ISSUE 910 · September 2017

Company & Five money The pathway Do you not for profit laundering to becoming a love your auditing myths judge job?

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people in the law 31 · Helping Muslim travellers 6 · On the move deal with authorities ▹ BY LYNDA HAGEN 9 · Victoria Anderson – Wairarapa 32 · Decision-making bound sole practitioner ▹ BY by policy: a damming ANGHARAD O’FLYNN verdict? ▹ BY SALLY MCKECHNIE AND CHARLOTTE DOYLE Women in the law 34 · Social Enterprises and 10 · Eight law firms signed up Legal Structure options to Women’s Empowerment in NZ ▹ BY STEVEN MOE Principles ▹ BY ANNA WHALEY 37 · Trust deed audits ▹ BY 6831 ROBERT BUCHANAN 12 · NZLS at a glance 38 · Trust deeds: Variation powers in the 21st century ▹ BY 14 · General Election 2017 KIMBERLY LAWRENCE

Update AML/CFT 24 · Company and not 39 · Five money laundering myths for for profit auditing – a lawyers to avoid ▹ BY RON POL changing landscape ▹ BY ROBERT BUCHANAN Courts 26 · Subcontractor direct payment 42 · The pathway to becoming a provisions ▹ BY JOHN WALTON judge ▹ BY NICK BUTCHER 30 · Greater awards of reparation for significant life changing 8844 harm ▹ BY CATALIJNE PILLE AND LUCY MOFFITT

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4 Contents

Mediation 58 · We are the Lawyers of NOW: practising well 48 · Better Conversations, Part A Manifesto ▹ BY CLAUDIA KING 72 · Emotional eating vs mindful 3: Language, messaging 59 · Do you love your eating ▹ BY RAEWYN NG and the lost art of direct job? ▹ BY KATE GEENTY conversation ▹ BY PAUL SILLS Focus on 61 · Lawyers Complaints 74 · Whangarei ▹ BY KATE GEENTY Litigation Service 49 · Court costs:End of the pro bono lawyer-litigant exception ▹ BY pathways in the law 77 · Equal Justice Project helps SEAN MCANALLY 62 · Claro the health law practical skills development ▹ BY firm ▹ BY NICK BUTCHER CRAIG STEPHEN In-house 52 · What are we here for? Technology Classifieds Rethinking the role of 66 · Marking up and Signing 78 · Will notices the legal function within Documents Without Printing 80 · Legal jobs BT ▹ BY TANIA WARBURTON Them ▹ BY DAMIAN FUNNELL 83 · CPD calendar

Practice Spotlight on Lifestyle 54 · What it’s like to start your own 68 · Areas of practice ▹ BY 86 · Lawyer and best mates law firm? ▹ BY KATE GEENTY GEOFF ADLAM hit the road with a 56 · Pricing and the ‘Dunning-Kruger lemon for marathon rally Effect’ ▹ BY RICHARD BURCHER Legal informartion adventure ▹ BY NICK BUTCHER 57 · Why specialisation is only 70 · The miracle of NZLII ▹ BY 86 · A New Zealand Legal part of the answer for GEOFF ADLAM Crossword ▹ SET BY MĀYĀ lawyers ▹ BY MICHAEL SMYTH 90 · Tail-end

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5 PEOPLE IN THE LAW September 2017 · LAWTALK 910

PEOPLE IN THE LAW ON THE MOVE Two Buddle Findlay special counsel

Justice Fogarty retires Lawyers among Buddle Findlay has promoted two lawyers Women of Influence to special counsel. Justice John Fogarty has retired from the award finalists Hamish Selby in the High Court. A formal sitting to mark his firm’s Auckland office retirement was held at Christchurch High Three lawyers are among the finalists specialises in intellec- Court on 11 August. A LLB(Hons) graduate announced for the 2017 Women of tual property. Admitted of Canterbury University, he completed an Influence awards. Now in their fifth year, in May 2001, he advises LLM at the University of Toronto in 1974 the awards celebrate women across 10 on the identification, and joined Weston Ward & Lascelles in categories who have built on their per- development, protec- Christchurch. He became a partner in 1978 sonal and professional successes to help tion, registration, use, commercialisation, before starting practice as a barrister sole in and inspire others. The winners will be enforcement and management of intellec- 1985 and being appointed Queen’s Counsel announced on 7 September 2017. tual property rights and portfolios, including in 1990. Justice Fogarty was sworn in as a Russell McVeagh partner Pip trade marks, registered designs, copyright, judge of the High Court on 13 November Greenwood is a finalist in the Board and patents and domain names. 2003. Management category. Deborah Manning, Peter Niven is based in a barrister at Auckland’s Landmark the Wellington office and New Employment Chambers, is a finalist in the Community/ specialises in litigation, Court Judge Not Profit and Public Policy categories. insolvency and credit Chapman Tripp solicitor Rez Gardi is a recovery. He was admit- Wellington lawyer finalist in the Global category. ted in May 2004 and acts Joanna Holden has on a range of litigation been appointed an Anna Pollett appointed assignments including Employment Court Tauranga Crown Solicitor contractual disputes, rental arbitrations, Judge and will be sworn negligence and professional negligence, in in Wellington on 8 Tauranga lawyer insurance, judicial review, and insolvency. September. After being Anna Pollett has been admitted as a barrister appointed Crown Solicitor Two lawyers join and solicitor in February 1985 she worked for Tauranga, effective Hudson Gavin Martin at Kensington Swan and then Chapman from 1 August 2017. Ms Tripp, specialising in employment law Pollett is a partner at Technology, media and IP boutique, and general civil litigation. She joined Hollister-Jones Lellman Hudson Gavin Martin, has two new team the Crown Law Office in 2004 and is and takes over the role members. currently team manager of a public law from Greg Hollister-Jones following his Andrew Dentice has team, working in the areas of employment appointment to the District Court Bench joined as a senior asso- law, health and safety law, public law and in March 2017. Ms Pollett graduated from ciate in the ICT team. judicial review. Victoria University with an LLB in 2002 and Andrew specialises in was admitted as a barrister and solicitor of technology and com- Hon Rodney Hansen the High Court in 2003. She is an experienced mercial law. He has just QC joins Samoa criminal lawyer who has served 14 years as returned from London, Court of Appeal a Crown prosecutor and appeared for the having worked at Taylor Wessing, focusing Crown in a wide variety of criminal matters. on ICT-based transactions and projects, Former New Zealand High Court Judge and most recently at Barclays where he Rodney Hansen CNZM, QC has been Sue McCormack led the bank’s FinTech practice. Andrew appointed to the Court of Appeal of Samoa. appointed to started his career in 2005, at Bell Gully in He has been added to a panel consisting KiwiRail board Wellington. of Hon Robert Fisher QC (presiding), Sir Sarah Cachopa Grant Hammond, Sir Peter Blanchard and Sue McCormack, senior partner at has joined the firm’s Sir Graham Panckhurst. The Court sits for Christchurch firm Mortlock McCormack litigation team. Sarah two one-week sessions a year. Mr Hansen Law, has been appointed to the Board of comes to Hudson Gavin was admitted as a barrister and solicitor KiwiRail. Sue specialises in corporate and Martin from an Auckland in February 1969 and was a partner of commercial law. She is the Pro-Chancellor litigation-based firm Simpson Grierson from 1976 to 1991. He of the University of Canterbury, and has where she specialised was appointed Queen’s Counsel in 1995 previously been a director of the Lyttelton in contractual disputes, professional and to the High Court bench in 1999 until Port Company Ltd, the New Zealand negligence, insurance and consumer law his retirement in 2014. Symphony Orchestra and the Public Trust. matters. Sarah was admitted in 2012.

6 LAWTALK 910 · September 2017 PEOPLE IN THE LAW

Chen Palmer Partners announces new Principal

Julie Hardaker has been promoted to Principal at Chen Palmer’s Auckland office. She studied at Waikato Law School and practiced law for 17 years in Hamilton in the dispute resolution team. Julie has practised in civil litigation and employment law acting for clients across New Zealand. She was also an equity part- ner for 11 years and a member of the firm’s management team and currently practices in local government public law. Kristina Muller resumes Cook Island Mediators barrister practice Nine newly accredited Cook Island mediators join trainers and assessors Kristina Muller has resumed practice as a at a celebratory dinner in Rarotonga on 6 July to mark the Cook Islands barrister after seven years at the Crown Law Law Society’s first accreditation course. The course was supported by Office in Wellington and is based at William NZLS CLE Ltd and Massey University and sponsored by LexisNexis and Martin Chambers in Auckland. A member the assessment day was the culmination of three days of workshops. of the NZLS Law Reform Committee, her Participants included lawyers in private practice and from the Office of areas of expertise include public, civil and Crown Law. The training and assessment team included Geoff Sharp, commercial, and property law. Kristina’s Professor Laurence Boulle, Virginia Goldblatt and Dick Edwards. ▪ previous roles include a judges’ clerk at Auckland High Court, commercial litigation at two national law firms, Legal Counsel to the Casino Control Authority, and Crown Counsel with Crown Law. public law litigation. Before joining Bell of real estate assets. Gully he was a partner in the Wellington Toni Forrest has returned to the firm Ben Keith joins Crown Solicitor’s office and Crown Counsel after five and a half years working in Thorndon Chambers and deputy team leader of the tax and London. She is a specialist corporate lawyer commercial team at the Crown Law Office. with experience advising on mergers and Ben Keith has joined Ian Becke joined Bell Gully in November acquisitions, takeovers, joint ventures, cap- Thorndon Chambers, 2016 after moving to New Zealand in ital raisings and corporate restructurings. Wellington at the conclu- 2014 from Australia where he worked for Angela Harford has returned to Bell sion of his appointment as Ashurst. He has 10 years’ experience advis- Gully after four years working for Slaughter the first Deputy Inspector- ing on the structuring, procurement and and May in London. She specialises in General of Intelligence delivery of infrastructure and construction corporate and commercial transactions, and Security. Ben was projects including public private partner- including mergers and acquisitions, also previously Crown ships and the acquisition and divestment takeovers, joint ventures, private equity, Counsel at the Crown Law Office responsible for administrative, constitutional, human rights and public international law. He was a member of the NZLS Human Rights and Privacy Committee from 2009 to 2013. Bell Gully appoints eight senior staff

Bell Gully has appointed a new partner, Tim Smith, and seven senior associates. Tim Smith joins the Wellington litigation team. He specialises in commercial and

7 PEOPLE IN THE LAW September 2017 · LAWTALK 910

corporate restructuring and complex Henny Fairgray joins Jackson Russell expands commercial contracts. Saunders Robinson Brown Business Law team Richard Massey has worked with the firm since 2013 and has broad commercial Henny Fairgray has joined Christchurch David Alizade has been litigation experience. He acts on major reg- firm Saunders Robinson Brown as a senior promoted to partner ulatory investigations and complex High associate in the Litigation and Dispute in Jackson Russell’s Court disputes, with a particular focus on Resolution team. Henny graduated with Business Law Team. competition, banking and consumer law. an LLB from the University of Canterbury Originally from the UK, Susannah Shaw returns to the firm after in 2002 and specialises in family law – an David has a master’s working in-house at Unisys New Zealand. area in which she has practised since 2004. degree in law (with hon- She specialises in contracting advice to the ours) from Cambridge public and private sector and has particular Teaching excellence University, but has practised for most of expertise on major IT outsourcing projects. award for Canterbury his career in New Zealand. His experience Brad Ward joined Bell Gully in 2010 Dean of Law includes working with innovative and dis- after graduating. He is a commercial ruptive businesses on intellectual property litigator with experience in complex The University of Can- strategy and commercialisation matters and commercial disputes, particularly in terbury’s Dean of Law, all aspects of corporate and commercial law. contentious construction matters and Professor Ursula Cheer, insurance disputes. has been presented with Two promotions at Lauren Whitehead joined the firm in a Sustained Excellence Lance Lawson March 2017 after a decade working for award from Ako Aotearoa Australian firm Herbert Smith Freehills. National Centre for Tertiary Rotorua law firm Lance Lawson has pro- She advises on infrastructure projects Teaching Excellence. The moted two lawyers to Associate. and public private partnerships including award was one of 12 Sustained Excellence Erin Reilly wa s probity aspects, as well as construction awards presented at Parliament on 8 August admitted in 2012 after and general corporate advisory. by Tertiary Education, Skills and Employ- graduating from the ment Minister Paul Goldsmith. All Sustained University of Otago. Becky White joins Excellence winners receive $20,000. She joined the firm Catalyst Intellectual in 2013 after working Property New AWS Legal Partner as a Judges Research Counsel in the Rotorua Specialist firm Catalyst Intellectual Chris Menzies has District Court. Erin has practised in a Property has welcomed been welcomed into broad range of litigation areas before Becky White as a the partnership of AWS specialising in criminal law. consultant. Becky spe- Legal. Chris joined AWS Scott Mills was admit- cialises in patent and Legal in 2010 after com- ted in 2012 and has since IP commercialisation pleting his law degree completed a Masters of matters, especially in at University of Otago. Laws at the University of the biotechnology and He specialises in rural Auckland. He joined the life sciences fields. She law, and also advises on firm in 2014 as a special- recently returned to New Zealand from a business and commercial transactions, ist Criminal Litigator and senior in-house counsel role at a multina- residential sales and purchases and pri- has since practised in the tional corporation, and prior to that held vate client affairs. Chris manages AWS Litigation team appearing in the District roles in leading private practice firms in Legal’s new branch office in Winton, Court and High Court as well as a range both Australia and New Zealand. Southland on a full-time basis. of tribunals.

