a bad mark in your criminal law exam, Foundation (formerly the Tristan it doesn’t mean that you’re a failure of a law student, it simply means Jepson Memorial Foundation) you got a bad mark in one assessment, in one subject. Don’t conflate which works to decrease the inci- issues unnecessarily. dence of depression and anxiety • Focus on what you can control, not what you can’t. One cannot influ- among youth through reducing ence the weather, and so it serves no purpose to get wound up by the the stigma around mental health.
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positive change, which aligns with our priority of culture PRACTICE change in the legal profession.” Signing up to the Charter is the first step. Signatories commit to: • Lead from the top, • Make a plan and take action, The Gender • Measure progress. The specific commitments – which are both impact- ful and achievable – include tackling unconscious Equality Charter bias, encouraging flexible working, closing any gender pay gap and promoting equitable instructions. Signatories agree to meet these commitments over What role can a two year period and report on progress in doing so to the Law Society. the In-house legal The Law Society wants to support the profession in making the decision to sign up to, and meet the commit- community play? ments of, the Charter – by providing free and practical online tools and resources, sharing success stories and checking in regularly with signatories. By way of BY CAROLINE practical example, signatories can conduct unconscious SIGLEY bias training using the free NZLS CLE Ltd webinar or by undertaking training their organisation already offers (or plans to offer) to its staff. Diversity is being asked to the party. Why “just” gender? Inclusion is being asked to dance. Gender inequality has been a long standing and visible – Verna Myers problem in the workplace. As such the Law Society decided to start with gender inequality but, while the In April 2018, the New Zealand Law Society Charter focuses on women in the legal profession, the launched its Gender Equality Charter (Tūtohinga Ira Charter commitments are relevant to other aspects of Tangata Ōrite). The Charter is a set of commitments diversity and there is no reason why signatories cannot around gender equality aimed at improving the retention apply the principles of the Charter to addressing ine- and advancement of women in the legal profession. quality and encouraging diversity more broadly. Indeed, To date 115 workplaces (including law firms, barristers, commitments under the Charter such as unconscious in-house teams and sole legal counsel), which cover over bias training are expected to address diversity in a much 2,900 lawyers practising in New Zealand, have signed wider sense. up to the Charter – this represents over 20% of the legal profession. The Law Society is aiming to get 30% of the Is the Charter relevant to legal profession signed up to the Charter by this month in-house legal teams? – being the one year anniversary of the Charter’s launch. The Charter was designed by the Women’s Advisory Panel A list of signatories to the Charter – who themselves have wide representation – to be as can be found on the Law Society inclusive as possible and to be equally applicable to all website under Law Society Services/ legal professionals. As such, the Charter is open to the Women in the Legal Profession. whole legal profession and the principles in the Charter Earlier this year, Law Society are equally relevant to in-house lawyers as they are to President, Kathryn Beck said: “109 law firms, sole practitioners and barristers. Furthermore, signatories is a strong result to start the Charter is of benefit not only to teams where they see the year with, but we really want to “The Charter inequality and inclusion needs to be addressed but equally see the numbers grow significantly. is not about for teams who feel they comply with all of the principles It’s about creating a transparent compliance of the Charter as in signing up they show their support for culture in your workplace, where all but about gender equality and inclusion, their openness to continued lawyers, regardless of gender, feel being part of improvement and their comfort in being held to account. valued and are provided with equal a movement To date 14 in-house legal teams have signed up to the opportunity to grow professionally.” for positive Charter. Auckland Council, Crown Law, Treasury, Contact The Charter aims to bring about change, which Energy and Fonterra led the way as some of the first culture change in the legal profession. aligns with in-house teams to sign up to the Charter. Of the in-house Fazleen Ismail, General Manager, Law our priority of signatories, a large proportion of them are government Reform at the Law Society says: “The culture change legal teams with only a couple of corporates having Charter is not about compliance but in the legal signed up. It is hoped that we will see more corporate about being part of a movement for profession.” in-house legal teams becoming signatories.
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Fonterra is one of the Charter’s corporate signatories. way – so that the diversity has an impact. I believe Andrew Cordner, Director of Legal at Fonterra, says: as an instructing counsel I have the responsibility “Fonterra was an early adopter of the Law Society and to influence the growth of an inclusive and diverse the Bar Association’s Gender Equitable Engagement and profession.” Instruction Policy and it felt natural for our legal team to take the next step, in line with Fonterra’s broader Wider application of the Charter principles commitment to gender equity, and sign up to the Charter In-house legal teams can play a role in applying the requirements.” wider principles of the Charter to other teams in their The fact that your corporate has existing programmes workplaces or right across the business the in-house around diversity should not prevent corporates signing up. legal team supports. As set out in the Charter guidelines, “The Charter’s principles align with Fonterra’s focus Charter signatories may wish to, for example, conduct and approach to diversity and inclusion, are consist- gender pay audits and encourage and support flexible ent with Fonterra’s thinking around sustainability in working for all employees, not just lawyers. The Law a broader sense, and reflects our core corporate value Society has seen at least one in-house legal team who of Do What’s Right. In meeting some of the Charter intended that the Charter guidelines would be applied commitments (such as unconscious bias training), right across their workplace. Andrew Cordner said his the Fonterra legal team will look to take advantage of legal team have also shared the actions they have taken internal corporate programmes and resources in this in furthering gender diversity with the wider business space” says Mr Cordner. unit the legal team sits within (including the adoption of the principles of the Charter and engagement with The wider role in-house their external law firms on these issues). He also noted legal teams can play that the team applies the principles of the Charter in a In-house legal teams, by signing up to and supporting wider sense – for example, ensuring diversity of gender the Charter, play a vital role in leading culture change in external speaking panels. in the area of gender (and wider) equality and inclusion, including by: Sharing ways of being In-house lawyers have always generally tended to have In-house lawyers as signatories a better work/life balance and more widely embrace In-house lawyers now make up almost a quarter of the flexible working than law firms. They also attract and legal profession and so must be part of the body of seem to retain female lawyers – with around 62% of signatories if significant numbers of lawyers are going in-house lawyers being female. In-house legal teams to be covered by the Charter. can encourage, support and show firms how to work towards achieving balance and flexibility as the pro- Encouraging others fession works toward a place where for all legal teams In-house lawyers and teams can play a role in encour- and organisations balance for all lawyers becomes the aging law firms, barristers and other in-house legal norm rather than the point of difference. Catherine teams to sign up to the Charter. In-house lawyers can Thompson says: “Regarding the Charter commitments ask the question of firms or barristers they instruct as around encouraging flexible working, our legal team to whether they intend to sign up to the Charter (and and the wider business already embrace flexibility. It is if not, why not) or how they are tracking with meeting well established that flexible working options are key to their commitments under the Charter. Being a signatory improving inclusion and diversity but there is no ‘one to the Charter could become part of the selection criteria size fits all’ approach to flexibility”. for briefing law firms and barristers or selecting legal For the Charter to embody change, the momentum of panel participants. legal workplaces signing up for genuine reasons needs to continue so that the Charter covers as much of the Equitable briefing legal profession – both private practice and in-house – as In-house teams can themselves apply the equitable possible in order to assist in bringing about real and instructions principles of the Charter in selecting sustainable change with a view to achieving true gender the law firms or barristers chambers they brief and equality in the legal community. It is clear that in-house paying attention to what lawyers and barristers lawyers can play a valuable role in driving culture change within such firms/chambers they instruct are doing in this area. ILANZ applauds those in-house teams who the work. Equitable briefing principles can be applied have already signed up to the Charter and encourages to all areas of law and not only to New Zealand firms/ others to do the same. ▪ chambers briefed but also to those briefed outside of New Zealand. Catherine Thompson, General Manager, Caroline Sigley [email protected] is Senior External Relations and General Counsel at Contact Legal Counsel for Bayer and an ILANZ committee member says: “When I am thinking about seeking external support or recruiting I am deliberate in my consid- If you would like any further information on the Charter and eration of a diverse team and then look at how to the process for signing up please refer to the Law Society ensure the work will be carried out in an inclusive website or email [email protected].
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PRACTICE local Bars in the four main centres – so there were four appointees from Wellington and two each from Auckland, Christchurch and Dunedin. He was at pains to point out that Wellington had four because it was the centre of A rare several judicial districts and also the city of the Court of Appeal which sat there three times a year. honour Is location still important? Definitely. However, it’s also important to look at the dis- tribution of the pool of potential QCs. Currently, Auckland Queen’s Counsel has 51% of New Zealand’s barristers sole, followed by Wellington (14%), Christchurch (9%), Hamilton (4%), in New Zealand Dunedin (3%) and Tauranga (3%). Auckland has certainly outstripped the other centres since 1908, but it has the most barristers by far. BY GEOFF Five Australians have been appointed QC in New ADLAM Zealand. Three – all from Melbourne – were appointed in 1994 under a reciprocal admission agreement.