The members of Clifton Chambers are delighted to welcome Craig Linkhorn to the Independent Bar.

phone email +64-4-472 2667 [email protected]

www.cliftonchambers.co.nz

8 LAWTALK 910 · September 2017 PEOPLE IN THE LAW

After 15 years of working at other firms PEOPLE IN THE LAW and for a short period with CYFS, Victoria PROFILE decided to set up as a sole practitioner in about 2004. “I felt it was time to move on, take the challenge, as it were”. She oper- ates her practice from her home office at Victoria Anderson Pahiatua and her Masterton office. “In family law, there is a lot of diversity. From my perspective, it’s a challenging and Wairarapa sole practitioner interesting area of law.” Victoria does a variety of Family Court work including accepting assignments as BY ANGHARAD cervical screening tests in the Gisborne/ lawyer for child and to represent subject O’FLYNN Tairawhiti region by the region’s screener, persons in PPPR matters. This work is mainly Dr Michael Bottrill. in Masterton, Dannevirke and Palmerston Dr Bottrill’s misreading of four tests of North Courts. She complements this work An accomplished family lawyer with one patient resulted in her developing with relationship property matters, convey- a passion for children and families, Victoria advanced cervical cancer before it was ancing, and estate planning. She describes Anderson has worked mainly as a family ultimately diagnosed. She needed invasive herself as “essentially a country GP”. lawyer for most of her legal career. surgery and aggressive treatment and this Part of the big challenge of working as a Admitted to the Bar at the Hamilton incident subsequently launched an inquiry sole practitioner is business management. High Court in July 1989, Victoria has been and subsequent hearings into his practice. With a tight-knit team to help her, Victoria practising for 28 years. She practised in This case made its way to the Privy explains “I have very good staff to do the Hamilton, Tauranga and Gisborne before Council, but was ultimately settled out admin side of the practice so that I can returning to the Wairarapa/Tararua area of Court. focus on the legal work.” where she lived as a child. Many other women were also affected, For someone who describes herself as at Victoria worked on the high profile some of whom lost their lives. Victoria “retirement age”, Victoria has a very busy Bottrill trial and inquiries in the early assisted Bruce Corkill QC in representing work life. 2000s. these other women at the Inquiry and “I still have a passion for the work I do The Bottrill Inquiry, and subsequent court subsequently securing settlement for but some days I think I must be absolutely proceedings, focused on the misreading of these women and their families. mad!” ▪ Asking for help is a sign of strength

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

The Law Society is proud to partner with the following organisations in supporting you to keep practising well:

9 PEOPLE IN THE LAW September 2017 · LAWTALK 910

WOMEN IN LAW Eight law firms signed up to Women’s Empowerment Principles

BY ANNA WHALEY

The legal New Zealand Federation of Business The business case for gender equality in work- profession and Professional Women, the New places has been widely accepted in recent years, and yet, is not alone Zealand Human Rights Commission, as we all well know, women continue to be under-rep- – just like Diversity Works NZ and Zonta resented in senior positions in the legal profession. law firms, International District 16. The legal profession is not alone – just like law firms, many other The committee runs regular many other businesses are struggling to achieve gender businesses events related to gender equity equality in the upper echelons of management. Many are strategies in the workplace. In late New Zealand businesses seeking to address this issue struggling June and early July it held events have become signatories to the Women’s Empowerment to achieve in Wellington and Auckland on Principles (WEPs) and are currently vying for recognition gender the implementation of Domestic of their gender equality initiatives in the upcoming White equality in Violence Policies in workplaces. Camellia Awards, to be announced in October. the upper Details of upcoming events and The Principles are a joint initiative of UN Women echelons of more information about the com- and the UN Global Compact. Subtitled “Equality Means management. mittee can be found on its website: Business”, the set of seven principles is designed to www.weps.org.nz empower women in the workplace, marketplace and community to participate fully across all sectors and How many firms throughout all levels of economic activity. are signed up? The WEPs were conceived in 2010, and launched There are currently 53 New Zealand in New Zealand by the Governor-General, Sir Jerry businesses signed up to WEPs. This Mateparae, on 13 February 2012. list includes eight law firms – Bell The seven principles are: Gully, Buddle Findlay, Chapman 1 Establish high-level corporate leadership for gender Tripp, DLA Piper, Ebborn Law, Lane Neave, Simpson equality. Grierson and Woodward Chrisp. 2 Treat all women and men fairly at work – respect Tailored for businesses, the WEPs provide a com- and support human rights and non-discrimination. prehensive approach to achieving gender equality and 3 Ensure the health, safety and well-being of all women give companies concrete ways to work toward gender and men workers. equality. For example, companies can: 4 Promote education, training and professional devel- • Sign the CEO Statement of Support for the WEPs and opment for women. lead by example. This is a perfect example of principle 5 Implement enterprise development, supply chain and one – establishing leadership for gender equality. marketing practices that empower women. • Use the seven principles to assess company policies 6 Promote equality through community initiatives and and programmes. advocacy. • Develop an action plan to integrate gender into exist- 7 Measure and publicly report on progress to achieve ing reporting mechanisms by identifying benchmarks gender equality. and indicators. The WEPs are promoted in New Zealand by the New • Communicate progress to stakeholders and take on Zealand WEPs Committee. The Committee, chaired by board the WEPs’ reporting guidance. Vicky Mee, is made up of representatives from the UN • Connect with fellow businesses and other stakehold- Women National Committee Aotearoa New Zealand, the ers to raise awareness about the WEPs and promote

10 their implementation. House in Wellington on Suffrage To learn more about the WEPs, • Share good practices and lessons Day, 19 September. including how to sign up, please learned with others. The NZ WEPs Committee also see www.weps.org.nz, or contact • Support the WEPs initiative. encourages eligible signatories the NZLS Wellington branch to enter the Global WEPs CEO Women in Law Committee (www. The White Camellia Leadership Awards – with nomi- shirleysmithaddress.org). ▪ Awards nations opening soon. Two New The annual White Camellia Awards Zealand CEOs have won this pres- Anna Whaley  anna.whaley@ celebrate the work of WEPs signa- tigious award – Andrew Thorburn dlapiper.com is a solicitor with tories in achieving gender equality (BNZ) in 2013 and Symon Brewis- DLA Piper and a member of the in the workplace. All companies Weston (Sovereign Assurance) in NZLS Wellington branch Women which have been signatories of the 2015. in Law Committee. WEPs for a full calendar year are each sent evaluation surveys in July. The surveys are administered and analysed by Dr Gail Pacheco, a Professor of Economics at AUT and director of the New Zealand Work Research Institute, on behalf of the New Zealand WEPs Committee. Responses to these surveys form the basis for the New Zealand WEPs Committee’s judging of the White Camellia Awards, which will be presented by the Governor-General Dame Patsy Reddy at Government

11 NZLS AT A GLANCE September 2017 · LAWTALK 910

NZLS AT A GLANCE

New Act an important milestone

1 September 2017 is a date Areas of Practice at page 68). Most of New Zealand’s to celebrate in legal history. legal profession will have already become familiar with It is the day the Contract what will become one of our most-accessed pieces of law. and Commercial Law Act The historical aspect comes because this is the first 2017 came into force in an ever revision bill to be passed. The Legislation Act 2012 important step forward in the enabled the preparation of revision bills. These may regulation and accessibility of revise the whole or part of one or more Acts and omit our commercial law. redundant or spent provisions as well as making changes Agreements and contracts in language, format and punctuation and any necessary between parties are a main- repeals. stay of commerce, along with A three-year statute revision programme was pre- regulation of the way business sented to Parliament in December 2014 by the Attorney- is carried out and consumers General, Hon Christopher Finlayson QC. The new Act are protected. Clarity is is the first fruit of this, and also the first major statute essential. However, until now law revision exercise by anyone since 1908. much of our commercial and A revision bill must not change the effect of the law, contract statute law has been and the new Act contains no new policy or substantive scattered around a number of law changes. One law firm has cleverly described the rather old pieces of legislation. Contract and Commercial Law Act 2017 as being like The Sale of Goods Act 1908, the a “greatest hits” album – a compilation of old tracks, Mercantile Law Act 1908 and digitally remastered for modern day application. the Frustrated Contracts Act The Act is an important milestone in the develop- 1944 were all well past superannuation age. ment of an effective 21st century approach to legislation Now, instead of 12 separate Acts, we have one piece review. The Attorney-General can be thanked for the of legislation written in plain English and with modern way he has brought us to this stage, beginning with the punctuation and layout. It’s rather long, at 347 sections Legislation Act 2012 and moving through to the revision and in six parts, but the law is now in one place and programme. An accessible and understandable statute easier to understand. book is a key ingredient of an accessible justice system. Commercial law is, of course, the most commonly We have now taken a big step closer. ▪ practised field of law in New Zealand (see Spotlight on Nerissa Barber New Zealand Law Society Vice-President, Wellington.

audit programme. In comments to Legal aid audit NZLS has supported the objec- the ministry, NZLS says it agrees tives of changes proposed by the that the proposed changes will policy changes Ministry of Justice to the legal aid remove the inference that on-site audit policy, to enable greater use audits are solely associated with supported of on-site audits. The changes would serious quality concerns, as it the enable more flexible use of on-site current practice under a special audits within the standard annual audit. ▪

12 LAWTALK 910 · September 2017 NZLS AT A GLANCE

NZLS Advisory on character assessment process

After receiving many inquiries the Lawyers and Conveyancers Act Proposed LCRO from the public, lawyers and the 2006. The advisory (on the News media about comments by Green and Communications section of process changes Party MP Metiria Turei, the Law the NZLS website) says if a lawyer Society released information on the not in practice had been admitted welcomed process and character requirements without disclosing a crime which for someone who wants to be admit- subsequently came to light it would ted as a barrister and solicitor. The be expected that they would declare NZLS says proposed changes in the law governing role of the Law Society in the admis- the matter if they later applied for the Legal Complaints Review Office (LCRO) in the sions process is to assess the char- a practising certificate. Lawyers Tribunals Powers and Procedures Legislation Bill are acter of the candidate. Candidates holding a current practising cer- essential. A statement from NZLS President Kathryn must be a “fit and proper person” tificate should advise NZLS of any Beck on the introduction of the bill in early August and the considerations for deciding convictions immediately and not said over 500 applications remain active with the on this are set out in section 55 of wait until renewal. ▪ LCRO and it can take up to three years for a decision to be made. “The backlog of cases before the LCRO must be fixed. It (not just an interpretation matter) is extremely stressful for all those people – lawyers and NZLS the court must consider the wider clients – who are waiting for a resolution,” Ms Beck said. issues in relation to the public inter- She said the bill will give the LCRO new powers to submits est in the context of the lawyer’s hear appropriate matters on the papers and to strike out fundamental obligations. meritless complaints. The Law Society has advocated on lawyer- Arguments against upholding the these amendments for some time and it is pleasing that Joint Action Funding decision and in changes are on the way, Ms Beck said. litigant favour of a lawyer-litigant exception “With an election coming and the bill still to be referred include that a lawyer has a special to a select committee and considered by Parliament, it is exception role as an officer of the court with clear that this will not be an overnight fix. It is, however, specific privileges and obligations. a start to mending something which has been broken The lawyer should therefore be enti- for several years.” ▪ The acting President of the tled to recover not only reasonable Court of Appeal invited NZLS to expenses and disbursements but appear as an intervener in an appeal, costs as well. McGuire v Secretary of Justice. This The arguments supporting the Law Society touched on matters addressed in decision are that the exemption Joint Action Funding Ltd v Eichelbaum dates from a time when the backs minors’ [2017] NZCA 249 where the Court of approach to litigation and costs Appeal held that the lawyer-litigant was different. Given the role of the marriage consent exception in the award of costs no lawyer as independent and as an longer applied in New Zealand in officer of the court, the exception requirements relation to High Court matters. This could undermine the administration is now the legal position as that case of justice and confidence in the legal was not appealed. profession. A Law Society submission on the Marriage (Court Counsel for NZLS appeared to This issue ofLawTalk contains an Consent to Marriage of Minors) Amendment Bill says it assist the court and outlined the argument in favour of the position supports the bill’s objective of protecting against forced arguments for and against support- before the Joint Action Funding marriage by requiring Family Court consent to the mar- ing the lawyer-litigant exception. judgment. (See “Court costs: End riage of minors. The requirement for judicial sanction The judgment in Joint Action of the lawyer-litigant exception” at is a desirable step in preventing forced marriages and Funding Ltd was limited to an page 49). The permanent Court also consistent with New Zealand’s obligations under interpretation of the High Court may well decide that it is not nec- the UN Convention on the Elimination of All Forms of Rules. The NZLS submission agreed essary to decide the wider question, Discrimination Against Women, the submission says. with the court’s reasoning. If the particularly given that Joint Action NZLS says the bill places an additional administrative lawyer-litigant exception was to Funding Ltd is such a recent decision. and cost burden on those aged 16 and 17, but it agrees be considered by the permanent The Court of Appeal has reserved its with the New Zealand Bill of Rights Act 1990 officials’ court as a matter of wider principle decision. ▪ advice that this is justifiable.▪

13 GENERAL ELECTION 2017 · COVER September 2017 · LAWTALK 910

As an organisation at the forefront of law General reform, the New Zealand Law Society has a major interest in presenting the policies and proposals for changes in New Zealand’s justice system. Parties Election which are registered to contest the 23 September General Election were sent five questions related to the justice sector on 20 June. A word limit of 200 2017 words per answer and a deadline of 7 August for responses were set. Reminders were sent where necessary and the deadline was extended to enable as many responses as possible. The MANA Movement was the only party contacted which failed to provide responses. The Ban1080 Party replied that “none [of the questions] seem to apply to us.” To ensure the presentation is as fair as possible, there was a ballot for the answer publication order for each question. The abbreviation registered with the Electoral Commission (where available) has been used to identify parties in each response. Responses are reproduced as received, with obvious spelling and other errors corrected.

when one simply gets dropped off compensation where possible. What are your party’s home after committing a burglary, • The middle third, after success- key objectives in there is no disincentive, so crime ful completion of the first stage, 1 continues. would be spent in meeting the the justice portfolio The Conservative Party is also prisoner’s educational needs at and how do you plan to committed to lowering the age of the level they are at to prepare offending for all charges, through them better for re-entry into meet these objectives? the Youth Courts, to 12; require society. repeat offenders to attend 1 year at • The final part of their term, after an age appropriate boot farm facil- successfully completing stage Conservative Party ity, and an overhaul of the youth two, would be an open prison, court system, in order to address where the prisoner works in a Reducing truancy, taking the prob- issues such as time frames for sen- normal job in the community but lem off police so they can deal with tencing, increasing timeframes for lives in a secure facility. Wages more serious crime by re-establish- Youth Court plans and increasing earned would pay for their keep ing truancy departments in schools. the maximum community services and an allowance would be paid If we can keep young people in sentences. to the prisoner. schools it will reduce youth crime. The Conservative Party would • Upon release there would be A tougher stance on youth crime, like to see a three stage sentencing close monitoring and follow-up to especially for first-time offenders. system in place. ensure rehabilitation is effective. This would include a major review/ • The first third of a prisoner’s overhaul of the Children and Young term would be served doing United Future Persons Act 1989. The consequences meaningful work in the prison. must outweigh the benefits, but Any proceeds could be used for • Preventative justice. Crime

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prevented through social invest- ACT Party in these areas and would look to ment and a fair society, free organisations like yours for expert tertiary education and focus on ACT will introduce three strikes advice should it be needed. We just housing and vital social services for burglary, meaning someone don’t want to have policy for policy to ensure people have the best convicted of a third burglary offence sake not really knowing what the support we can give them. gets three years in prison. issues are. We do believe in the • Early intervention for youth. ACT will reward prisoners who rule of law and have been most United Future strongly believes complete literacy programmes and disappointed by the Government’s in the theory of having ‘a fence at driver licensing tests with reduced suggestions of legislating to negate the top of the cliff rather than an sentences. Do the same for prisoners the Ruataniwha Dam High Court ambulance at the bottom’ when who volunteer to teach in these decision. The Outdoors Party will it comes to dealing with young programmes. be standing a number of candi- offenders or at-risk youth. Scrap red tape that stops ordinary dates and contesting the party • Expand the Social Workers in New Zealanders from volunteering vote emphasising our experience Schools Programme beyond in prison education and rehabilita- and knowledge of the environment. decile 1-3 schools. tion programmes. • Resource alternative education ACT has always been committed Aotearoa Legalise providers to work with at-risk to tackling crime and bureaucracy Cannabis Party youth who have dropped out of in the justice sector, we believe mainstream schooling. we need to be smarter on the core The Aotearoa Legalise Cannabis • The smooth running of our court, drivers of crime and put the focus Party exists to legalise cannabis prison and probation systems is back on victims. Rehabilitation of for R18 recreational, affordable crucial if we are to successfully offenders is also vital in slowing the medicinal, and industrial purposes; manage the implementation of pace of recidivism that is putting to empower people to work together justice in New Zealand. immense pressure on communities. for peace and true justice; and to • Prioritise and expand restorative We need to be smarter at using institute a proper balance between justice programmes as a priority police resources. Too much police the power of the state and the rights response. time goes into chasing minor of the individual. We plan to meet • Repeal the Three Strikes Law. traffic offences and petty drug use. these objectives by standing in the • Reduce recidivism. The major- Taxpayers fund police to actually elections to raise the issues and ity of inmates in New Zealand solve burglaries and prevent vio- encourage other parties to adopt prisons are repeat offenders lence – not to play nanny state. cannabis law reform. or are future repeat offenders. United Future is committed to Internet Party Green Party reduce the rate of recidivism. This does not mean that we are In our Criminal Justice Portfolio we The Green Party will work towards soft on crime, rather we want have a position to move the direction an Aotearoa in which human to stop more crime from being of the justice system to becoming not rights are respected and promoted committed. only fair and balanced but also more and a justice system that focuses restorative and evidence based. We on reducing crime and involving National Party plan to do this by increasing, over communities in restorative justice time, the usage of non-custodial and If we truly want to reduce crime The National-led Government con- rehabilitative approaches used by and victimisation, we must address tinues to be committed to reducing the courts based on international inequality and marginalisation. We crime and reoffending and tackling evidence and, ultimately, the best know that children who grow up in family violence. We’ve introduced practices used. We also want to make poverty are more likely to engage a number of measures to address sure that once a prisoner is released in criminal activity. We can’t ignore these issues, including: they will have ample access to jobs, those that have already walked that • Setting Better Public Service tar- education, housing and other ser- path but we must do our utmost to gets to reduce crime and reoffend- vices which is aimed at encouraging prevent more from following. ing, which has seen total crime them to not offend in the future. We Community-based mediation, reduce by 13% and reoffending believe in redemption and hope to restoration and rehabilitation, reduce by 4.3% since 2011, enlighten a movement towards together with a transparent and • Introducing the Family and forgiveness and understanding on fair judicial and legal system, is at Whānau Violence Legislation Bill both sides of conflict. the heart of the Green Party’s justice to overhaul our family violence policy. We believe that the best way laws and, NZ Outdoors Party to keep families and communities • Establishing the Integrated Safety safe is to address the causes of crime Response pilot to improve the way In response to every question we and, where possible, prevent it from we respond to family violence. would say we have no experience happening in the first place.

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Continued 2020 to give a police to population The 1: What are your party’s ratio of 1:450. We would then ensure Opportunities Party key objectives in the future police funding always allows justice portfolio and them to recruit enough officers each Successive governments have tight- how do you plan to year to maintain this ratio. ened bail conditions, lengthened meet these objectives? In the long-term we would like custodial sentences and made to see sentencing move away from parole harder to get; in short, put NZ First arbitrary length sentences and move more people in prison for longer and to a rehabilitation-focused model. relentlessly increased costs. Criminal The costs of using the system must We envisage a multi-disciplinary justice has become too punitive, be reduced to provide greater access sentencing panel would create a sen- which has led to a vicious cycle of to justice, including: tence to give the offender the best an increasing prison population and 1 More use of alternative disputes opportunity to turn their life around rising costs, leaving little money to resolution processes and become a productive member of invest in reducing crime. As a result 2 Providing litigants with better society. Only when the sentencing we have high recidivism rates and means of avoiding delays board is satisfied the offender has a disproportionate share of Māori 3 Providing litigants with improved achieved this outcome will their in prison. Our prison population is means of reviewing the fees sentence end, whether that be before rising and there is no end in sight. charged by lawyers and other or after their original release date We believe that this has to change; providers. given at time of sentencing. prison is not the answer. TOP would Instruct the Law Commission dial back overly punitive legislation. together with the Human Rights Democrats for This approach would free up money Commission to urgently review the Social Credit to spend on better ways of reducing New Zealand Bill of Rights Act to crime – namely prevention, rehabili- broaden its scope. Our key objectives are: tation and reintegration. This will be Reduce the prison population • That all law-abiding people supported by better economic and through the greater use of alter- can live in peace and harmony, social policies to reduce poverty and natives including the wider use of assured of community support inequality, which help drive crime home detention with mandatory and protection from those who rates. The Opportunities Party’s key reporting for approved work or commit criminal acts. objective in criminal justice policy training during the day, and a • A reduction in the number of is to lower the prison population by greater range of non-custodial people needing to use the court about 50% to no more than 6,000 by sentences such as the confiscation system. 2027. This would put us in line with of specific property, larger and long • That those charged with a crime the OECD average for prisoners as a term reparation payments and fines. or those needing issues resolved percentage of the general population. The income and capital eligibility in a court are able to have their thresholds for legal aid need urgent cases dealt with promptly. Māori Party review to allow a much larger section • That the cost of accessing the of the community to get legal aid. court system, and assistance with Our key objective is to dismantle We would establish a group using it, is kept affordable. institutionalised racism within the within the Ministry of Justice to We don’t view justice as just a justice system as a matter of urgent oversee the effective co-ordination, legal issue but as an economic, priority. We also want to implement, funding and delivery of victim social, educational, and moral one. prioritise and expand restorative support services, and ensure that Implementation of our economic justice processes through a kaupapa victim support groups receive ade- policy would see large numbers Māori-based approach, particularly quate funding which reflects both of people lifted out of the poverty in the courts and prisons. the demand for and quality of the trap that leads to crime, higher To achieve our objectives, we services they provide. educational and skills proficiency want to expand iwi panels, Kooti We believe that the priority for achieved by more people, and Rangatahi, Kooti Whānau and reducing youth crime is ensuring greater income sufficiency. Some Matariki Courts across New Zealand all young people are engaged in of the $4.6 billion annually that is and increase the numbers of special- full-time employment. wasted by government on paying ist courts including the AOD Courts, interest on its borrowings from following an evaluation of the cur- NZ People’s Party commercial banks, when it could rent trials underway in the Drug fund that borrowing from its own and Alcohol Treatment Courts in We are very concerned with the central bank without interest, would Auckland. We also want to establish rising crime rate New Zealand is pay for more resources for the jus- more community-led alternatives experiencing at the moment. Our tice system, including greater use to secure youth residences and set key immediate objectives would be of alternative disputes resolution targets to reduce the rates of Māori to boost police numbers by 2,400 by options, and support for victims. over-imprisonment by 30% by 2025.