Location on appointment Over 35,000 people have been admitted Location Number as lawyers in New Zealand since the begin- Auckland 138 ning of the 20th century. In that time just Wellington 105 317 members of the profession have been Christchurch 31 appointed Queen’s Counsel. It’s a rare honour. Dunedin 13 The profession has just completed a Hamilton 9 round of ceremonies in which 10 new Palmerston North 5 QCs were called to the inner bar after the Melbourne 4 announcement of their appointments in New Plymouth 3 late November. Let’s not bother about the history of the Napier, Tauranga, Whanganui 2 title in the United Kingdom. In this coun- Invercargill, Rotorua, Sydney 1 try, the first appointments were made on 7 June 1907. Late in 1906 the government announced that the “Home Government” Queen’s and King’s Counsel had empowered the Governor of New This could possibly be the only honour where the title Zealand to confer the title of King’s Counsel. changes according to the gender of the monarch. “Queen’s There was the usual vigorous debate in news- Counsel” has been conferred on 274 people, with 43 (all papers. While commenting that the new KCs male) having been appointed King’s Counsel. It appears would “no doubt get the principal share of that when the gender of the monarch changes the protocol the Government business in the Courts”, is for an immediate change for every official reference – so the Press then noted that “[a] gentleman new business cards all round some time in the future… well-known in legal circles remarked that the positions of barristers and solicitors in Once were Senior Counsel… this colony not being separated, the spec- In New Zealand, of course, we decided to rename the tacle might be witnessed of an exceedingly Late in 1906 the role “Senior Counsel” in 2006, with the last (at the time) eminent KC appearing in the Police Court government Queen’s Counsel appointments being made in 2007. to defend a battered derelict charged with announced The Lawyers and Conveyancers Act (Lawyers: Senior drunkenness and riotous behaviour, or some- that the “Home Counsel and Queen’s Counsel) Regulations 2008 then thing else equally sordid and plebian.” (Press, Government” came into effect and on 1 October 2008, seven Senior 12 December 1906). We’ll get back to this… had Counsel were appointed (who have since taken the title Six months later the appointments empowered Queen’s Counsel). The new honour was available to of 10 King’s Counsel were announced. the Governor non-barristers. In June 2009 reinstatement of the title The appointees had been nominated by of New Zealand Queen’s Counsel was announced, but it was another Chief Justice Sir Robert Stout from a list to confer the three years before the Lawyers and Conveyancers Act of applicants. Stout CJ decided that the title of King’s (Lawyers: Queen’s Counsel) Regulations 2012 came into appointments needed to recognise the Counsel. force on 1 February 2013.
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Appointment rounds (and 9.2% of barristers sole) holding the After the excitement of 10 appointments in 1907, it was two months short rank of Queen’s Counsel, it is clear that the of a century before there were more appointees at any one time. On 14 May honour is hard-earned. Since the round of 2007, 12 barristers were appointed Queen’s Counsel. The most appointed appointments in 1980, the average time in at any time were 26 in the great “catch-up” round of 2013. Although then practice before appointment has been 26.7 Attorney-General Christopher Finlayson and Solicitor-General Michael years. Women appointed Queen’s Counsel Heron had been appointed QC on 10 December 2012, it had been five years have been in practice for an average of 24.6 since an applicant-driven appointment round had occurred. More QCs years and men for an average of 27.1 years. have been appointed than the 10 in 2018 on just five occasions. In the Of course, “Queen’s Counsel” recognises six years since appointments resumed in December 2012, 80 QCs (25% excellence at the Bar, and the guidelines of the total) have been appointed. for appointment note that only barristers sole may be appointed QC. At 1 February Most appointments at one time Gender 2019, of New Zealand’s 1,417 barristers Date Appointees The first women appointed sole, 564 (40%) were women. If the 16 May 2013 26 Queen’s Counsel were Dame Sian average time in legal practice before QC Elias and Dame Lowell Goddard, appointment is considered, there were 4 June 2014 14 on 4 March 1988. It was a further 703 barristers at 1 February 2019 who had 2 June 2017 13 seven years – and 34 men – until been in practice for more than the average 14 May 2007 12 another woman attained the rank, time of appointment (and 131 of these are 7 June 2016 12 with the appointment of Judith already Queen’s Counsel). Just 198 of the 7 June 1907 10 Ablett-Kerr on 20 April 1995. Since barristers in practice for more than 24.6 1988 there have been 204 Queen’s years were women. 28 Nov 2018 10 Counsel appointed, of whom The mark for the most years in practice 39 (19.1%) have been women. before appointment appears to have been Overall, 12.3% of all Queen’s/King’s Counsel appointees since 1907 set in 2017, with the special appointment have been women. of Victoria University law professor Tony The 2018 round was highest for the proportion of women appointees, Angelo. Professor Angelo QC was admitted with five (50% of total). Four women were appointed in 2016, 2014 and 2013. in 1965, 52 years before his appointment. The Crown Law Office has kindly provided details of the gender of Data on time in practice is held for applicants since 2002. The information relates to appointment rounds three-quarters of all QCs appointed. From and therefore does not include the appointments of Chris Finlayson QC this group, the shortest time in practice and Michael Heron QC in December 2012. before appointment was 12 years and 4 months, for Dunedin’s Judith Ablett-Kerr Applications since 2002 QC (appointed on 20 April 1995). New Zealand’s longest-serving Queen’s Counsel still in legal practice is Robert Fisher QC, who was appointed on 1 August
Year Female applicants Female appointees Male applicants Male appointees Total applicants Total appointees 1985. He is followed by James Farmer QC 2002-2008 67 10 562 32 629 42 (appointed on 8 May 1986), Alan Galbraith 2013 16 4 100 22 116 26 QC (appointed 6 April 1987) and Nigel Hampton QC (appointed 17 May 1989). 2014 21 4 76 10 97 14 Sir Ian Barker QC was appointed in 1973. 2015 19 1 66 2 85 3 After an illustrious career at the Bar and 2016 17 4 58 8 75 12 then on the bench, he now practises as an 2017 17 3 56 10 73 13 arbitrator and mediator from Auckland’s 2018 21 5 69 5 90 10 Bankside Chambers. Total 178 31 918 84 1165 120 Attorneys-General and Solicitors-General This shows that women have had a higher success rate over the last 13 The appointment process starts with the appointment rounds, with 17.4% of their applications successful, com- Solicitor-General consulting the New pared with a 9.2% success rate for men and 10.3% for all QCs. Women Zealand Law Society and New Zealand have made 15.3% of the applications over the time and achieved 25.8% Bar Association on the applicants and then of appointments. giving their views to the Attorney and Chief Justice who then confer. The Attorney- Time to attain the rank General is responsible for recommending At the moment, 131 QCs hold practising certificates (of whom 28 – 21.4% the appointment of QCs to the Governor- – are women). With about 0.9% of New Zealand’s practising lawyers General, who makes appointments under
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the Royal prerogative. Seven of our 10 Solicitor-General Una Jagose was one Chief Justices Time as QC of those appointed in the 2016 round. since 1907 have The QC rank is held for life. Former Chief Justice Sir Ronald Since the first KC appointments in 1907 been King’s Davison was appointed QC on 16 June 1963 and died on there have been 14 Solicitors-General or Queen’s 2 July 2015, 52 years after his appointment. and all have been appointed KC or QC. Counsel and The shortest tenure appears to be that of Christchurch The only Solicitor-General missing since six QCs have barrister Thomas Joynt KC who was in the first group of New Zealand started appointing Queen’s become KCs appointed on 7 June 1907. He died just under three Counsel is Frederick Fitchett, who was President of months later, on 5 September 1907. Solicitor-General in 1907, but did not the Court of The shortest time between being appointed to the rank receive the rank. Appeal. and becoming a judge is the split second between the Seven Attorneys-General have become appointment of Sir Henry Ostler KC as a King’s Counsel Queen’s Counsel – although Sir Thomas and then a Judge of the Supreme (now High) Court on 2 Webb was appointed six days before leav- February 1925. Sir Henry had accepted an offer of appoint- ing office in 1954 and Sir Geoffrey Palmer ment to the Supreme Court bench in 1924 on condition (originally SC) was appointed to the rank that he would not be expected to start until 1925 and that in 2008, well after he had left Parliament. he would first be appointed King’s Counsel. Since 1907, 26 different people have acted as Attorney-General. Most have been Barristers’ Chambers with members of the legal profession but it’s most Queen’s Counsel certainly not an automatic transition to QC. This is believed to be Shortland Chambers in Auckland, with 19 Queen’s Counsel among its 33 full members Judicial QCs (and another four QCs as associate members). Bankside Of the 317 King’s or Queen’s Counsel Chambers has 16 QCs among its 33 full members (plus appointed in New Zealand, 106 have gone another seven QCs as associate members). on to become members of the judiciary. Seven of our 10 Chief Justices since 1907 Appearances by QCs have been King’s or Queen’s Counsel and The sky didn’t fall as prophesied by the legal gentleman in six QCs have become President of the the Press in 1906. With an average of 90 applications per Court of Appeal. round, it’s clear the honour is seen as worth having. QCs are At the moment, there are 23 QCs serv- involved in a relatively high proportion of proceedings in ing on the bench. the higher courts. Law Society Wellington Librarian Robin Anderson has analysed proceedings in New Zealand’s Family connections senior courts from 2015 up to 12 March 2019. He has found Three generations of the Cooke family that, over that period, 30.4% of proceedings in the Supreme have attained the rank: Justice Philip Court had at least one QC representing a party, with at Cooke KC (appointed 28 January 1936), least one QC in 18.7% of Court of Appeal proceedings and Sir Robin (Lord) Cooke QC (appointed 25 at least one in 12.1% of High Court proceedings. May 1964) and Justice Francis Cooke QC (appointed 27 July 2004). All three Cookes And back to where it all started became QCs relatively early in their career, Apart from the Queen’s homeland, the rank of Queen’s Counsel taking an average of just over 15 years from has had a stop/start history in several other Commonwealth admission to appointment. countries, including our own. England and Wales has an There are several instances of two gen- annual “competition” for those who want to become Queen’s erations, including: Sir Richard Wild CJ Counsel. It has its own website and around 100 or so new (appointed 11 September 1957) and his son Queen’s Counsel emerge each year (108 in 2018, 119 in 2017, John (appointed 26 May 1993); High Court and 113 in 2016/17). Of the new appointments in 2018, 30 were Judge Lance Tompkins (appointed QC 13 women (27.8%). In 2017, 32 women were appointed (26.9%). May 1958) and his son Sir David Tompkins The 2018 round attracted 240 applications, down 32 on the (appointed in 1974); Sir Ronald Davison CJ previous year. In 2018, 54.5% of female and 41.9% of male (appointed 16 June 1963) and his son Paul applicants were successful. Information on LGBT+ applicants (appointed QC 27 May 1996); High Court is also provided, with nine people in that category applying Judge Sir John White (appointed QC on in 2018 and four successful. There were 30 “ethnic minority” 14 March 1966) and his son, former Court applicants, of whom 13 were successful. of Appeal Judge Sir Douglas (now Law The Bar Standards Board which regulates the 16,598 Commission President; appointed 4 March barristers says QCs generally have a minimum of 15 years’ 1988); and Sir Geoffrey Palmer (appointed 1 practice before attaining the honour. It says there were October 2008) and his son Matthew (now a 1,695 self-employed QCs in 2018, of whom 83% were male, High Court Judge; appointed 4 June 2014). 16% female and 1% preferred not to say. ▪
74 LAWTALK 927 · April 2019 FUTURE OF LAW
FUTURE OF LAW Taking law and technology teaching to all students
BY LYNDA HAGEN
and society forward in the modern, journal articles, reports and other Undergraduate teaching of law technology-driven era. material available to anyone. and practice around new information The legal technology project came Adapting legal practice to the technologies may become main- about through the New Zealand Law challenges of technology is a streamed due to a major new Law Foundation’s Information Law and hot topic internationally. A 2016 Foundation-funded research project. Policy Project (ILAPP). ILAPP sup- Deloitte (UK) report, Developing legal The $332,000 Technology in Legal ports several law and technology talent – stepping into the future law Education project intends to create research studies in areas like digital/ firm, argues that fewer traditional an online toolkit enabling law lec- crypto currencies, driverless cars, lawyers will be needed as technol- turers to integrate legal technology artificial intelligence, online courts, ogy adoption increases, although subjects within core curriculum smart contracts and the regulation more roles will be required in the papers. This could allow second of new technology. This project transient talent pool. It says tradi- and third-year law students to study will be the last major ILAPP initi- tional lawyers must also be able to emerging areas like artificial intelli- ative before the Foundation brings understand data, deal with complex gence, digitisation of courts, and the ILAPP’s work to a close this year. technology and manage risk in use of audio-visual technologies to The Law Foundation has worked addition to utilising their traditional interview clients and cross-examine hard with the law faculties and knowledge and technical skills. witnesses, among other things. Professor Rumbles on developing Other overseas examples of law Project leader, University of this project. The Technology in and technology teaching include a Waikato Law School Dean Wayne Legal Education project is among compulsory paper on digital law- Rumbles, says the project, backed by the most important the Foundation yering at the University of Cumbria all six law schools, aims to ensure all has funded in its 26-year history for in northern England, which covers law students – not just those with a the profession. the use of audio-visual technol- specialty interest – get a grounding ogy, online dispute resolution and in information technology law. Preparing the next practice management software. “A number of law faculties generation A new law school opening in already have specialist papers. Our This project will create valuable Toronto is considering integrating aim is to include this more broadly opportunities to build capability for technology throughout the degree, within the curriculum, because the future of law in New Zealand. If including running “boot camps” on otherwise the only students stud- we get this right, the next genera- programme coding for lawyers. ying it are those who are focused tion of New Zealand law graduates Professor Rumbles and his Waikato on technology,” he says. will be much better prepared for a University-based team will draw on “Every student needs to engage in workplace that is increasingly being the approaches taken in the US, UK technology; that’s where government, taken over by new information and parts of Asia. He says restrictions business, law firms and the judiciary technologies. on varying the scope of the New are going. It’s no longer a specialist The online toolkit, or portal, will Zealand law degree prevents adop- area. It’s part of everyday life.” allow law schools to choose how they tion here of a common US model of The two-year project, which gets integrate technology into the curric- technology-related teaching, which under way this month, will engage ulum. In criminal law, for example, is effectively a different degree from with practitioners and the judiciary there could be teaching on the use the mainstream practice degree. to examine the use of technology, of technology in evidence gathering “The other option is elective as well as to help expand the skills or dispute resolution. Lawyers and papers, but they are only taken and knowledge base needed by the teachers will be able to access the by students who are already well- legal system to propel the economy portal, and a public section will make versed in technology,” he says. “The
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ensure that our students are think- ing about modern day problems and seeing that the law remains relevant and important,” she says. Another strong supporter is the UK law and technology expert Lord Thomas of Cwmgiedd, a former Lord Chief Justice of England and Wales. Lord Thomas will deliver a lecture series in New Zealand later this year under the Law Foundation’s Distinguished Visitor Fellowship programme. He says the project would put New Zealand law schools at the forefront of common law worldwide and bring considerable benefit to the future of the profession. “I have no doubt that it is now necessary to provide students studying law with skills in digital technology,” he says. “It is recognised by many who think about what is necessary for practice of the law in the coming decade that students must be taught the skills necessary not only for them to deal with the way business LLB course is currently prescribed often at the forefront of technological and day-to-day life is rapidly adopt- by the Council of Legal Education change … in order for the curriculum ing digital technology, but also the – we can’t change that, but we will to remain relevant to future genera- way such technology is changing produce a complementary toolkit. tions of lawyers, it is important that the practice of law.” People can take content from that legal education engages with these The New Zealand Law Society and adapt it for use throughout the advances in technology.” also backs the project, describing existing curriculum.” Mark Hickford, Law Dean of the future of law and technology as The project was preceded by a Victoria University of Wellington, a priority area. Outgoing President scoping study that reviewed inter- says: “By taking a collaborative, Kathryn Beck praises the project’s national expertise and practice in planned approach to ensuring inclusion of all law schools. legal technology education. Wayne new technology is appropriately “We know we need to prepare Rumbles says the project will work reflected in legal education, we can the profession for the technological initially on five compulsory subjects better equip our graduates to deal changes that are already impacting taught in all law schools – contract with some of today’s most complex on the practice of law. I note that law, criminal law, land law, public and pressing legal issues.” one of the aims of the project is to law and the law of torts. It will refine And University of Canterbury ensure that law schools are giving and share IT content that is already Law Dean Ursula Cheer says of the students the skills and critical being taught. project: “It will generate significant thinking they need to practise law The project team will be led from information and resources for New in an increasingly technologically Waikato by Professor Rumbles, a Zealand law schools to use to ensure dependent environment. This will specialist on law and information the teaching of law produces grad- be vital if the legal profession is to technology. There will be input uates who are future work-ready, keep pace with societal changes in from the other law schools, which adaptable and resilient.” this area.” ▪ strongly support the project. University of Otago Law Dean Jessica Palmer says the project will For further information on this pro- Input from all law schools provide a boost to all New Zealand’s ject and others funded under the University of Auckland Acting Law law schools and their students. “This Law Foundation ILAPP work pro- Dean Warren Swain says legal edu- project is an effective way for the gramme, visit the Information Law cation needs work in tandem with six law schools to share ideas and and Policy Project tab on our web- technological advances. “Lawyers are reflect on our own curricula to site: www.lawfoundation.org.nz
76 LAWTALK 927 · April 2019 LAWYERS COMPLAINTS SERVICE
LAWYERS COMPLAINTS SERVICE
Complaints resolution summaries
Independent her parents were independently advised Claiming lien by their accountant, “a trusted profes- legal advice sional, familiar with trust and estate over passports planning”. was needed However, the committee considered that unsatisfactory in the absence of independent legal advice, [Names used in this summary are fictitious] Lightwood had not discharged the onerous conduct burden of showing that her parents were A lawyer, Lightwood, who drafted a trust fully informed of the effects of the trust and [Names used in this summary are fictitious] deed under which she was a beneficiary that she had therefore breached rule 5.4. should have required her parents to take In the committee’s view it was unlikely If a lawyer is prohibited from retaining independent legal advice, a lawyers stand- that without independent legal advice the passport of a New Zealand citizen on ards committee has said. Lightwood’s parents would have under- the basis of an unpaid fee, a foreign client Lightwood’s parents established a trust stood the effect that the trust had on should be treated no differently. to protect the proceeds of the intended sale Lightwood’s position. This was stated by a lawyers standards of a property they owned. Rule 5.10 states that: “a lawyer must not committee when considering an own Lightwood prepared the trust deed. draft or assist in drafting a provision of motion investigation into a lawyer, Orlick, Lightwood, one of her parents and an a will or other instrument under which who claimed a lien over his client’s pass- accountancy firm’s trustee company were the lawyer may take a benefit other than ports and the passports of his children. appointed as trustees. Lightwood, her par- a benefit normally attached to acting The matter arose when the standards ents and Lightwood’s siblings were named in a professional capacity in respect of committee was considering a complaint as discretionary beneficiaries. the will or instrument unless before the made by a former client of Orlick. Lightwood’s mother subsequently com- execution of the will or instrument, the The client had engaged Orlick to work plained to the Law Society that Lightwood person concerned has taken independent on immigration matters. During the course had a conflict of interest in relation to the legal advice”. of the work, the client provided Orlick trust, because she had prepared a trust deed Although Lightwood had breached with his passport and the passports of from which she derived a direct benefit. both rules, the committee considered his children. The committee considered that the breaches were neither wilful nor When the client failed to settle Orlick’s Lightwood had breached rules 5.4 and reckless. Lightwood had expected that fees, Orlick claimed a lien over the client’s 5.10 of the Lawyers and Conveyancers the advice her parents had received from file, including the passports. Act (Lawyers: Conduct and Client Care) their accountant would have been suffi- The standards committee noted at the Rules 2008. cient to allow her to proceed. Because the outset that the Passports Act 1992 prohibits Rule 5.4 states that “a lawyer must not act breaches were “minor” and there was no liens over New Zealand passports. or continue to act if there is a conflict or a issue of public protection, the committee The committee began by examining the risk of a conflict between the interest of the determined the breaches did not amount law relating to liens over foreign passports lawyer and the interests of a client for whom to unsatisfactory conduct. ▪ and was satisfied there was no clear legal the lawyer is acting or proposing to act”. With reference to Ethics, Professional Responsibility and the Lawyer (3rd ed, LexisNexis, Wellington, 2016) by Duncan Webb, Kathryn Dalziel and Kerry Cook, the GRAEME COLGAN committee noted that where a lawyer with a LLB(HONS), AAMINZ conflicting interest wishes to act for a client “the obligation [on the lawyer] to disclose Barrister and Employment Law Specialist fully the interest held is onerous”. The lawyer Employment Mediations and Arbitrations · Opinions must “show that the transaction was at arm’s Pleadings · Independent Workplace Investigations length and the client was fully informed”. [email protected] | 021 926 524 | www.graemecolgan.co.nz Lightwood submitted that while no independent legal advice was provided,