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Culturally relevant approaches to around then we would be support- prison and crime rates that address ive of increasing its resources. violence in all its forms, reoffending What are your party’s and recidivism will be supported policies in relation to NZ Outdoors Party with the creation of a communi- 2 ty-led fund for initiatives that focus access to legal aid? In response to every question we on prevention of social harm. would say we have no experience Another of our objectives is in these areas and would look to to develop a Māori Pathway for Democrats for organisations like yours for expert Women Prisoners that are culturally Social Credit advice should it be needed. We just responsive to assist in addressing don’t want to have policy for policy the disproportionate number of Our aim is to reduce the number sake not really knowing what the Māori women in prison and we of people needing legal aid. Our issues are. We do believe in the want to initiate computers in cells approach to that is covered briefly rule of law and have been most to assist with literacy and numeracy. in our response to question one. disappointed by the Government’s We want to introduce whānau Meantime we would raise the suggestions of legislating to negate facilitators to ensure whānau are income threshold for access to legal the Ruataniwha Dam High Court informed and able to discuss all aid to $25,000 with corresponding decision. The Outdoors Party will their choices and the consequences increases to other levels. Fixed fees be standing a number of candi- (legal and non-legal) in the Family for lawyers undertaking legal aid dates and contesting the party Court system. work will be reviewed. vote emphasising our experience and knowledge of the environment. Labour Party Aotearoa Legalise Cannabis Party Internet Party Labour believes in a vision of a just society with safe and inclusive com- The ALCP do not have a specific Currently we do not have any final- munities. Central to achieving this policy in relation to legal aid but ised policy documents on legal aid. vision is a justice system which is believe all people should be able to However, we have in development a humane, accessible and effective. have access to legal aid when there plan to install an act regarding Rape With a view to achieving this is a need. The ALCP would like to see Crisis funding. This is because the vision, Labour will have a focus this also available for community trauma from a rape crime can be on crime prevention and reducing groups dealing with local or national so severe that it can affect work- recidivism, along with better access government. load and the capacity to be able to to justice for people regardless of their continue working. From this the means. Crime prevention policy was Labour Party programme will be funded in a way addressed in part with our commit- that victims will be able to procure ment to increasing police numbers Public access to good legal advice an effective lawyer and there is also by 1,000. Reducing recidivism will be and representation is crucial to room in development for an allow- addressed in our full manifesto when having a fair society and main- ance during the first few weeks of it is released but we will invest in taining the rule of law. Cost saving post trauma. In essence, we support prison programmes that rehabilitate measures put in place in the last the need for victims to have effec- offenders and give them options for nine years have made the legal tive lawyers in cases but have not the future, and invest in rehabilitative aid process overly complex and investigated and researched how to alternatives for more minor offences. unreachable for many that need implement this further. Those working in the justice it. Quite simply, that should never system know that many New be the case. Equal access to legal NZ First Zealanders have trouble access- assistance is a cornerstone of our ing or qualifying for legal aid, the justice system. The income and capital eligibility public defence service is not funded With this in mind, Labour will thresholds for legal aid need urgent right, and community law centres be addressing funding issues and review to allow a much larger section frequently struggle. These are some the thresholds for access to civil of the community to get legal aid. of the areas we will be focusing on legal aid. Our Justice Manifesto will in our full Justice Manifesto. outline this in further detail. The Additionally, solutions to the Opportunities Party problems faced in the justice system NZ People’s Party require a holistic view. Labour will The Opportunities Party is a new have a focus on the underlying We don’t have a specific policy party and has no policies specifically causes of crime such as poverty, addressing legal aid, but if increas- on legal aid. We are committed to inequality, and poor educational ing access to and resources of legal the right to a fair trial and are con- outcomes. aid helps offenders turn their lives cerned that this right may have been

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Continued and we support access to legal aid 2: What are your party’s for all those who require it. policies in relation to We understand there are chal- access to legal aid? lenges with the current system and we would review the legal aid compromised by the Government’s system to identify changes to ensure What are your party’s 2010-13 legal aid reforms. We note those who require legal aid have views on proposed with concern evidence that crimi- appropriate access to it. 3 nal aid lawyers’ remuneration has law changes to improve reduced by a third since the mid- ACT Party the legislative response 1990s and that lawyers are exiting this market. We are also concerned Legal aid is a vital service; every to family violence? that legal aid for civil cases may be Kiwi deserves fair representation underfunded. The Government’s to navigate the sometimes com- reforms were driven by costs. Justice plex justice system. By driving Conservative Party sector costs have been growing criminal justice reforms and sim- faster than inflation for years. plification of the court system we We are currently not familiar with Overall our criminal justice policy can tackle the root causes. ACT these proposed law changes but are aims to improve the government’s supports current legal-aid frame- seriously concerned about family fiscal position by reducing the cost works but understands the chal- violence and want to explore ways to of prisons (now verging on $1 bil- lenges these services are facing, see families supported through their lion a year). It will be easier to find legal aid should be at the forefront struggles so that relational needs money to support the right to a fair of a wider conversation on justice which cause such violence are met, trial if the prison population was reform. relationships are strengthened, and smaller. In addition, our economic families become more functional. policy aims to reduce economic ine- Conservative Party quality and improve the economic NZ People’s Party outlook so that there are fewer We do not have a policy to change people with “insufficient means” anything here at present. Family violence is a big problem for to go to court. Finally, the legal New Zealand and we are very sup- profession has actively responded Green Party portive of the changes to strengthen to this problem by having the gov- the police and courts ability to react. ernment’s policy judicially reviewed We are committed to a fair system Changes like police being able to and just this year launching Legal which upholds the principles of, and take statements at the scene with Aid Providers Aotearoa. access to, justice, equality before the use of their smartphones to avoid law and natural justice, which helps any undue stress for the victim are United Future to build and maintain public confi- the type of changes that seem minor dence in the legal system. We feel but make a big impact. Ultimately, We think everyone should be able it is important that, where possible, we need to change the culture to to access legal aid, we don’t have people should have a say in who stamp out domestic violence, help any policy to change the state of represents them. those at or below the poverty line legal aid but are firmly behind its We have vigorously opposed and those with addictions whose principles. the National Government’s cuts families are most at risk from to legal aid and their closure of domestic violence. National Party regional legal aid offices as they imperil the right to a fair trial for National Party We have not announced new policy New Zealanders who are most vul- on legal aid, however in Budget nerable. In Government we would We know that legislation alone 2016 we announced that we would make well-funded, professional cannot solve New Zealand’s horrific increase eligibility for civil and and accessible legal aid a priority rate of family violence, however family legal aid to improve access within our wider efforts on justice the Family and Whānau Violence for low-income New Zealanders. We reform. This would include reform Legislation Bill is a cornerstone remain committed to ensuring that to enable Maori groups, community element in how we tackle the issue. those who need legal aid are able organisations and community class The bill overhauls the 20-year-old to access it. actions to be eligible for legal aid Domestic Violence Act and imple- funding. ments our reforms aimed at break- Māori Party Access to legal aid is a fundamen- ing the cycle of family violence and tal component of the wider right of reducing the harm. These reforms The Māori Party believes that every- access to justice and it should be are the beginning of a new inte- one has the right to access justice given the attention it deserves. grated system but even on their

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own they have the potential to protection orders. We note that the significantly reduce family violence. United Future bill will make the process easier for The new offences and changes to an individual to obtain a protection protection orders alone are expected Advocate for government agencies order, but we worry about whether to prevent around 2,300 violent and NGOs to engage with the differ- it will be easier for authorities such incidents every year. ent ethnic communities and provide as the police to enforce breaches of them with culturally appropriate protection orders. We also have con- The services to address family violence, cerns about the financial capability Opportunities Party work within the legal system to of many people to obtain protection ensure that support is given to orders, which the legislation does The high rate of family violence victims as a first priority. not address. in New Zealand is shameful. We We also believe that the bill commend the Government for Māori Party should have addressed Family Court addressing the issue. Many of their processes when deciding parenting proposed law changes appear good, We support the need for legislative arrangements. Specifically, we especially those aimed at providing reform to ensure protection orders believe the court should be required more effective means to help perpe- provide the level of protection that to consider whether a protection trators change their behaviour and is intended by them, that police order has been made when deciding connect them and at-risk families safety orders are enforceable and parenting arrangements. to services. We are concerned, effective and that victims can obtain Labour hopes that the select however, that these services may support as soon as they require it. committee process will be able to not be properly funded. Family violence is all too perva- fix some of these shortcomings. The Opportunities Party’s policy sive throughout society and research is to reinvest money saved from has identified that those living with Internet Party a smaller prison population in the most harmful levels of family developing exactly these kinds of violence are also often experiencing We believe that this is long over- services. We are also concerned huge levels of disadvantage and due and is a step forward to help- that there may not be enough civil discrimination. In that regard, the ing and supporting the victims of legal aid to support the bill’s policy. Māori Party supports measures in family violence. Based on research Moreover, the more punitive aspects the proposed law changes that make done it is simply necessary that in of the bill – creating new offences access to better support for victims the future specific terms could be and making ‘safety’ the primary easier. amended so that perpetrators of consideration in bail and central The prevention of violence within family violence don’t try to weasel to parenting and property orders – whānau is complex and for many their way out by using the word- appear to us to continue a criminal Māori the impacts continue to be ing of the law in question to save justice strategy that has so far failed destructive and significant. them. Also, attention could be put to produce good outcomes. The Māori Party believes that towards separating the parties In addition, we draw attention to agencies need to change their in cases where there are children The Opportunities Party’s policies response to family violence and any involved. Perhaps imposing that on tax and families, which would response for whānau Māori must the child in a family situation decrease inequality. International recognise a strengthening of iden- should have their own lawyer to evidence suggests a relationship tity, connectedness and belonging represent them so that the child between violence and economic to Māori and cultural practices and in question does not feel that they inequality, so the high rate of family traditions. have to pick a side in a conflict violence in New Zealand may be in between two parents as an exam- part explained by New Zealand’s Labour Party ple. It is ultimately in how the high levels of economic inequality. definitions and phases are spelt, Labour has supported the “coercive control” for instance ACT Party Government’s Family and Whānau needs to be defined very carefully Violence legislation. Labour has in the act to prevent loopholes ACT supports current government been encouraged by the genuine from appearing later on. proposals and initiatives to crack- cross-party approach the Minister down on family violence, however, of Justice took during the early Aotearoa Legalise issues such as housing an inequality consultation stage. The bill makes Cannabis Party are directly related to family break- some long overdue changes to down. Economically empowering enhancing the safety of victims of Ending prohibition of cannabis will families and facilitating strong family violence. help destress society, reducing crime development and growth is key to We do have some concerns with and saving money. This tax saving curtailing crime and disorder in our aspects of the bill, however. In of hundreds of millions every year communities. particular, we have concerns about will then be available for improving

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Continued the vulnerable children infor- 3: What are your party’s mation sharing scheme in the views on proposed law Children, Young Persons and Their changes to improve Families Legislation and support How would your party the legislative response the Society’s submission that the improve the courts to family violence? approach taken in the family vio- 4 lence bill, with some amendments, and court processes? housing, health, increase welfare is preferable. payments and in general reducing We also support the Society’s poverty and violence. Our policy for submission that the Sentencing Green Party a lucrative and environmentally safe Act 2002 be amended to include cannabis industry including medic- a principle that victim safety, There is a need to streamline court inal, recreational and industrial, including the safety of any child, is processes, in part to reduce the will boost the economy by billions a mandatory and primary consider- unacceptably long delays that are of dollars, creating jobs and tax ation when the court is determining too often experienced in getting revenue. Poverty and alcohol are the appropriate sentence in family cases heard. Part of the problem the two major driving forces for violence cases. would seem to lie in the reduced violence. Hemp products such as resourcing of courts due to ill-ad- biodegradable plastic bags, paper, Green Party vised cost-cutting measures, and building materials, textiles, biofuel the loss of experienced staff that has and food. Hemp seed, being one of Our family violence laws have been a consequence. It is also clear the most perfectly balanced foods been long overdue for an overhaul. that experiments with centralising for humans, is the way to go for a The Green Party is supportive of file management have failed, and happier sustainable future. the proposed bill on balance, but should be abandoned. would have wanted it to go further. The ‘e-bench’ project has stalled, NZ Outdoors Party The Green Party is calling for the and there needs to be an analysis reinstatement of the Bristol clause, of why that project failed so that In response to every question we which would refuse abusive former a programme of developing the would say we have no experience partners’ access to their children means to ‘digitise’ can proceed in a in these areas and would look to until the children’s safety was way that improves the accessibility organisations like yours for expert assured. and efficiency of court and judicial advice should it be needed. We just It would have been preferable processes. don’t want to have policy for policy for the Government’s overhaul to sake not really knowing what the recognise the dynamic between inti- Democrats for issues are. We do believe in the mate partner violence, and domestic Social Credit rule of law and have been most and other forms of family violence. disappointed by the Government’s Police do not record the victim’s We have not carried out a compre- suggestions of legislating to negate relationship to the offenders in the hensive review of the legislation the Ruataniwha Dam High Court majority of physical and sexual that came into operation in March, decision. The Outdoors Party will assaults against women. Research but generally support the legisla- be standing a number of candi- showed the vast majority of assaults tion’s efforts to improve the courts dates and contesting the party on women were carried out by part- and processes. We think the Courts vote emphasising our experience ners, ex-partners, family members & Tribunals Enhanced Services Bill and knowledge of the environment. and others known to them. Knowing contains some useful enhancements this information would enable a to the current system. We consider Democrats for more targeted response. the Family Courts to be underfunded Social Credit The inclusion of animal abuse in and would address that as a priority. the new definition is good because We view the rise in family violence we know that threats of harm to NZ Outdoors Party as a reaction to a society under pets are a frequent control tactic stress, especially financial stress. utilised by perpetrators. A key over- In response to every question we Our economic policy seeks to sight in the bill is how these changes would say we have no experience address some of those problems. will lead to increased demand for in these areas and would look to Legislation to improve the way services. This will put further pres- organisations like yours for expert family violence issues are dealt with sure on already stretched agencies advice should it be needed. We just in the justice system is imperative. such as Women’s Refuge. don’t want to have policy for policy We recognise the Law Society’s sake not really knowing what the concerns regarding the overlap NZ First issues are. We do believe in the between the family violence rule of law and have been most information sharing scheme and Supportive. disappointed by the Government’s