77 LAWYERS COMPLAINTS SERVICE April 2019 · LAWTALK 927
authority in New Zealand addressing the In holding the passports, Orlick had principal of the loan on settlement. She also issue. affected the rights of his client and his relied on the personal declarations that Orlick submitted that in the absence of client’s children. “That is unacceptable Mr Spenlow and Ms Steerforth had given specific legal authority prohibiting liens conduct,” the LCRO said. the bank that “the amount withdrawn will over foreign passports, solicitors were The LCRO considered it was important be applied solely towards paying the pur- entitled to assert such liens. He contended that the legal profession and the public chase price of the property as settlement”. that Parliament expressly omitted foreign be made aware of the issue addressed in However, there was no evidence that the passports from the Passports Act 1992 as this case. ▪ funds had, in fact, been used to reduce the it intended to allow liens over foreign mortgage advance. passports. The committee considered the wording The committee said it did not accept of the undertaking given to the KiwiSaver Orlick’s interpretation. It considered the KiwiSaver funds scheme manager was “clear and unam- lack of relevant law in New Zealand did not biguous – the funds withdrawn had to be amount to an endorsement of the practice paid to clients applied to or as instructed by the vendor Orlick had adopted in this case. as part of the purchase price”. “It is unlikely that this right to assert [Names used in this summary are fictitious] “The purpose of the undertaking is to a lien over a client’s file would extend to ensure that the KiwiSaver provider com- documents which do not belong to a client, A lawyer who paid KiwiSaver funds plied with the terms of its scheme,” the such as a passport, which arguably remains directly to her clients, despite giving an committee said. the property of the country of issue.” undertaking that they would be used as “The KiwiSaver provider must be entitled In coming to this view, the committee part of a property purchase, was guilty of to rely upon a lawyer’s undertaking to noted the comments of the High Court unsatisfactory conduct, a lawyers stand- ensure that the requirements of the scheme in Vallant Hooker & Partners v Proceedings ards committee has found. are met. Otherwise it would undermine Commissioner [2001] 2 NZLR 357, where the The lawyer, Havisham, acted for Mr trust in the legal profession. court expressed doubts that a solicitor’s Spenlow and his partner, Ms Steerforth, “[Havisham] did not comply with the lien could be properly asserted over any on the purchase of a property. clear wording of the undertaking.” passport, as they are not the property A loan to purchase a property was The fact that the funds were kept in a of the client. The committee said it was approved conditionally based upon the separate ledger “made it clear that they satisfied “that it was inappropriate to treat KiwiSaver withdrawal. had not been applied towards the purchase the holder of a foreign passport as having Havisham gave an undertaking to a price at settlement”. subordinate rights to a New Zealand pass- KiwiSaver scheme manager that “any As well as making a determination of port holder with regards to liens”. funds received by me pursuant to the unsatisfactory conduct, the committee As well as holding the client’s passport, Application (the Funds) will be paid to or fined Havisham $2,000 and ordered her Orlick also held the passports of the client’s as instructed by the vendor as part of the to pay $1,000 costs. children “which was clearly inappropriate.” purchase price”. Havisham sought a review of the “The children’s passports were not the Subsequently, the bank waived the con- determination by the Legal Complaints property of his client and were not provided dition for the KiwiSaver funds requirement, Review Officer (LCRO). In LCRO 42/2018, to [Orlick] as security for his client’s fees.” and the lending was increased to allow the LCRO upheld the committee’s deter- The committee found unsatisfactory the purchase to proceed. The purpose minations and ordered Havisham to pay conduct by Orlick, censured him, fined of that arrangement was to ensure that $1,200 costs. In doing so, the LCRO stressed him $2,000 and ordered him to pay $1,000 the settlement proceeded even if the that there was no option for the degree of costs. KiwiSaver funds were not received in time flexibility with the KiwiSaver funds that On review, the Legal Complaints Review for settlement. resulted in the funds being paid into the Officer upheld the determinations of the Settlement was funded by a loan draw- client’s account. Havisham was required standards committee in LCRO 150/2016. down plus funds received from Mr Spenlow. to scrupulously adhere to the terms of the “In the circumstances where there was The KiwiSaver funds remained untouched undertaking. ▪ no clear legal authority, and when assess- in a separate KiwiSaver withdrawal ledger ing what lawyers of good standing would in the law firm’s trust account. find to be acceptable, or what constituted Five days after settlement, money was Allegations unprofessional conduct, it was reasonable paid to Mr Spenlow and Ms Steerforth from for the committee to take note of what the the KiwiSaver withdrawal ledger (less a not supported law in New Zealand provided, both by way sum deducted for fees and a small amount of statute and the (albeit obiter) comments transferred to a separate ledger for another by evidence made by the court. matter). “These are valid evidential sources of Havisham argued for a “global approach” [Names used in this summary are fictitious] what would be considered to be accept- and pointed the committee to an email able, and professional, conduct of lawyers from the mortgage broker, advising that Allegations that a lawyer failed to meet her in New Zealand,” the LCRO said. the clients would apply the balance to the discovery obligations were not supported
78 LAWTALK 927 · April 2019 LAWYERS COMPLAINTS SERVICE
by evidence on the balance of probabili- on submissions from her counsel as to is, at best, meagre and in most instances ties, the Legal Complaints Review Officer what advice she provided the company. non-existent. The Court would have been (LCRO) has found. “Mr [Tackleton]’s submission that the required to have drawn untenable infer- The lawyer, Corney, acted for a com- committee’s determination is ‘unreliable’ ences which it had been unprepared to do, pany in an employment dispute with a is puzzling, and is not accepted,” the LCRO given the high standard of proof required Ms Mantalini. said in LCRO 137/2016. to establish such serious allegations of Ms Mantalini complained that Corney The very matters the LCRO was consid- professional misconduct.” did not fulfil her professional obligations ering were before the Employment Court “It is disturbing,” the LCRO said, “that Ms regarding discovery. in a challenge to a determination of the [Mantalini] has brought the very same mat- A lawyers standards committee decided Employment Relations Authority. ters before the committee and now pursues to take no further action on the complaint. The following comments by the Chief this matter on review. The comments made The committee said it found that Corney Judge were “pertinent”: by the Chief Judge are clear and there is had liaised with the company regarding its “…the plaintiff ’s allegation that the no reason why those should not have been discovery obligations and ensured that the defendant’s solicitor has failed to discharge accepted as a definitive decision on the company understood and fulfilled those her disclosure obligations is not supported allegations. obligations. by the sort of evidence that the Court “However, Ms [Mantalini] has now Ms Mantalini’s lawyer, Mr Tackleton, would expect to have before it to establish caused [Corney] to incur further costs and sought an LCRO review of the decision such a serious allegation of professional expended the resources of the complaints on her behalf. misconduct …” and disciplinary process in continuing to Mr Tackleton submitted that the “…it is necessary to say something also pursue this matter.” committee made an error in making its about the serious allegations levelled by As well as confirming the committee’s determination to the point that the deter- the plaintiff and her lawyers against the decision, the LCRO ordered Ms Mantalini mination could not be relied upon. That defendant and, particularly, its solicitor. to pay costs to Corney in the amount of error was that Corney did not provide These are serious allegations of professional $500. ▪ any direct statement to the committee failure and misconduct. In spite of that, herself and instead the committee relied the evidence to support those allegations
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79 LEGAL INFORMATION April 2019 · LAWTALK 927
LEGAL INFORMATION Some recent procedures in New Zealand relating to criminal matters. In a foreword, Court of Appeal President Stephen Kós legal books says it is a text of real virtue and value, in an area that has long needed a comprehensive guidebook. Thomson Reuters New Zealand Ltd, 978-1-988552- BY GEOFF 58-0, March 2019, paperback and e-book, 968 pages, ADLAM $210 (excludes GST and postage).
Fitness to Plead: International and Corporate Law in New Zealand comparative perspectives EDITED BY SUSAN WATSON AND LYNNE TAYLOR EDITED BY RONNIE MACKAY AND WARREN BROOKBANKS The editors say they provide a comprehensive and crit- This collection of essays is ical analysis of legal prin- edited by Professors Ronnie ciples and rules governing Mackay from De Montfort New Zealand companies, University and Warren with a key focus being the Brookbanks from Auckland rules within the Companies University of Technology. Act 1993 regulating the With an introduction and rights, powers, duties and concluding essay by the obligations of companies editors, it has 12 essays and their directors, share- which cover the law relat- holders and creditors. The ing to fitness to plead in a text also addresses the number of jurisdictions. corporate form in its various contexts and how it is Professor Brookbanks’ utilised, including co-operatives, not for profits and iwi contribution is entitled “The Development of Unfitness enterprises. Divided into 11 parts, there are contributions to Stand Trial in New Zealand”. Other jurisdictions are from eight authors – seven academics and one barrister. England and Wales, Scotland, Canada, Australia, the The law is stated as at 31 October 2018. United States, the Netherlands and Italy, and another Thomson Reuters New Zealand Ltd, 978-1-988553- essay looks at fitness to stand trial under international 75-7, December 2018, paperback and e-book, 1382 criminal law. pages, $205 (excludes GST and postage). Oxford University Press, 978-0-198788-47-8, September 2018, hardcover, 368 pages, US$75 (excludes postage). Criminal Appeals and Reviews in New Zealand Heath and Whale Insolvency Law BY CHRISTOPHER CORNS AND DOUGLAS EWEN in New Zealand, 3rd edition BY PAUL HEATH AND MIKE WHALE This is a New Zealand version of a text on crim- This has been extracted from inal appeals in Victoria, the online publication Heath Australia of which Honorary and Whale on Insolvency Associate Law Professor and states the law as at 20 at La Trobe University July 2018. The objective is Christopher Corns is lead to cover legal and practical author. Professor Corns guidance on insolvency has written most of the and restructuring issues text and Wellington bar- commonly encountered in rister Douglas Ewen has New Zealand. Commentary contributed chapters on is contributed by 14 authors. judicial review in criminal cases and judicial review LexisNexis NZ Ltd, 978- procedure. The book is aimed at practitioners practising 0-947514-48-8, December in the trial and appellate jurisdictions. Its purpose is to 2018, paperback, 1078 pages, $200 (includes GST and describe and analyse all appeal and review rights and postage).
80 LAWTALK 927 · April 2019 LEGAL INFORMATION
Nevill’s Law of Trusts, Wills and regulatory regimes in areas Administration, 13th edition such as care and control of BY LINDSAY BREACH dogs, animals in agriculture and industry, animals in Dr Breach has produced the sport and entertainment 13th edition of a work which and animals in the wild. was first published in 1955. Other parts provide an over- The book aims to provide a view of the moral status of concise statement of the law animals, the development of relating to trusts, wills and animal welfare law in New estate administration. The Zealand and veterinary Trusts Bill is now at second law. The law is stated as at reading stage in Parliament 1 October 2018. and Dr Breach discusses Thomson Reuters New Zealand Ltd, 978-1-988553-72- the anticipated changes 6, December 2018, paperback and e-book, 961 pages, from this, but notes that $190 (excludes GST and postage). additional comment will be needed when it is enacted. The 21 chapters in the latest edition cover all aspects New Zealand Constitution: An of the law of trusts and wills. The law is stated as at 1 analysis in terms of principles September 2018. BY BRUCE HARRIS LexisNexis NZ Ltd, 978-0-947514-70-9, November 2018, paperback and e-book, 771 pages, $160 (includes University of Auckland GST, excludes postage). emeritus law professor Bruce Harris has set him- New Zealand Law Dictionary, 9th edition self the task of explain- BY PETER SPILLER ing and critiquing New Zealand’s unwritten consti- District Court Judge and tution in terms of 16 main Immigration and Protection principles. Along with the Tribunal Chair Peter Spiller’s rule of law and respect for first foray into the legal the Treaty of Waitangi, he dictionary world was in brings together a fascinat- 1995 with the fourth edi- ing set of other principles, such as the principle that tion of GW Hinde’s 1964 Parliament is free to manage itself, the principle that New Zealand edition of the courts may oversee Government action through the English law dictionary, judicial review, and the principle that the courts are Mozley & Whiteley. Dr accountable for the exercise of their powers. Each Spiller says the intention principle is analysed in terms of the impacts of con- is to provide a basic under- vention and historical, legislative, judicial and other standing of the terms used in New Zealand law, and influences behind its present development. there are over 5,000 titles in the latest edition. Thomson Reuters New Zealand Ltd, 978-1-988553- LexisNexis NZ Ltd, 978-0-947514-78-5, February 2019, 70-2, December 2018, paperback and e-book, 346 paperback, 364 pages, $45 (includes GST, excludes pages $100 (excludes GST and postage). postage).
Wells on Animal Law, 2nd edition Legal books BY NEIL WELLS AND MARCELO RODRIGUEZ This information has been compiled from books FERRERE which publishers have sent to LawTalk. It does not imply endorsement by the New Zealand Law The author of the first edition (published in 2011) and con- Society and its objective is to provide information tributor to the second, Neil Wells died in 2017. University on books which might be of interest to the legal of Otago senior law lecturer Marcelo Rodriguez Ferrere profession. Purchase inquiries must be directed has completed the work on the new edition. The text to the appropriate publisher. is divided into nine parts which look at the various
81 CLASSIFIEDS April 2019 · LAWTALK 927
Grindley, George William Would any lawyer holding a will for the above-named, late of Lower Hutt, Retired Geologist, who died on 12 February 2019, please contact Sharon Burnet, Gibson Will Sheat Lawyers: [email protected] Page, Jason James 04 916 6447 or fax 04 569 4874 Would any lawyer holding a will for the above-named, Private Bag 31905, Lower Hutt 5040 or DX RP42008 Notices late of 1/298 Blockhouse Bay Road, Avondale, Auckland, Self Employed, aged 47 years, born on 1 Darling, Thomas Charles October 1971, please contact Fiona Mathieson, Boyle Would any lawyer holding a will for the above-named, Mathieson, Solicitors: late of Christchurch, Beneficiary, born on 26 May Sell, Russell Frank William [email protected] 1981, who died on 12 January 2019, please contact Whale, Peter Ronald 09 837 6004 or fax 09 837 6005 Lisa Kennedy, Strowan Law: PO Box 21 640 or DX DP92555 Brett, Barry Leonard [email protected] 03 352 3769 154 Harewood Road, Papanui, Christchurch 8542 Cheung, Chui Wa (aka Laurent, Cheryl Anne Chui Wa So-Cheung) Would any lawyer holding a will for the above-named, Kwok, Gladys late of Woodend, Tour Guide, born on 12 August Would any lawyer holding a will for the above-named, Page, Jason James 1967, please contact Vicky Brown, Helmore Stewart late of Auckland, Retired, aged 92 years, who died Lawyers: Laurent, Cheryl Anne on 10 May 2018, please contact Peter J Tatham, [email protected] Saunders & Co: Rota, Louisa Virginia 03 311 8008 [email protected] Upton, Jonathan Paul 03 349 5111 or fax 03 349 4876 Rota, Louisa Virginia Ah Ken, Sakaria PO Box 16274, Hornby, Christchurch Would any lawyer holding a will for the above-named, Valepo, Fakahula (aka late of 3 St Margarets Place, West Harbour, Auckland Sell, Vivienne Lucille 0618, born on 02 May 1975, who died on 10 February Fakahulahetoa Valepo) Would any lawyer holding a will for the above-named, 2019, please contact Doug Cowan: late of Auckland, Homemaker, born on 29 June 1930, Goodall, Margaret Jean [email protected] 09 320 4616 aged 88 years, who died on 21 October 2018, please Hindman, Jean 486 New North Road, Kingsland, Auckland 1021 contact Brendan McNamara, Prudentia Law: Grindley, George William [email protected] Upton, Jonathan Paul 09 912 1985 or fax 09 912 1982 Darling, Thomas Charles Would any lawyer holding a will for the above-named, PO Box 340 Shortland Street, Auckland late of Waikanae, Kapiti Coast, born on 16 April 1968, Kwok, Gladys who died on 11 February 2002, please contact Paul O’Riley, Dianne Florence (formerly Sell, Vivienne Lucille Whitmarsh, Whitmarsh Law: known as Dianne Florence Bolton) [email protected] 04 550 4053 Would any lawyer holding a will for the above-named, O’Riley, Dianne Florence PO Box 30-852, Lower Hutt 5040 (formerly known as Dianne late of Huntly, Genesis Energy Team Leader, born on 12 August 1963, 00who died on 6 January 2019, Florence Bolton) Ah Ken, Sakaria please contact Gaylene, Fry Wilson Todd and Co: Numakura, Hideyuki Would any lawyer holding a will for the above-named, [email protected] late of 20 Levonia Street, Western Springs, Auckland, 07 8287 548 136 Main Street, Huntly Wang, Tsung-Min Retired, who died on 7 February 2018, please contact Susan Tracy, Cairns Slane: Numakura, Hideyuki [email protected] Sell, Russell Frank William Would any lawyer holding a will for the above-named, late 09 306 7366 Would any lawyer holding a will for the above-named, of Unsworth Heights, Auckland, Retired Restauranteur, late of Auckland, Retired Education Administrator, born on 19 July 1962, who died on 1 November 2018, born on 12 June 1931, aged 87 years, who died on Valepo, Fakahula (aka Fakahulahetoa please contact John Morton, Morton Tee & Co: 12 June 2018, please contact Brendan McNamara, Valepo) [email protected] 09 486 1729 Prudentia Law: Would any lawyer holding a will for the above-named, PO Box 331133, Takapuna, Auckland 0740 or DX [email protected] late of Auckland, who died on 30 December 2018, BP66025 09 912 1985 or fax 09 912 1982 please contact Jennifer Wickes, Loo & Koo, Solicitors: PO Box 340 Shortland Street, Auckland [email protected] Wang, Tsung-Min 09 520 3866 or fax 09 520 6218 Would any lawyer holding a will for the above-named, Whale, Peter Ronald PO Box 99687, Newmarket, Auckland late of Auckland, formerly a Businessman, born on 19 Would any lawyer holding a will for the above-named, June 1951, aged 67 years, who died on 11 November late of Northcote Point, Auckland, Businessman, Goodall, Margaret Jean 2018 at Hualian City, Taiwan, please contact Ben who died on 9 January 2019, please contact Emily Would any lawyer holding a will for the above- Bong, Wong & Bong Law Office: Holdaway, Kemps Weir Lawyers: named, late of Waverley, Invercargill, who died on [email protected] [email protected] 3 February 2019, please contact Kathryn McBrearty, 09 535 5886 or fax 09 535 5947 09 526 2560 Duncan Cotterill: PO Box 51454, Pakuranga, Auckland PO Box 62566, Greenlane, Auckland 1546 [email protected] 03 379 2430 PO Box 5, Christchurch 8140 Cheung, Chui Wa (aka Chui Wa Brett, Barry Leonard So-Cheung) Would any lawyer holding a will for the above-named, Hindman, Jean Would any lawyer holding a will for the above-named, late of 2/527 Weymouth Road, Weymouth, Manukau, Would any lawyer holding a will for the above-named, late of Auckland, Housewife, born on 29 Janaury who died on 23 January 2019 in Northshore, Auckland, late of 66 Farringdon Street, Glen Innes, Auckland, 1947, who died on 19 December 2018, please contact please contact Joanne Savage, Holland Beckett Law: Barrister, aged 58 years, who died at Glenn Innes, Arthur Loo, Loo & Koo: [email protected] Auckland, on 29 October 2018, please contact Maurice [email protected] 07 577 8006 or fax 07 578 8055 J Burney, Barrister and Solicitor: 09 520 3866 or fax 09 520 6218 Private Bag 12011, Tauranga 3143 or DX HP40014 [email protected] 09 527 1311 PO Box 99687, Newmarket, Auckland or DX CP31056
82 LAWTALK 927 · April 2019 CLASSIFIEDS
LAWYER REQUIRED