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suggestions of legislating to negate NZ First Māori Party the Ruataniwha Dam High Court decision. The Outdoors Party will Review the Disputes Tribunal to In addition, to the answers provided be standing a number of candi- improve its performance by encour- in question one, the party would: dates and contesting the party aging the appointment of legally • Establish Kooti Māori that encour- vote emphasising our experience qualified referees, and ensuring the ages kaupapa-based approaches and knowledge of the environment. adequacy of training for non-legally to dealing with whenua and qualified referees. Much greater whānau, Internet Party use of online documents must be • Introduce therapeutic-based achieved, using secure and tracka- treatment and courts that invest We currently support an amend- ble systems, and the greater use of in long-term reintegration and ment to the Sentencing Act 2002 technology to reduce the amount rehabilitation post-release, to promote and shift more towards of court hearing time. • Set a target to reduce the prison community-based sentences. NZ First seeks real and enduring muster by 25% by 2025, Specifically, we believe that Section solutions to offending. These require • Repeal the Three Strikes 15A(1)(b) of the Act in question to programmes to curb anti-social Legislation, Sentencing and refer to a specific period of three behaviour and remove economic Parole, and Victims Rights Acts, years instead of the term being deprivation, consistently over time. • Repeal the Bail Amendment Act used “short-term sentence”, which We would seek the establish- to reduce the level of people on as it stands means two years. This ment of a Criminal Cases Review remand, is because we believe that a judge Commission. • Review sentencing laws to restrict should have more freedom to decide We would ensure that adequate prison to an option of last resort, whether a community-based sen- counselling is reintroduced in the • Provide more funding and tence is more appropriate and will Family Court. resources to support Marae-based gain a better outcome for the crim- New Zealand First would: youth court and restorative jus- inal on trial and right now a judge • Ensure an accused can be re-tried tice programmes, cannot exercise discretion when for a crime where it is proved • Repeal the Electoral (Disquali- a sentence of two more years is that an acquittal, or a change to fication of Sentences Prisoners) required, since imprisonment must a lesser offence, has resulted from Amendment Bill, be imposed in this case. intimidation perjury or the brib- • Place a moratorium on the build- We also support the Law ery of a victim, witness or juror, ing of new prisons and expand Commission’s recommendations • Remove concurrent sentences the provision of Whare Oranga provided by Yvette Tinsley and for those guilty of rape and for Ake and Māori Focus Units in Elisabeth McDonald in considering those who commit offences while existing prisons, alternative trial process in sexual on parole, on bail, or whilst in • Support whānau facilitators assault cases. For instance, we sup- custody, to work closely with iwi and port the idea of specialist judges and • Strengthen monitoring require- hapū within the Whānau Ora counsel involved in sexual assault ments in relation to communi- Commissioning Agencies, cases which will make the outcome ty-based sentences, • Provide funding to run te reo of cases much more clear. However, • Review the adequacy of max- Māori and tikanga programmes we oppose the recommendation to imum sentences for serious in all prisons and programmes to make legislative changes to allow criminal offences, support prisoners reintegrating finders of fact to draw adverse infer- • Increase the use of mandatory back into the community, ences from a defendant’s failure to minimum sentences for violent • Expand the Passports to Life initi- be a witness. offenders. ative to all paroled offenders and prisoners on probation to support NZ People’s Party Aotearoa Legalise them to get a driver’s licence, Cannabis Party identification, bank account or CV. Any traffic offence currently dealt with by the courts where the max- Ending the war on all drugs and Labour Party imum punishment is a fine would treating drug use as a health issue be moved to an automatic fine by not a criminal matter would greatly Courts and court processes are cru- police. Removing these sort of cases unclog the courts with spin off ben- cial to the functioning of the justice from the court system would help efits. For example, a drug addict will system, so it is important that they to unclog it. We are also supportive not have to commit a crime to feed are effective, efficient, accessible, of the move to have the “right to their drug habit. and responsive. silence” removed. Juries should be The 2011 Law Commission Report Labour is always open to con- able to take into account when an basically stated that cannabis use is sidering proposals to improve the accused has refused to cooperate a health issue not a criminal matter. court system and its processes. We with police. will also invest in evidence based

21 GENERAL ELECTION 2017 · COVER September 2017 · LAWTALK 910

Continued to affordable and effective access to 4: How would your justice. That means an independent party improve the and adequately funded judiciary. If courts and court everyone is bound by and entitled to processes? the benefit of the law then everyone What are your party’s should be able to go to court to have views on the extension alternatives to the ‘traditional’ court the court determine their rights and 5 system, including drug and alcohol liabilities. Or, when charged with of the anti-money courts and other therapeutic courts. a criminal offence, get a fair trial. laundering legislation Our criminal justice policy would Conservative Party save money by reducing the prison (AML/CFT Act 2009) population, and so relieve pressure to lawyers and other We have no set plan for this but rec- on the justice sector budget. With ognise the need for improvement as some of the money saved we want professions, and mentioned in our Justice Policy. We to expand three successful parts of the timeframe it is would explore any possible options the court system: restorative justice, such as night courts, minor misde- AODT courts and the Youth Court. being worked in? meanours being heard by qualified AODT courts have been a judiciary people other than judges e.g. JPs led project. The main limit on them with specific training, senior law is funding. Over the next two years The students as a practicum, etc we want funds provided to increase Opportunities Party the number of AODT courts from United Future two to seven. We are also want The Opportunities Party is all about to raise the Youth Court age to 20 fairness and evidence-based policy. Actively promote non-judicial case so that 14 to 19 year-olds are dealt We are a new party and have not resolution (mediation or arbitration) with in the way currently that 14 to completed sufficient research on for civil cases, making it a compul- 16-year-olds are dealt with. the extension of the anti-money sory first step prior to court action. laundering legislation to lawyers Support alternative and specialist National Party and other professions to have courts (like drug courts). assessed the evidence on this com- Ensure cases are heard in a The National-led Government has plex topic. Therefore, at present The timely manner, including ensuring introduced a number of measures Opportunities Party has no views sufficient funding for analysis of aimed at improving the courts on proposed anti-money laundering evidence. and court processes, including the legislation. If we are in power and Improve co-operation between national rollout of audio-visual links the issue arises we will review the New Zealand and Australia to and a single point of contact for evidence, and come to a position. manage citizens that commit crime court customers to call. It is impor- overseas, including notification at tant to remember that much of the National Party sentencing, and legislative coop- practise and operation of courts sits eration to ensure that parole and with the independent judiciary and The extension of anti-money post-sentencing regimes may be Government’s role relates primarily laundering legislation is necessary enforced on repatriated nationals. to the legislative frameworks under in order to protect New Zealand Monitor, review and update which they operate. businesses and our reputation as the Department of Correction’s being a good country to do busi- Transgender Prisoner policy to ACT Party ness. It strikes the right balance reflect international best practice between combating crime, mini- about placement, care and manage- ACT believes in a justice system that mising the cost of compliance and ment of trans prisoners to ensure targets violent offenders and puts meeting international obligations. their right to safety, and access to victims at the forefront of focus. Businesses will have a period of health services and rehabilitation ACT believes specialist courts such time to prepare for the changes. on an equal basis as others. a drug courts are a great way to The Government will provide guid- help non-violent offenders onto the ance and information to help them The route of rehabilitation and to relieve understand, prepare for and comply Opportunities Party pressure on traditional courts. It has with the law. always been a priority of the ACT The Opportunities Party has no party that core government services Democrats for specific policies on improving the such as police and courts should be Social Credit court process. However, we are the main focus of politicians – the committed to the rule of law and wider justice apparatus should work We agree with the extension of the right of every New Zealander for families, not bureaucrats. the legislation to lawyers and

22 LAWTALK 910 · September 2017 COVER · GENERAL ELECTION 2017

other professions, but do share area, had concerns about the Aotearoa Legalise the concerns of the Law Society timeframe they had to comply Cannabis Party about the timeframe being set for with the legislation and this was the legal profession to comply. something discussed at length at Money laundering and corruption In our view, legal firms are much select committee. undermine civil society, breaks more likely to have systems down trust and increases tax for and expertise to implement the Conservative Party those at the bottom. The sooner this requirements than, for example, can be addressed the better. real estate agents. We see the We have no particular view on this timeframe being applied to an matter. Māori Party accounting practice (not later than 1 October 2018) as not unrea- NZ People’s Party The Māori Party supports the sonable for legal firms. extension to lawyers and other We are fully supportive of efforts to professions although we acknowl- Green Party strengthen the AML/CFT Act. edge the special nature of the lawyer-client relationship and the The Green Party played a key role Internet Party tension between client confidenti- in exposing the shady way New ality and the sanctity of privileged Zealand foreign trusts were being The concept is appropriate and we discussions with the need to file used to facilitate money laundering understand the fundamental aim suspicious transaction reports. The and crime overseas. behind extending this legislation Māori Party supported clarity to the We have also been critical of to tighten the grip on money laun- law profession to enable them to the National Government’s lack dering and reducing the amount develop compliant practices that of action on money laundering of of loopholes the real perpetrators also met their ethical obligations many years. The OECD’s Financial can get through. However, ulti- to their clients. Action Task Force was critical mately we do not support the cur- We did note that the bill of delays which resulted in New rent state of the Act as a whole. Its proceeded with a shortened Zealand being struck off the ‘White purpose is sound but it has been opportunity for input and public List’ list of non-corrupt countries by proven to be misused against jour- consultation which would not the EU in 2010 – adding to the cost nalists and other dissenters rather have been useful for everyone. We of doing business there for New than against money launderers. also noted the proposed timing of Zealand companies. This means that the wording of the implementation for the three groups We have also been critical of the law is tailored in a way that allows of professions – and supported a delays in bringing the second phase corrupted officials to press against date that would capture all three of anti-money laundering legislation these journalists using the exact professions at the same time. into Parliament. We are calling for wording of the Act in question. early passage of the legislation, but It is important when developing United Future recognise that there needs to be ade- acts that the line between theory quate time for the legal profession, and reality is made clear and in We supported the amended legisla- accountants and others subject to the reality we are in, protections tion in parliament, we want to see it the legislation to be able to have should be extended to journalists enacted as soon as possible. advance notice of the regulations, so that are simply reporting the facts they can undertake the training and not being directly abused by this NZ Outdoors Party development of systems required Act. In theory a continued exten- for implementation. sion sounds great to stop money In response to every question we laundering from lawyers and would say we have no experience Labour Party certain other professions but take in these areas and would look to care in the development not to organisations like yours for expert Labour has supported the Anti- expose more loopholes for wrong- advice should it be needed. We just Money Laundering and Countering doers on all sides to exploit in this. don’t want to have policy for policy Financing of Terrorism Amendment sake not really knowing what the Bill which recently passed its third ACT Party issues are. We do believe in the rule of reading. We believe it is important, law and have been most disappointed as the Ministry of Justice advised, We are satisfied with the current by the Government’s suggestions of for professional services such as government settings and targets. legislating to negate the Ruataniwha lawyers and accountants to be Dam High Court decision. The Outdoors a part of anti-money laundering NZ First Party will be standing a number of legislation. candidates and contesting the party We recognise that submitters, Broadly supportive. No comments vote emphasising our experience and including many from the legal on timeframe. knowledge of the environment. ▪