We are looking for a lawyer with 3+ years experience. Experience in Trust work and preferably estate administration is an advantage, however we will provide training as required. The role will also include property, conveyancing and commercial/ JUDICIAL APPOINTMENTS AND DISCIPLINE PANEL business work, so if you are looking for an interesting, diverse and stimulating role we would love to hear from you. There is the NOTICE OF JUDICIAL VACANCY possibility of future partnership opportunities for the right person. We are a small, busy practice with a great work environment and Lord Chief Justice — Kingdom of Tonga embrace a positive, humorous and supportive culture. To apply please email your cover letter and resume to jrainey@ The Judicial Appointments and Discipline Panel, northendlaw.co.nz established by the Constitution of the Kingdom of Tonga, makes recommendations to the King in Privy Council on the appointment of eminently qualified persons to the Judiciary. The Panel hereby notifies that a vacancy is expected in December 2019 for the position of Advertise with us! Lord Chief Justice. LAWTALK OUR WEBSITES LAWPOINTS Expressions of interest should be sent by e-mail to Ms. Rosamond Bing, Clerk (Judicial Appointments and Discipline Panel) at rosamond.c.bing@gmail. Contact our Advertising Co-ordinator: com to be received in Tonga no later than 12 Noon on Tuesday, 30 April 2019. All expressions of interest will be treated in the 04 463 2905 strictest confidence. [email protected]
Legal visionaries will tell you the writing is on the wall - law firms need to change their approach to the practice of law
Law firms need to: Join our team Embrace technology If you share our vision we’d like to talk to you From the day we started, we employed IT Staff, about joining us full time as a solicitor in our many clients only instructed us electronically Auckland office. and for nine years now, one bank has deployed a unique web signing technology program that our Ideally, you will have: IT team helped develop. - At least 2 or more years post admission experience; and Understand risk management A form of insurance that we introduced was - Practice and be interested in any or all of referred to by the late George Hinde in 2003 property law, banking and finance, private as one of the three standout developments in client work (trusts, wills and estates) and/or land law over the last 50 years. Today we give litigation and dispute resolution. every client purchasing a home a policy to help them manage their property law risk and us our Write on our wall – send us your CV and tell us professional indemnity risk. about yourself at: [email protected] Are you ready to change? Level 22, Huawei Centre, 120 Albert Street, Auckland www.sandersonweir.com
83 CLASSIFIEDS April 2019 · LAWTALK 927
Due to an increasing workload we are looking for motivated and enthusiastic team members for our busy general practice in beautiful Taupo. REFEREES, DISPUTES TRIBUNAL We have a friendly and capable team with relaxed offices, HAMILTON affordable housing, no parking hassles, zero traffic worries and access to a wonderful lifestyle. A competitive remuneration There will shortly be a process for the appointment package is available depending on experience, including an of Referees in the Hamilton Region. Members of the attractive bonus structure. public are invited to submit the names of persons You can drive these roles as hard as you like – there are good who are considered suitable for appointment as career prospects for the right applicants. Referee. Senior/Intermediate Commercial Solicitor or Nominations must be sent in writing or by email. Legal Executive An experienced commercial lawyer or legal executive, working They must contain the name, address, telephone primarily in Property, including Conveyancing, Subdivisions, number and email address of both the nominator Trusts, Business Sales and Purchases, Leasing, Company Law and the person being nominated. and General Commercial Practice. Ideally you will have at least 3 years PQE but all applications may be considered. Once a nomination has been received, the person who is nominated will be sent an application pack Family Lawyer with details relating to the position and how to A Family Litigator with at least 2 years PQE and Lead Provider status. You will be working with a primary focus on Family Matters apply for it. including Protection Orders, Care of Children Act Proceedings, Oranga Tamariki Advocacy and Relationship Property. Nominations are to be made to the Principal Disputes Referee, DX SX11159, Wellington, Ph: (04) Call Tom or Kate Mounsey for a confidential chat 462 6695, or email [email protected] (07 377 8464 or 0212 804 259) Applications to [email protected] with Nominations must be received by this office no accompanying CV should be made by 10 April 2019 later than 12 noon on Monday 15 April 2019.
Experienced Crown Prosecutor/Litigator Wellington Luke Cunningham Clere is a medium sized law firm based in REFEREES, DISPUTES TRIBUNAL Wellington’s CBD. As the Wellington Crown Solicitor’s office INVERCARGILL we undertake criminal prosecutions, regulatory enforcement and litigation for the Crown. We have expanding civil There will shortly be a process for the appointment litigation, public law, and professional disciplinary practices acting for a wide range of Crown and other entities. of Referees in the Invercargill Region. Members of the public are invited to submit the names of persons We are seeking to appoint an experienced criminal lawyer who are considered suitable for appointment as to work across our client base. Referee. You will be able to immediately pick up a trial workload and will ideally have experience in some of our other Nominations must be sent in writing or by email. practice areas. Strong written and oral communication They must contain the name, address, telephone skills are essential as is sound decision making on legal and number and email address of both the nominator procedural matters. You will be conscientious and resilient, and the person being nominated. be able to work with minimal supervision and able to manage your workload effectively. Once a nomination has been received, the person who is nominated will be sent an application pack We are looking for someone who can either immediately with details relating to the position and how to or quickly develop into taking an active role in assisting Partners to manage key clients. This includes: allocating apply for it. and managing files; supervising and reviewing work; liaising directly with clients; monthly client reporting; presenting at Nominations are to be made to the Principal seminars; etc. Disputes Referee, DX SX11159, Wellington, Ph: (04) 462 6695, or email [email protected] Applications should be e-mailed to [email protected] before 28 April 2019 and include a covering letter, CV Nominations must be received by this office no and academic transcript. No agencies. later than 12 noon on Monday 22 April 2019.
84 CPD Calendar
PROGRAMME PRESENTERS CONTENT WHERE WHEN CIVIL LITIGATION AND EMPLOYMENT
EXPERT WITNESS – Chris Browne In many cases, expert evidence can be pivotal to the Auckland 11 Apr IMPORTANT ISSUES Julie Anne Kincade determination of key issues and counsel will invariably Live Web Stream 11 Apr be confronted with the task of both working with and 2 CPD hours challenging the evidence of expert witnesses. This seminar will provide you with an overview of the law, practical guidance on dealing effectively with expert witnesses and incorporating expert evidence as part of a robust overall litigation strategy.
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 close 15 April* and 23 Sept**.
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. COMPANY, COMMERCIAL AND TAX
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 Apr-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
INTRODUCTION TO Brett Crowley A practical two-day workshop covering the fundamentals of Wellington 6-7 May CRIMINAL LAW PRACTICE being an effective criminal lawyer. This workshop will benefit Auckland 2-3 Sep 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 (The application deadline for Wellington has now closed).
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.
For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz Online registration and payment can be made at: www.lawyerseducation.co.nz
PROGRAMME PRESENTERS CONTENT WHERE WHEN FAMILY
SECTION 21 AGREEMENTS Jennie Hawker Section 21 agreements are common place and often require Auckland 16 Apr – CRYSTAL BALL Simon Jefferson QC a large degree of input, knowledge and “crystal ball gazing” Live Web Stream 16 Apr GAZING? on the part of practitioners who want to ensure that the agreements withstand the test of time. This presentation 2 CPD hours is intended not only to update practitioners on the recent case law but to also consider and address the “grey areas” we all encounter when drafting living agreements (s 21) and settlement agreements (s 21A). It will additionally include reference to the Law Commission and its commentary on these agreements
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
PROPERTY – CONFLICT Simon Hamilton What are your obligations as a practitioner when you have Auckland 2 May OF INTEREST Harshad Shiba been asked to act for more than one client in a property Live Web Stream 2 May transaction? First, the presenters will outline the key 2 CPD hours fiduciary and statutory obligations on property lawyers in these situations, and also offer practical suggestions that will help enable you to avoid conflicts or complaints. The presenters will then outline the procedure that solicitors should follow, and the obligations on them, in the event of a claim or complaint.
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. PUBLIC
HUMAN RIGHTS LAW – Chair: A comprehensive round-up of recent cases and Wellington 7 May NEW FRONTIERS Paul Rishworth QC developments with an eye to the future – what lies ahead in Live Web Stream 7 May human rights law? Auckland 8 May 6.5 CPD hours
OTHER PRACTICE AREAS
EDUCATION LAW Chair: New Zealand’s premier Education Law Conference will once Wellington 6 May CONFERENCE 2019 Gretchen Stone again focus on the key issues facing educationalists, as well Live Web Stream 6 May as practitioners who advise Boards of Trustees, principals, or Auckland 7 May 6.5 CPD hours parents.
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.