23 AUDITING · UPDATE September 2017 · LAWTALK 910

UPDATE AUDITING

information for a charity’s funders Company and not and other stakeholders about its financial position and operations. Other standards enable assurance for profit auditing – a to be given or obtained over non-fi- nancial information. For example, the recently revised standard SAE changing landscape 3100 Assurance Engagements on Compliance enables assurance over BY ROBERT a broad range of an entity’s com- BUCHANAN pliance obligations (whether they are of a legislative, contractual, or sometimes by lawyers) but has a other nature). That standard sits Lawyers who advise companies and not for profits defined and constrained meaning under a more general standard on are familiar enough with annual reports, financial under the standards. non-financial assurance (ISAE NZ statements, and auditors’ opinions. Many will also have In brief, assurance should be 3000), which has been recently advised boards and audit committees on the negotia- understood as “an evidence-based revised with a much broader scope tion of audit engagement letters and audit fees, and conclusion” that is designed to of application in mind. Research by the preparation of letters of representation – processes “enhance the degree of confidence the NZAuASB confirms that these which can be highly sensitive in some circumstances. of the intended users” of sub- assurance standards are being But how auditors actually do their work is less familiar ject-matter information. This fits widely used outside the accounting to many. And the nature of what auditors do is also with the purpose of an audit of an profession in New Zealand, either changing rapidly. entity’s financial statements, which as the basis for giving assurance or Auditing is a standards-based activity. Auditing provides “assurance” to the readers as points of reference for assurance standards in New Zealand are promulgated by the New and other users of the statements practitioners’ work. This finding Zealand Auditing and Assurance Standards Board. The (whether they be shareholders or will be of interest to those lawyers NZAuASB, as it is known, is one of two sub-boards of members, investors or funders, who work in the assurance-related the External Reporting Board (known as the XRB), an regulators, or customers) that the space (for example, in the area of independent Crown entity under the Financial Reporting statements fairly reflect the entity’s Resource Management Act compli- Act 2013. (The other sub-board is the New Zealand financial position and performance ance, or as probity auditors of major Accounting Standards Board, which sets accounting and are free of material misstate- procurements). standards.) The standards promulgated are legislative ment. In that sense, an “audit” instruments, subject to disallowance. can be seen as a means by which New Zealand is a The need for statutory audit standard-setting was “assurance” (in that broader sense) “standards taker” resisted in New Zealand for many years. But it became is given or obtained. In common with many countries, necessary with the introduction of regulated auditing But assurance can also be given just as most of our accounting under the Auditor Regulation Act 2011 and Part 7 of the over other types of information. It standards are derived from global Financial Markets Conduct Act 2013 (FMC Act). Auditors can also take different forms – for standards, so too are most of our licensed to carry out audits of “FMC reporting entities” (a example, an assurance opinion can auditing and assurance standards. term which includes listed issuers and a range of other be expressed in either “reasonable” The International Standards on entities) must do so “in accordance with the applicable or “limited” terms. And an audit is Auditing (known as ISAs), other auditing and assurance standards” (sections 416D and not the only means for providing international assurance standards, 416F of the FMC Act). Those standards are set under assurance. Lawyers advising clients and the International Code of Ethics s 12(b) of the Financial Reporting Act, which provides for in the not for profit sector will be for Accountants and quality control the XRB to set standards for the purpose of the Auditor aware of the recent changes to the standards are all set by interna- Regulation Act “and any other enactment that requires Charities Act 2005, which allow tional boards which operate under a person to comply with those standards”. the financial statements of medi- the umbrella of the International In practice, however, the auditing and assurance um-sized charities to be subjected Federation of Accountants (known standards set by the NZAuASB on behalf of the XRB to a “review” rather than a full as IFAC). are also available for, and used in relation to, a wide “audit” (s 42C). Under the applicable As a “standards taker”, and not a range of non-statutory purposes. standards, a review requires a lesser “standards maker” (although with amount of work than an audit (thus some exceptions), New Zealand’s The wider picture – assurance reducing costs to the entity), and approach is to adopt all the applica- The term “assurance” needs explanation, because it is provides a lesser degree of assur- ble international standards without widely and sometimes inaccurately used (including ance. But it can provide helpful amendment, except where there is

24 LAWTALK 910 · September 2017

Lawyers are in a good position to identify the need for New Zealand- specific changes to be made to internationally- derived standards arising from changes in legislation.

a “compelling reason” to amend or strengthen (but not weaken) a standard to reflect local regula- tory conditions and practices. The NZAuASB also has a close working relationship with its Australian equivalent board, which adopts the same approach. And both boards actively pursue harmonisation of their respective standards, in recognition of the single Trans- Tasman market and the need for a common approach to commercial regulation. This approach has been highly successful, and is one of the better examples of provide valuable information for the legislation and corporate govern- the business law harmonisation approach in practice. NZAuASB to apply its “compelling ance practice. A good way of doing The “standard-taking” approach makes complete sense reason” test for changing a standard. this is to sign up to the XRB’s free for New Zealand as a small trading nation in a globalised Lawyers’ inputs can extend more subscription service (see www.xrb. economy. But it also demands an effort to influence the broadly into the interface between govt.nz), which provides regular bul- making of the standards that we adopt. A particular law and auditing. A recent example letins and notices of events. Lawyers focus of this effort is to ensure that the needs of smaller can be found in the changes to the are welcome to attend consultation economies, and small-to-medium entities and auditing regulations governing trust deed events and seminars when they are practices, are not forgotten in the vastness of the global audits, and their impact on the of interest – and to encourage their standard-setting setting process. This is a central plank drafting of deeds (see “Trust deed clients to do the same. of the XRB’s strategic direction as a Crown entity. It audits” at page 37). prompts, in turn, a focus on consultation and engage- I encourage lawyers with clients The changing face of ment with New Zealand constituents, especially when in the commercial, corporate, and auditing and assurance draft international standards and discussion papers are not-for-profit sectors to continue I turn now to the future focus. in circulation and “New Zealand Inc”-type submissions developing their understanding Like all business-related activities are being prepared. A corollary of this process is to ensure of the audit and assurance envi- affected by globalisation and tech- that the NZAuASB is aware of the need for, and can ronment, and its interface with nology, auditing and assurance is make, appropriate New Zealand amendments to the international standards when they are being considered for adoption here. Trusted practice management The XRB and the NZAuASB are keen to involve lawyers in this col- software for NZ lawyers laborative activity – hence, in part, Easy to learn, easy to use. Save time and the motivation for this article. And ! it can make a difference. Lawyers increase profits. That’s what users say are in a good position to identify New: Document management & Internet banking. Free installation and the need for New Zealand-specific training. Visit our website for testimonials from firms just like yours. changes to be made to interna- tionally-derived standards arising www.jpartner.co.nz [email protected] 09 445 4476 JPartner Systems Ltd from changes in legislation. This can

25 AUDITING · UPDATE September 2017 · LAWTALK 910

undergoing significant change. and standard-setters: how should (starting with listed issuers and extending later to other First, a word on technology. assurance be provided over inte- FMC reporting entities with higher public accountabil- It goes without saying that the grated reports, and do the auditing ity). The introduction of key audit matters (or KAMs, as impact of data analytics and the standards need to be re-written to they are becoming known) has by all accounts been use of artificial intelligence has huge accommodate them? These issues well received by investors, as well as by directors and implications for auditors as well as are also under international consid- audit committees. Indeed, many auditors (including their clients. As an obvious example, eration and discussion. the Auditor-General in the public sector) have been using data analytics can remove “early adopters” of the new requirements with the the need for an auditor to design Regulator-driven change agreement of their clients. The Auditor-General’s report processes to obtain “samples” of International standard-setting has on the 2016 Government financial statements provides transactions for the audit (or, put in also been affected by the long- a good example of KAMs and their information value: another way, will enable the auditor term impact of the global financial www.treasury.govt.nz/government/financialstatements/ to check every transaction over a crisis and its implications for the yearend/jun16/15.htm. business period). And auditors are traditional models of auditing. The NZAuASB and the Financial Markets Authority also considering the challenges of Enhancing the quality of audits has are jointly monitoring the first year’s listed entity KAMs auditing new forms of data storage, been a major preoccupation for all closely, and will be publishing results and commentary in particular blockchain (see, for standard setting boards over the later in 2017. example, “Blockchain at slightly past decade. This has been driven More broadly, the international regulator community more than a glance”, LawTalk 908, to a large extent by regulator pres- has been pushing improvements in audit quality. This July 2017, page 42). sure, arising from dissatisfaction has prompted the International Auditing and Assurance In the longer term, the process of with auditor performance in the Standards Board to develop a project examining assurance will be deeply affected by years leading up to the crisis and improvements in audit quality from a “supply chain” the use of artificial intelligence. But concern about the risk of future perspective. This is based on the notion that auditors far from rendering audit as a process corporate collapse. Some fundamen- and their work form only one aspect of the financial obsolete, these changes bring new tal changes to the auditing process information supply chain and its quality; the value of opportunities as well as challenges and its outputs are now starting to an audit is enhanced through interactions with those for auditors and those who set their emerge. responsible for preparing and signing off on financial standards. Perhaps the most significant is the statements, including boards, audit committees, and Another example of the changing change to the form and content of (in some cases, lawyers), as well as with regulators and demands on auditors is the uptake the auditor’s report on an entity’s other stakeholders. The audit quality framework provides of “integrated reporting” (IR), which financial statements. Eagle-eyed a useful lens through which auditors and non-auditors has been recently recognised in the lawyers involved with listed issuers alike can understand and value the audit process. NZX’s new Corporate Governance will have noticed that the standard Code. The product of an internation- audit opinion is now supplemented A concluding comment ally-driven movement by users of by a range of other information – It may be self-evident to say that the audit process can corporate reports, spawned in most notably, a description of the sometimes be difficult for those who find themselves “on part by GFC-related corporate “key audit matters” that arose during the receiving end” of the auditor’s work. It’s also true to say collapses, IR seeks a more holistic the audit and which in the auditor’s (from my own experience in explaining my role with the level of reporting about an entity judgment need to be drawn to users’ NZAuASB to other practitioners) that the XRB and its work than is possible from the typically attention. This change is the result of tends to fly “under the radar” for many lawyers, despite short-term, historically-focused new international standards which it being a statutory body and a member of the exclusive financial information found in are being progressively rolled out club of independent Crown entities. As a governance prac- traditional annual reports. It in both New Zealand and Australia titioner I’ve found there is great benefit in understanding encourages a future-looking focus the nature of an audit as a process, the standards-driven on how an entity intends to create nature of the activity (which in turn helps those in gov- value over the medium and longer Eagle-eyed ernance to understand the drivers of audit fees), and what term. Recent New Zealand examples lawyers makes auditors tick in terms of their independence and (including the annual reports of involved professional scepticism. For lawyers, this can enhance the Sanford, Watercare Services, and with listed value they can themselves add, whether as directors, audit New Zealand Post) have gained issuers will committee members, or advisers. I encourage those who international recognition, with have noticed are interested to find out more.▪ exciting results in terms of reada- that the bility and the value of information standard audit Robert Buchanan  [email protected] is to users. The NZX’s new Code opinion is now a Wellington lawyer who chairs the New Zealand encourages listed entities to con- supplemented Auditing and Assurance Standards Board and, in that sider IR as one means of enhancing by a range capacity, also sits on the Auditing and Assurance their reporting practices. But this of other Standards Board of Australia. He has also held a also poses challenges for auditors information number of governance positions.