PRACTICE AND PROFESSIONAL SKILLS
A WINDOW INTO Chief District Court An invitation from the Chief District Court Judge and the Auckland 15 Apr BECOMING A DISTRICT Judge Doogue Principal Family Court Judge to hear what it takes to be a Dunedin 17 Apr COURT AND/OR FAMILY modern judge. This seminar will help you determine whether Principal Family Court COURT JUDGE this role might be for you, and whether your current career Judge Moran settings are right should you wish to progress on to the 1.25 CPD hours Bench. See full invitation to attend at: www.lawyerseducation.co.nz
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: Online registration and payment can be made at: www.lawyerseducation.co.nz www.lawyerseducation.co.nz
PROGRAMME PRESENTERS CONTENT WHERE WHEN PROGRAMME PRESENTERS CONTENT WHERE WHEN FAMILY PRACTICE AND PROFESSIONAL SKILLS
SECTION 21 AGREEMENTS Jennie Hawker Section 21 agreements are common place and often require Auckland 16 Apr TRUST ACCOUNT Philip Strang How do you keep a trust account in good order? This practical Various Apr-Sep training is for new trust accounting staff, legal executives, – CRYSTAL BALL Simon Jefferson QC a large degree of input, knowledge and “crystal ball gazing” Live Web Stream 16 Apr ADMINISTRATORS GAZING? on the part of practitioners who want to ensure that the legal secretaries and office managers. agreements withstand the test of time. This presentation 4 CPD hours 2 CPD hours is intended not only to update practitioners on the recent case law but to also consider and address the “grey areas” we all encounter when drafting living agreements (s 21) and TRUST ACCOUNT Philip Strang Under the Financial Assurance Scheme all practices operating Auckland 1 16 Apr settlement agreements (s 21A). It will additionally include SUPERVISOR TRAINING a trust account must appoint a qualified trust account Hamilton 18 Jul reference to the Law Commission and its commentary on PROGRAMME supervisor. A candidate must be a lawyer and must pass Wellington 24 Sep these agreements the NZLS trust account supervisor assessments, which take Auckland 2 5 Nov 7.5 CPD hours place during a full day programme. The training consists of MENTAL CAPACITY Chair: The mental capacity of a client to instruct a lawyer is Auckland 10 Jun self-study learning material (approx. 40-50 hours) to help you Christchurch 12 Nov FORUM Kathryn Lellman fundamental to every area of legal practice. This practical Live Web Stream 10 Jun prepare for the assessments. forum will provide a comprehensive overview of capacity EFFECTING CULTURE Rabia Siddique Culture is everything. It goes far beyond the company values Wellington 29 Apr 6 CPD hours concepts, guidance on best practice for lawyers from legal and medical experts, and analysis of case studies. CHANGE and mission we espouse on our websites, letterheads and to Auckland 30 Apr our clients. It is what we say and do when we think others PROPERTY AND TRUSTS 6 CPD hours are not watching or listening. Essentially it is about how we treat each other, how we communicate with each other and PROPERTY – CONFLICT Simon Hamilton What are your obligations as a practitioner when you have Auckland 2 May our clients. This workshop has limited numbers and will fill OF INTEREST Harshad Shiba been asked to act for more than one client in a property Live Web Stream 2 May up fast. transaction? First, the presenters will outline the key 2 CPD hours fiduciary and statutory obligations on property lawyers in MEDIATION PRINCIPLES Virginia Goldblatt A practical two-day workshop focused on the professionals Auckland 3-4 May these situations, and also offer practical suggestions that AND PRACTICE Geoff Sharp in the mediation process, whether that is as advocates or Wellington 26-27 Jul will help enable you to avoid conflicts or complaints. The mediators. You will learn new skills and also enhance and presenters will then outline the procedure that solicitors David Patten 13 CPD hours adapt skills you currently possess so that you can improve should follow, and the obligations on them, in the event of a Adam Lewis your representation of parties at mediation and your claim or complaint. knowledge of the role of a mediator. It can lead, if you wish, to a second workshop focused on training to be a mediator. TRUSTS CONFERENCE Chair: Greg Kelly Trust lawyers and trustees face unprecedented changes: Wellington 17-18 Jun Note: Douglas Wilson Scholarship applications close for 2019 the Justice Committee of Parliament has recommended Live Web Stream 17-18 Jun Wellington 26 June. that a new Trusts Bill be passed; the Law Commission has proposed significant changes to the current “trust busting” Auckland 24-25 Jun 13 CPD hours STEPPING UP – Director: All lawyers wishing to practise on their own account whether Christchurch 9-11 May provisions in family law; the drafting of trust documents FOUNDATION FOR alone, in partnership, in an incorporated practice or as a and changes to existing trusts will come under scrutiny; the Warwick Deuchrass Auckland 2 25-27 Jul PRACTISING ON OWN barrister, will be required to complete this course. Family Court will have greater jurisdiction over trusts. If you Wellington 12-14 Sep ACCOUNT 2019 work in the areas of trusts, estates, property and relationship Auckland 3 21-23 Nov property, you will need to understand these changes. 18.5 CPD hours PUBLIC
HUMAN RIGHTS LAW – Chair: A comprehensive round-up of recent cases and Wellington 7 May KUA AO TE RĀ: Alana Thomas This one-day workshop is specifically tailored for lawyers and Wellington 24 Jun MĀORI CULTURAL is designed to enhance your ability to connect with Māori who NEW FRONTIERS Paul Rishworth QC developments with an eye to the future – what lies ahead in Live Web Stream 7 May Apimaera Thomas Auckland 25 Jun human rights law? DEVELOPMENT FOR you may be working with as clients, stakeholders, partners, Auckland 8 May LAWYERS or in another capacity. Experienced facilitators will guide you 6.5 CPD hours through an interactive day as you consider the who, why and 6 CPD hours the how to successfully engage with Māori in the law. OTHER PRACTICE AREAS
EDUCATION LAW Chair: New Zealand’s premier Education Law Conference will once Wellington 6 May CREATING GREAT Chair: Are you the best employer you can be? Is your workplace Wellington 24 Jun CONFERENCE 2019 again focus on the key issues facing educationalists, as well Gretchen Stone Live Web Stream 6 May WORKPLACES FOR Susan Hornsby-Geluk a safe, positive and sustainable one? Are you attracting Live Web Stream 24 Jun as practitioners who advise Boards of Trustees, principals, or LAWYERS FORUM and retaining the staff you want? Can your law firm adapt Auckland 7 May Auckland 25 Jun 6.5 CPD hours parents. to meet the challenges of the future? This forum brings 6 CPD hours together a group of highly experienced and successful practitioners who have grown successful practices and ELDER LAW INTENSIVE Chair: Lawyers who practice in the Elder Law area are today faced Wellington 29 May have dealt with many challenges. The presenters will openly 2019 Mary Joy Simpson with legal requirements and complexities which were not Live Web Stream 29 May discuss the issues and share their experience and practical evident a generation ago. This intensive will provide up-to- advice to help you be the best employer that you can be. Auckland 30 May 6 CPD hours date practical advice on current issues and challenges.
PRACTICE AND PROFESSIONAL SKILLS
A WINDOW INTO Chief District Court An invitation from the Chief District Court Judge and the Auckland 15 Apr BECOMING A DISTRICT Judge Doogue Principal Family Court Judge to hear what it takes to be a Dunedin 17 Apr COURT AND/OR FAMILY modern judge. This seminar will help you determine whether Principal Family Court COURT JUDGE this role might be for you, and whether your current career Judge Moran settings are right should you wish to progress on to the 1.25 CPD hours Bench. See full invitation to attend at: www.lawyerseducation.co.nz
To contact us | Visit: www.lawyerseducation.co.nz To contact us | Visit: www.lawyerseducation.co.nz Email: [email protected] | Phone: CLE information on 0800 333 111 Email: [email protected] | Phone: CLE information on 0800 333 111 LIFESTYLE April 2019 · LAWTALK 927
LIFESTYLE
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M A J O R T O M H A W A I I I U A B B N N S I R O C C O S J U S T U S U O I E F T I I Across Down S I R E N S M E S S I A H S E S G C L C T 1 Whale's leap showing potential 1 Profligate U-turn by crackpot C O O K I N G W I N E for a common law tort (6,2,7) might end here? (10,5) S S A U N R D D 9 I totally agree - have a pint! (3,4) 2 What 11 did during a function, E M P E R O R N E R O A I T S T C U 10 Meet with X re organisation of Z, standing up for convexity of a P I R O G U E S R E M I S S for example (7) column (7) O A R D O S C I 11 Admirer of Malcolm X, but 3 Number one secretly reducing W A L L A H M A Y Q U E E N E L I H U R G possibly not of Edmonds baking the odds to make an unethical R O Y A L S D U K E D O M S powder? (4,5) agreement (9) 12 Early version of cask beer, say (5) 4 Tenderer a short distance away, 13 Rebus, for example, returned about three times (7) Solution to February regarding a minor concession (5) 5 Continue newspaper coverage 2019 crossword 14 Young Maori called at a hotel of... (5,2) Across unit (9) 6 ...Otago university's little bear - 1. Major Tom, 5. Hawaii, 9. Siroccos, 16 Big Eddy Fish turned by revealed! (5) 10. Justus, 12. Sirens, 13. Messiahs, Inspector Morse... (9) 7 Not quite like sliced fruit and 15. Cooking wine, 19. Emporer 20 Add electric plant (5) flower arranging(7) Nero, 22. Pirogues, 24. Remiss, 22 It's thrown out after tea gets 8 Currently, formal accusations are 26. Wallah, 27. May Queen, very loud (5) relayed by the conductor (8,7) 28. Royals, 29. Dukedoms 24 Lay to rest clever software the 15 Bass drum I beat - it's all a bit French rejected, among other ridiculous! (9) Down things (5,4) 17 Musicians on leave? (7) 1. Misuse, 2. Jurors, 3. Racing car, 25 Experience supporting the start 18 How like a god to clue "Die!" (7) 4. Oboe, 6. Abuts, 7. Antiacid, of Monopoly (7) 19 Attack on TV, or vice versa? (3,4) 8. Insisted, 11. Felines, 14. Courted, 26 Political leader doing what 11 21 XXXXXXXXXXX plant a small 16. Grotesque, 17. Sea power, didn't - applying leverage (7) charge (7) 18. Spirally, 20. Cicero, 21. Usings, 27 Moral guidance from X? (3,12) 23 TV programme would be another 23. Grail if I had anything to do with it (5)
88 LAWTALK 927 · April 2019 LIFESTYLE
LIFESTYLE
The Irish R.M. Justice a mere sideline in historical magistrates series
BY CRAIG STEPHEN