26 LAWTALK 910 · September 2017 UPDATE · CONSTRUCTION LAW

UPDATE CONSTRUCTION LAW Subcontractor direct payment provisions After the Court of Appeal decision in Ebert Construction Ltd v Sanson

BY JOHN WALTON

In a booming designed to procure project comple- As the value and complexity of construction work market, tion, rather than to crystallise the has increased over the last few years, there has been a like all losses by terminating one of the corresponding increase in concern over the diversion good Ponzi project contracts. The key to keeping of project cashflows away from the work for which schemes, the projects on track when the main payment has been claimed to other projects demanding use of project contractor has defaulted is to ensure immediate attention. In a booming market, like all good cashflows in that the specialist subcontractors Ponzi schemes, the use of project cashflows in this way this way can and suppliers remain available to can be managed; in a flat or declining market, as the be managed; complete the work, either under failure of Mainzeal in 2013 has shown, such behaviour is in a flat or direct appointments to the owner not sustainable. The first indicator is usually a subcon- declining or to a new main contractor through tractor complaining it has not been paid from monies market, as novation. already certified and released. the failure Requiring head contractors to It has become quite common for financiers to require of Mainzeal prove that they are paying their non-contracting parties to enter into direct agreements in 2013 has subcontractors and direct payment to regulate how they might exercise their rights under shown, such clauses, allowing the owner to pay the project contracts and how to deal with default. These behaviour subcontractors directly and then agreements can take many forms: is not deduct such payments from future • Direct subcontractor warranties – while the standard sustainable. payments under the head contract, warranty in NZS3910:2013 provides direct undertak- have become increasingly common. ings between the subcontractor and the owner, these Where the owner has paid the con- documents are frequently amended to include an tractor significant sums properly undertaking that the subcontractor will agree to the due to subcontractors and suppliers, novation of its subcontract to the owner, in the event the owner has an interest in ensur- of main contractor default. ing they get paid; and if they don’t • Interface agreements – where the project is under- get paid, it is not surprising that taken under a “construction management” approach, an owner may wish to keep them it is common for those direct contracts to be supple- on site by paying them directly. mented by an interface agreement, governing how the Similarly, where a head contractor designer, suppliers and various specialist contractors has gone into liquidation, paying will work together to complete the project. outstanding invoices will typically • Tripartite/umbrella agreements – common in highly be a precondition to any novation. leveraged developments where financiers want com- The difficulty with such arrange- fort that if any project participant fails – for example ments is that a payment which is in a commercial development, the developer, main properly due to an insolvent com- contractor or tenant – the other parties will give each pany (in this case, the main con- other notice and the opportunity to rectify the default tractor), which is paid to a creditor before exercising their termination rights under their of that company (a subcontractor), respective contracts. regardless of the justification, Each of these arrangements, in their various forms, are offends the pari passu principle,

27 CONSTRUCTION LAW · UPDATE

potentially making it an insolvent transaction, voidable in terms of section 292 of the Companies Act 1993. In such a situation, the owner remains liable to pay the liquidator for the full amount of the invoice, including the amount paid directly to the subcontractors, and the subcontractor payments would be reversed. The invoiced amount then goes into the creditor’s pool, and the sub- contractors would join with the rest of the unsecured creditors, getting paid cents in the dollar, if that. The leading case on this issue was the 2015 Supreme Court decision in Allied Concrete Ltd v Meltzer [2015] NZSC 7. In that case, the Supreme Court identified the key purpose of the voidable insolvent transaction regime as being: “… to protect an insolvent company’s creditors as a whole against a diminution of the assets available to them resulting from a transaction which confers an inappropriate advantage on one creditor by allowing that creditor to recover more than it would in a liquidation. The pari passu principle requires equal treatment of creditors in like positions (in these appeals, unsecured creditors) and facilitates the orderly and efficient realisation of the company’s assets for distribution to creditors.” (at [1]). Where a transaction is, by definition, an insolvent trans- action the Supreme Court identified the main shield to repayment of the money received is where, at the time of the transaction, the recipient (a) acted in good faith, and (b) did not suspect or have reasonable grounds for suspecting that the company (on whose behalf the payment is made) was insolvent, and (c) gave value, either by transferring property or foregoing legal rights in the reasonably held belief that the transfer would not be set aside. The difficulty with direct payment agreements should code compliance certification) and insolvent transaction? be apparent – they only become relevant at times of issued drawdown notices to BOSI, 4 From when shouldinterest run? insolvency. A payment, properly due to the head con- totalling $1.6 million. TPL was put On the first point, the court accepted tractor, made by an owner to a subcontractor because into liquidation shortly after these that the payment wasn’t made by the head contractor was insolvent, would clearly fall transactions owing money to IRD the company, as BOSI had a direct foul of s 292 without the benefit of the defence outlined for GST and to two unsecured liability to Ebert to pay the pro- by the Supreme Court. creditors. The liquidators sought the gress payments – there was privity The issue was considered further by the Court of repayment of these payments from between BOSI and Ebert, with a Appeal in June, in the case of Ebert Construction Ltd v Ebert as voidable insolvent transac- direct obligation on BOSI to pay Sanson [2017] NZCA 239. The case concerned the devel- tions under s 292. In the High Court, approved payments, independent opment of the 134-unit Shoalhaven Apartments complex Associate Judge Doogue found for of TPL’s compliance with its loan in Takapuna. The project was developed by Takapuna the liquidators and ordered the facilities; that obligation was by Procurement Ltd (TPL), with finance provided by BOSI payments to be refunded. BOSI as principal and not as agent and Strategic; construction was undertaken by Ebert In the Court of Appeal, Kós P gave for TPL; the obligation to Ebert was Construction Ltd. Among the project documents was a a useful summary of the history independent of the provisions of the direct agreement between TPL, Ebert, BOSI and Strategic of direct payment agreements, loan facility agreement; at the time under which the financiers were to make progress pay- and identified four issues for of the payments, TPL was already ments under the construction contract direct to Ebert on consideration: in default of the facility and BOSI TPL’s certification and the financiers were to get certain 1 Were the payments made by BOSI would not have permitted, nor step-in rights under the construction contract. transactions by TPL? been obliged to make, those pay- In settlement of a delay claim and remaining payments 2 Were the payments insolvent ments to the other creditors; and under the construction contract, TPL transferred one of transactions in terms of s 292? for a payment to be “by the com- the apartments to Ebert at a discount (to be settled on 3 Was the apartment transfer an pany” for the purposes of voidable

28 UPDATE · CONSTRUCTION LAW

amounts from BOSI directly, whether before or after the liquidation; it would not have bothered with the general pool as it could claim directly; the payments did not, therefore give Ebert a preferential position over other creditors; and therefore it was not a transaction to which s 292 applied. On the question of the apartment transfer, the court found that the conveyance of the apartment was a transaction to which s 292 applied, however when the agreement was entered into (in October 2006), TPL was not insolvent and, among other reasons, the net effect of the transaction was not to give Ebert more than it was entitled to after the liquidation – it had an equitable right to complete the transaction post liquidation. The question of interest, therefore, did not arise. The case raises a word of caution in relation to direct payment provisions in contracts and in novation agreements. While it is clear that a direct payment agreement, creating a freestanding obligation on financiers to make progress payments directly to contractors, independent of the owner, where an owner makes a payment due under a subcontract directly to the subcontractor, it would more clearly be making that payment on the contractor’s behalf. If the payment is made during the two year period preceding the liquidation of the main contractor, such a transaction could well be caught. As this scenario is most likely to arise when the main contractor is insolvent, and therefore not making payments as they fall due, this risk cannot be understated. Conversely, if owners (and their financiers), in consid- eration for the subcontractor’s agreement to novation of their subcontracts, accept a direct obligation to pay While Kós P transactions, the funds had to come subcontractors, as guarantors, in the event of default makes the from resources available to the other by the main contractor, provided the obligation was point that the creditors. unequivocal and enforceable independently of the substance While Kós P makes the point that main contract, it is likely that the payment would not of the the substance of the transactions be made “by the company”, and would therefore s 292 transactions is is more critical than their form, it would not apply. more critical is hard to get away from the point This position would, of course, be strengthened if than their that the funds were only available to direct payment of subcontractors was built into the form, it is Ebert as a result of TPL’s loan facil- construction contract, as with construction management hard to get ity. However, as the obligation was projects, and the contractor was paid only its margin away from the direct from BOSI to Ebert, and was or management fee, rather than getting the benefit of point that the independent of TPL’s loan facility cashflow from payments it was not strictly entitled to funds were agreement, the message is reasona- retain. only available bly clear for contract drafters – BOSI The alternative, of significant project payments going to Ebert as a gave a commitment to Ebert to pay into the creditors’ pool for disbursal to subcontractors result of TPL’s approved amounts as consideration and suppliers on other projects is far more sobering. ▪ loan facility of the direct agreement, and more critically the drawdowns would It appears likely that the case will go on appeal to never have been available to the the Supreme Court. creditor pool. On the second question, the court John Walton  [email protected] is a barrister held that as Ebert would have been practising at Auckland’s Bankside Chambers and entitled to recover the approved specialising in construction law.

29 HEALTH AND SAFETY · UPDATE September 2017 · LAWTALK 910

UPDATE HEALTH AND SAFETY Greater awards of reparation for significant life changing harm

BY CATALIJNE PILLE AND LUCY MOFFITT

from a truck. He sustained significant injury resulting Fire [2017] NZDC 4651. In that case, a Victims of offending may now in tetraplegia. His employer (Wai Shing Ltd) pleaded worker sustained tetraplegia when be eligible to receive greater awards guilty to failing to take all practicable steps to ensure he fell from a ladder positioned on of reparation following the amend- the safety of its employee, a breach of sections 6 and top of scaffold while he was shifting ment of section 32 of the Sentencing 50 of the Health and Safety in Employment Act 1992. cable wiring for an alarm system. Act 2002 to allow for recovery of The worker received 80% of his average weekly earn- The defendant pleaded guilty to a consequential loss not covered by ings (calculated over a 12 month period) as a weekly breach of ss 18 and 50 of the Health the Accident Compensation Act payment from ACC following the incident. The worker and Safety in Employment Act 1992. 2001. had received a pay increase two weeks prior to the inci- Taking the same approach adopted The amendment effectively dent. A medical opinion stated that he was unlikely to in Wai Shing, the court calculated overturned the majority decision ever return to work. The prosecution obtained a report the ACC shortfall on the basis that of the Supreme Court in Davies v from an actuary to assist the Court to quantify the ACC the worker should have been able Police [2009] NZSC 47 in which the shortfall. to work until the age of 65. court held that loss of earnings Prior to the amendment of s 32 of the Sentencing Act, There was no allowance made for consequential on physical harm the victim would not have been entitled to reparation for promotional increase or change in was not able to be the subject of a this loss. However, the court determined that this was hours. The incident cut short his reparation order under s 32(1) of the the very kind of loss that the Sentencing Amendment working life at the age of 52. Again Sentencing Act 2002. Act 2014 was intended to address, as the offending was the court was assisted by an actu- Put simply, the wording of s 32 the direct cause of the victim losing his job, his income arial report. In reaching the ACC precluded recovery of lost earn- and any future income. shortfall figure of $87,800 the court ings by way of reparation beyond The court found that the loss determined that the loss should only the 80% paid by the Accident should be calculated on the basis be discounted by 15% to take into Compensation Scheme. This that the worker would have been account the benefit of receiving decision was the catalyst for the expected to work until the age of the payment by way of reparation. legislative amendment made on 6 65. The court adopted a risk free The court The final amount to be paid by the December 2014. discount rate of investment using found that defendant for the ACC shortfall was Section 32(5) now allows repara- the worker’s actual rate of earn- the loss $76,940, with an additional $20,475 tion to be awarded for the difference ings as at the date of the incident should be reparation for accommodation costs between a victim’s full earnings (as opposed to an average earning calculated and $100,000 for emotional harm and the 80% earnings that a victim calculated over a 12 month period). on the also awarded to the worker. may receive under the Accident The figure reached of $452,600 was basis that It is clear from both of these Compensation Act 2001. discounted by 50% to take into the worker recent decisions that the amend- The impact of the amendment has account the ACC ethos and the would ment to s 32 of the Sentencing Act been particularly significant in two cost/ burden on victims if they had have been allows the courts to consider much very recent WorkSafe prosecutions to sue to recover this amount. The expected greater awards of reparation in cases in which victims have received large final amount ordered to be paid by to work of significant life changing harm. payments in respect of life changing the defendant for the ACC shortfall until the harm. was $226,300 with an additional age of 65. Catalijne Pille  catalijne.pille@ In the prosecution of WorkSafe $110,000 awarded to the worker worksafe.govt.nz is a senior New Zealand v Wai Shing [2017] for emotional harm. solicitor and Lucy Moffitt  lucy. NZDC 10333, the victim, a 27-year- The decision in Wai Shing was con- [email protected] is a old worker, was struck by a bin sidered in the recent sentencing of senior solicitor with Worksafe filler when unloading a harvester WorkSafe New Zealand vs Ask Metro New Zealand.