This semi-comical television series, a joint Irish- British production, was as much about class and servitude as it was about the serving of justice. The R.M. in the title refers to the Resident Magistrates which the United Kingdom (which at the time included all of Ireland) sent out to the colonies to sort out those dashed unruly locals and provide a stiff upper lip type civility. They were also present in New Zealand, first established in 1846, with the R.M.s deciding on a limited range of The basis of the episodes are that Major Sinclair Yeates criminal cases and civil claims. In 1893 they became known attempts to be a reasonable man in a society that relishes simply as magistrates and their responsibility and authority devilment. Two women feature prominently, his wife was extended. Philippa, a measure of understanding and support, and The Irish R.M. of the series is one Major Sinclair Yeates, his housekeeper Mrs Cadogan, a defender of the home played by Peter Bowles, who basically does what he always against outsiders. does by playing a genial British establishment figure. Sinclair has also developed a close friendship with Flurry Yeates is a retired army officer who has been dispatched Knox, who has an unerring instinct for getting what he as resident magistrate to the small town of Skebawn. The wants with just a wink and a smile. He is one of several first series is set at the turn of the 19th/20th centuries, well Irish stereotypes, but the film-makers also poke fun at the over a decade before the Easter Uprising. In fact, these English, including one crass upper class twit who provides stories relate to a period of relative stability and peace on some jolly hockey sticks type humour. the island following the political tensions and violence of In one episode in the second series, Yeates must decide the Land War (1880–92). what to do with salmon poachers, and the village’s new In the opening episode Yeates encounters his landlord dispensary doctor, who turns out to be one of Flurry`s old Flurry Knox and finds out exactly what mischief he and Trinity College pals, cons the Major into breaking into the his associates can get up to. local butcher shop to ‘’borrow’’ some meat. On his first day in court, after being conned into giving In a subsequent episode, taking its cue from Whisky only a caution to a serial offender for a minor offence, a Galore, the book and film about a real-life grounding of chastened Yeates sticks Flurry’s fox hunting whipper-in a ship full of whisky on a remote Scottish island, a ship in jail for a week for Saturday night fisticuffs, much to goes aground in a winter storm, spilling its cargo – barrels Knox’s chagrin. of rum – all over a beach, resulting in contraband caches. The three series, which ran from 1983 to 1985, were ‘’The real tragedy,’’ says a spectator in the magistrate`s based on the books of Edith Somerville, an Irish novelist chambers, ‘’is that so much good liquor was wasted on and feminist, and Violet Martin, who wrote under the the stones’’. pseudonym Martin Ross. Interestingly, it appears that Meanwhile, weaved into this tale of comical petty crime, Somerville was an avowed Irish nationalist while Martin is a sub-plot about Knox being challenged to a polo game was a committed unionist. That didn’t stop them from by a visiting maharjah and his compatriots. collaborating on more than a dozen books, including three As The Clean and English fox hunters may once have that spawned the TV series many decades later – Some cried: Tally Ho! Experiences of an Irish R.M., Further Experiences of an Irish All three series – 18 episodes – of the The Irish R.M. are R.M. and In Mr Knox’s Country. available on a boxset DVD. ▪
89 TAIL-END
TAIL-END
A judgment from Heaven
BY ANGEL OF JUDGMENT
Continuing our tales from long ago theme … The author of this does not want to be identified. It’s not in the latest New Zealand Law Dictionary, but “beak” was once slang for a magistrate.
prepared to pay for the hire of an aircraft bailiff or the local police sergeant (who About 40 years ago a new young “beak” but would only reimburse the normal was the President of the local aero club) arrived in a prosperous regional city. He mileage for a motor vehicle to travel to and be sitting in court by 9:30am. After held a private pilot’s licence and was the circuit courts. This suited the “beak” court it was back to the airfield, a quick determined to use his flying skills to make because in those days an aircraft could take off (after again clearing the sheep his visits to outlying courts on his busy be hired from the aero club for about $15 from the runway) and in 20 minutes back circuit a quick and safe experience. per hour (while the aircraft was in the air) to home base, sign off the aircraft and He had a young family and wanted to and the longest flight to a circuit court home to wife and family. be away from home for as short a time took less than 1 hour. as possible. The country roads had lots A typical flight consisted of arriving at Clag day of heavy traffic and were dangerous as the aero club at about 8am. A pre-flight On a memorable occasion the “beak” he was soon to learn from the number inspection of the aircraft, checking fuel, noticed out the window of the court- of people who appeared before him to filing a flight plan and take off at about house where he was sitting in the most answer to serious traffic offences, many 8:30am. A 20-minute flight to the airfield distant part of his circuit, that the weather of which involved death or injury to other at a distant circuit town and an inspection appeared to be deteriorating. A “front” road users. Flying to the circuit courts to see how many sheep there were on the was moving in from the sea and he was meant less travel time and was consider- airfield and where they were located. A anxious that he would not be able to fly ably safer than driving in heavy traffic on swoop down the main runway to clear home but would be stranded in the “wop busy main roads which had many narrow the sheep, a steep turn and landing. Park wops”. He telephoned the aero club at bridges. The Justice Department was not the aircraft and be picked up by the court his home base and was assured that the
❝ I can’t repeat the language, it was very robust, but when Notable Quotes everyone was frantically discussing the ethical points, Lindy’s advice was, ‘well, you know, you just deal with the client. You tell him where he can get off and if you’re at a table with a ❝ There has to be no hint of any outside inquiries, or inquiries fork handy, well you stick it in his hand’. ❞ made online, and for that reason the whole trial has been — Adelaide barrister Frances Nelson QC provides ABC Radio compromised.” ❞ with some background on rumours about what Lindy Powell — Judge Chris Field in Christchurch District Court, who dismissed QC actually said when asked at a law conference how young a jury in a criminal trial after learning that a juror had accessed female lawyers should best deal with sexual harassment by Facebook for information on the defendant. male clients.
❝ I have not quit. I do not quit. ❞ ❝ I am ashamed because I know what Mr Trump is. He is a — Australian barrister Robert Richter QC, who was the trial racist. He is a conman. He is a cheat. ❞ lawyer for Cardinal George Pell, found guilty of child abuse. — US President Donald Trump’s former lawyer Michael Cohen After media reports that Mr Richter had quit, his chambers starts his testimony to the House of Congress’s oversight said he did not have sufficient objectivity to lead the appeal committee. Mr Cohen is a former lawyer in another way: he but would be part of the defence team. was disbarred on 27 February.
90 weather was fine there and that if he left in the general direction of home. forcing the aircraft to fly lower and lower. immediately, he would have no problems Being gradually pushed by the clag The “beak” was navigating by watching reaching home. A quick trip in the police further and further towards the valley it the seas break on the shore because he car to the local airfield (in a farmer’s was not long before the aircraft was flying knew that if he followed the coast he paddock) to pick up the aircraft and the low up the valley with the clag rolling would arrive at his home base aerodrome. “beak” was airborne. He was flying by VFR in overhead. Those gorse bushes look Flying along the coast at cliff top height (visual flight rules) which meant he had awfully close – so do the fence posts. was an unnerving experience in itself but to be able to see the ground and could After about 20 minutes of hedge hopping suddenly as if by magic, the aircraft flew not fly in or above clouds. with the clag closing overhead the “beak” out of the clag into bright sunshine. A Dark gray/black clouds (which pilots radioed home base to say that he was at regulation downwind approach, turn into call clag) were rolling in from the sea and 1,000 feet over a small seaside township wind, land the aircraft and report to the it looked as though they would block the and that the clag was pretty thick, but tower. “Where have you been and how flight path north in a very short time. What he would turn down the coast towards come your suit is soaked in sweat?” I must did the “good book flying manual” say – “if home. At that very moment another club get some instrument flying experience in doubt do not proceed but turn back to aircraft radioed that it was at 1,000 feet said the “beak”. your departure point”. OK, do a 180 degree inbound from Auckland over the same A smart lawyer in one of the circuit turn – what is all that clag that has come seaside township. courts once called the “beak” the “angel in behind me? I can’t see where I have just The other aircraft suddenly appeared of judgment”. He said it described the come from!! OK, another 180 degree turn out of the clag about 100 yards ahead “beak” arriving from the clouds, hearing and see if we can make it north before flying at right angles to the “beak’s” plane. the cases, delivering judgments and the clag ahead rolls in. It is getting very The “beak” immediately turned and fol- disappearing back into the clouds at the close and a quick look at the navigation lowed the other faster aircraft. The clag end of the sitting day. Probably an apt chart shows a valley running north/south was still closing in from the sea and was description. ▪
❝ I have never in my 21 years as a criminal defence lawyer – and ❝ People think judicial discretion is some sort of trick … it that’s all I do – I have never seen such a minor case engender gives [judges] the opportunity to do whatever they like. such disproportionate attention. It’s a big deal to my client, But in real life it’s not like that. We’re quite constrained by but small potatoes in the grand scheme of things.” ❞ the law … It’s not like you can jump in and have a free kick. — Connecticut attorney John Thygerson, who defended driver ❞ Jason Stiber who was charged with distracted driving. The — Retired judge and chair of the Queensland Sentencing ticketing police officer said Mr Stiber was talking into a Advisory Council John Robertson, commenting on a private cellphone. Mr Stiber said he was eating a hash brown. member’s bill which includes a mandatory minimum sentence for violence towards or neglect of children which causes death. ❝ [462] … I am conscious that this judgment is likely to be appealed whatever the ultimate outcome, perhaps even ❝ People around Harvey are saying he’s desperately trying through to the Court that Mainzeal built.”.❞ to hire a ‘skirt’ – their term – for the team as he feels it will — Justice Cooke contemplates the possibility of a Supreme Court soften his image.” ❞ finish to his comprehensive 178-page decision inMainzeal — US gossip columnist Richard Johnson quotes an unidentified Property and Construction Ltd (in liquidation) v Yan and “insider” on Mr Weinstein’s so far unsuccessful search for a Others [2019] NZHC 255. woman lawyer.
91 Asking for help is a sign of strength
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