30 LAWTALK 910 · September 2017

UPDATE HUMAN RIGHTS Helping Muslim travellers deal with authorities

BY LYNDA HAGEN

A Law Foundation-backed pro- ject is helping ease concerns among New Zealand’s Muslim community about their treatment by security authorities. The Human Rights Foundation the computer storage of photos of flexible where it is clear the traveller is not suspected project has been prompted by Muslim women without their hijabs of importing drugs. Small things like that can make a complaints about the treatment of (head coverings), and the handling big difference.” Muslims in airport security checks of the Koran. The project aims to produce a best-practice model and in their interactions with the “The concerns are that this for agencies working with the Muslim community on SIS in particular. They claim to have community is being targeted in an counter-terrorism and human rights. It will also produce experienced unjustifiably excessive uninformed and insensitive way, resources for the community, such as wallet-sized “know scrutiny and cultural insensitivity in and in violation of their rights, when your rights” cards and fuller web-based information on their dealings with border officials. alienating the community may issues such as dealing with interviews. Human Rights Foundation actually be counter-productive to “We want the community to be resourced to deal with chairperson Peter Hosking says the effectively protecting New Zealand. these situations. If the outcome is that all organisations project team has compiled a dossier “But I want to emphasise that all better-understand this community and are clearer about of anecdotes from New Zealand these issues can be resolved. There what their responsibilities are, that can only benefit Muslims about their experiences has been a lot of cooperation from everyone.” with the authorities. The Foundation the agencies – it’s a case of so far, Mr Hosking says Law Foundation support was critical is now working cooperatively with so good,” Mr Hosking says. to the project going ahead. agencies including Customs, SIS, the A round-table meeting is to be “We don’t have access to government funding, which Police and MBIE about how they held soon with the relevant agencies is why Law Foundation funding has been so important. can work more sensitively with the to clarify roles and responsibilities. But apart from the funding itself, I think the very fact Muslim community. Peter Hosking identifies signs of that the Foundation is supporting this work also helps “It has become apparent to us flexibility, such as Customs con- reinforce its credibility.” that there is a significant problem. sidering relaxing its previously rigid This project is another in a long line of communi- Our aim is to take as cooperative an refusal to allow inbound travellers ty-focused projects the Foundation has supported over approach as we can in what is quite it is questioning to make cellphone the years. ▪ a difficult area,” he says. calls. The complaints have included “They didn’t allow calls because Lynda Hagen  [email protected] repeated, excessive scrutiny of a drug courier could alert someone is Executive Director of the New Zealand Law Muslim New Zealanders returning who was waiting for them,” he says. Foundation. Further information about research home from holidays or confer- “They are now looking at making funded by the Foundation can be found at  www. ences. Cultural concerns include the use of cellphones a bit more lawfoundation.org.nz

31 PUBLIC DECISION-MAKING · UPDATE September 2017 · LAWTALK 910

UPDATE PUBLIC DECISION-MAKING Decision-making bound by policy: a damming verdict?

BY SALLY MCKECHNIE AND CHARLOTTE DOYLE ▸ The Upper Tukituki River, downstream of the proposed Ruataniwha water storage Sally McKechnie and Charlotte Doyle his decision, bound to observe scheme. comment on the ramifications of the provisions in statutory planning  Photo by Phillip Capper CC-By instruments when engaging with the recent Supreme Court decision Hawke’s decision-making process under s 18? court about which policies are Bay Regional Investment Company Ltd v At a preliminary level, taking mandatory considerations for which Royal Forest and Bird Protection Society such documents into account may decisions. As a result, the effect of seem obvious. Developing policy legislative directions on policies are of New Zealand Inc [2017] NZSC 106 (the documents and planning instru- no longer so straightforward. Ruataniwha decision) for public and stat- ments is frequently encouraged or In the Ruataniwha decision, the utory decision makers. even mandated by statute to guide Supreme Court majority found the public decision-making. This is the Director-General was bound to case for the Conservation Act. Part take policy instruments created The Supreme Court’s decision on the proposed 3A gives statutory form to the facili- under Part 3A into account when Ruataniwha water storage scheme in Hawke’s Bay tation of the development of general making a decision under s 18 which has received significant media coverage. Much of the policy statements and conservation is in Part 4. The minority disagreed, reporting has focused on the relative conservation values management strategies and plans adopting the view that these instru- of the land and what the decision might mean for the by the Director-General for the ments created under Part 3A were future of irrigation in the Bay. purposes of management planning. not connected to a decision made In coming to its decision, the Supreme Court had a For local authorities, the Resource under Part 4 of the Act, a section close look at the requirements of public decision-making Management Act 1991 similarly sets that deals specifically with specially and the role of policy documents. The Court considered out a hierarchy of policy statements protected land. a fundamental public law principle – to what extent are and plans that are intended to sup- The majority, Elias CJ and Arnold public bodies bound by their policies in their decision-mak- port the overarching sustainable and Glazebrook JJ, held that a ing processes? – and was then split in their judgment 3-2. management purpose of the Act. decision under s 18(7) “must be This judgment may have potentially wide-reaching Where a policy document is exercised for the purposes for implications for public bodies and public decision mandated or enabled by the law, the which it is conferred”. The majority makers, well beyond the treatment of conservation land. extent to which these documents found that the purposes underlying are binding on decision-makers may the decision-making power were The Director-General’s decision be clearly indicated in the legislation not confined to the empowering The land at the heart of this litigation was 22 hectares of itself. Under the Conservation Act, section, but extended to the the Ruahine Forest Park that would need to be flooded for the Director-General must adminis- overarching scheme of the Act. In the water storage scheme to go ahead. To facilitate this ter and manage conservation areas doing this, the court applied a wide step, the Director-General of Conservation first revoked “in accordance with” general policy reach to the policy instruments the status of specially protected land and then agreed developed for the implementation created in discrete parts of the to a land exchange where other land would be obtained of the Act. Section 75 of the RMA Act. The majority identified that for the Park. The primary decision to revoke specially dictates that local authorities “must the guiding framework set up by protected land was made in reliance on powers granted give effect to” planning instruments planning instruments was vital by section 18 of the Conservation Act 1987. in their district plans. By contrast, for providing a context for all the The majority of the Supreme Court held that this deci- when considering resource consent choices made by the Minister under sion had been made unlawfully and should be set aside. applications decision-makers are the Act. This is a wide and holistic only required to “have regard to” approach to the purpose of the Act What did the Supreme Court say the same instruments under s 104. in its entirety. about public decision-making? What has been highlighted by the Relying on a comparison between In coming to this decision, the Supreme Court considered Ruataniwha decision is that there is the Conservation Act’s framework and to what extent was the Director-General, in making divided opinion in our most senior the hierarchy of policy documents

32 LAWTALK 910 · September 2017

established in the RMA, the court instrument framework was unable able to be ignored, the “coherence and observance” of considered that the binding nature to limit the scope of a discretion the instruments would be seriously deficient. The major- of the instruments would ensure conferred on the Minister for a ity also observed that revocation of the conservation consistent decision-making from the decision-making power with a very status of land would have an impact on the plans and Minister. Therefore, by failing to take particular purpose. This is consistent strategies included in policy instruments. The limits of the instruments into account when with an orthodox interpretative this reasoning are unclear. Could it extend to non-stat- making a decision over the status approach, where the specific over- utory planning instruments that dictate or guide the of land in Ruahine Forest Park, the rides the general. administration and management of a department or Minister had acted in error. The split decision raises questions authority? Many non-statutory policy documents are By contrast, the minority took for decision-makers operating under none the less created through a range of more formal a different, narrower, approach. similar statutory schemes, both processes, including public consultation and input. Justices William Young and O’Regan in central government agencies felt that the policy instruments in and local authorities alike. Which Moving forward question were created specifically statutory policy instruments are In light of the Supreme Court’s findings, and to avoid for the ‘ordinary course’ of admin- relevant to specific decision-making exposure to judicial review, agencies and local author- istering and managing conservation powers conferred under an Act, and ities will need to carefully consider the purpose and areas. They considered that the when? In all circumstances or only full potential effect of a policy document or instrument policy instruments were not rele- where it seems directly relevant? they are drafting. vant to the specific decision-making If decision-makers adopt too wide TheRuataniwha decision has created a question mark power to grant or revoke conserva- an approach, they could face the over the weight and scope to be given to statutory policy tion status of the areas in question. challenge of taking into account an instruments for statutory decision-making. It may The powers in relation to those areas irrelevant consideration. Following ultimately be determined by a judicial interpretation. were conferred on the Minister in an the Supreme Court decision, there But what certainty does this offer public bodies in entirely different section of the Act. is considerable uncertainty about the meantime? By applying a holistic and purposive After considering the content which statutory policies should be approach to the Conservation Act, and potentially of the instruments, the minority considered in a given circumstance. blurring the boundary between apparently distinct judges concluded that the statu- The majority further suggested decision-making powers, our highest court has muddied tory policies were concerned with that a failure to consider the the waters for public bodies. ▪ general and periodic reviews of land statutory planning instruments classifications under departmental would simply be “unaccountably Simpson Grierson partner Sally McKechnie  sally. management and were irrelevant to wasteful of the effort” spent in [email protected] and Charlotte a decision made under s 18. They developing these instruments. If Doyle  [email protected] are considered that a broad planning these instruments were therefore based in the firm’s Wellington office.

33 SOCIAL ENTERPRISES · UPDATE September 2017 · LAWTALK 910

UPDATE SOCIAL ENTERPRISES Social Enterprises and Legal Structure options in NZ

BY STEVEN MOE

Alice: Would you tell me, please, which way I ought However, some are arguing that Charities Services and apply for to go from here? more fundamental change might be donee status so that donations The Cheshire Cat: That depends a good deal on needed if there is to be a growth in are not taxed. This approach can where you want to get to. social enterprises. limit the scope of what such an Alice: I don’t much care where. The United Kingdom, Canada and entity does since it is constrained The Cheshire Cat: Then it doesn’t much matter which United States have all developed by staying within those purposes. way you go. new types of social enterprise enti- • Incorporated societies: The - Lewis Carroll in Alice in Wonderland ties in the last decade. The key paper Incorporated Societies Act 1908 starting the UK process was issued provides that members can form in 2002, 16 years ago, so this is not a society, with a minimum of 15 a new concept. However, in New members. The constitution or Last month we looked at what Zealand it seems that we may let rules must set out its objectives. social enterprises are (LawTalk 909, the ‘number 8 wire’ approach take This option is sometimes chosen pages 34-35). While the definition over and simply make do and work by social enterprises. is still not set, essentially these within the existing frameworks. • Limited liability companies: are entities that combine both the What can we learn from those In a company profit is typically desire to act ‘for purpose’ with the overseas experiences and what distributed to shareholders but desire to be ‘for profit’. The next alternatives might they suggest for it is possible to ‘write in’ (by generation of entrepreneurs is New Zealand? restrictions on activities) some increasingly focused on more than social enterprise purposes in just profit and whether they know Current options for the constitution of a company. it or not, they will probably fit in social enterprises Companies (with charitable the definition of ‘social enterprises’. A common structure for social purposes) can also register as a This article looks at how that social enterprises is to set up a charitable charity. enterprise concept fits within the trust which (eventually) incorpo- Other structures which may be used existing legal framework in New rates a limited liability company are co-operative companies, Māori Zealand and also examines what as a subsidiary to run its profit land trusts, limited partnerships and options some are proposing for making trading arm. There is limited industrial and provident societies change to help the growth of this research on this, but a Department but these are more rarely seen. sector. of Internal Affairs 2012 paper on this On 9 December 2016 Cabinet topic pointed to 421 respondents Difficulties with released a paper, “Social Enterprise which it had surveyed. Of those available structures and Social Finance: A Path to 52% were set up as charitable trusts. One of the main issues for any Growth”. It did not have concrete Incorporated societies made up 37% new business is access to capital. reform plans for the social enter- while limited liability companies Adoption of a charitable trust struc- prise sector, but instead it empha- made up only 7%. ture lends itself to approaching indi- sised a cross-agency working The three most common ‘vehicles’ viduals and groups for philanthropic group, the collection of statistics used for setting up a social enter- grants or donations (particularly if for further analysis and studying prise are: it has tax exempt status). However, ways to encourage investment. • Incorporated charitable trust: A it is more difficult to attract private That is important and there is a lot charitable trust needs to have a investors who share the risk since of time and energy currently being charitable purpose at its core and these entities do not return profits to spent on ways to create a better profit is not distributed to private shareholders and remain ‘charitable’ ecosystem for social enterprises. individuals. It can register with under the Charities Act 2005. On the

34 flip side of this dilemma, a limited liability company Social financial and business experience, may struggle with attracting such private funding since enterprises are and immature support networks). there is an assumption that it is ‘for profit’ because of not traditionally The list is a long one although it the form of entity which is being used – whereas in fact profit driven is getting better. One could well it may have other objectives beyond returning a profit. and instead argue that those issues need to be Building charitable purposes into the constitution will may work to addressed prior to focusing on any still need explanation and the default assumptions of advance cultural, development of a new legal struc- investors will need to be clarified. environmental, ture. However, some are suggesting educational, that changes made now might mean What other options are there? social or other that social enterprises do not need There is value in social enterprises because they do not goals. They may to twist themselves around in order rely on government funding or donations and instead also employ to fit within current legal structures. operate as a business which employs people. However, marginalised So, what are some of the options their goals are not traditionally profit driven and instead people and build being discussed? may work to advance cultural, environmental, educa- locally based tional, social or other goals. They may also employ businesses, Option A: Do nothing? marginalised people and build locally based businesses, which can One option is to do nothing and con- which can contribute to particular geographic areas more contribute tinue to allow new social enterprises than mass market or franchise models. to particular to pull out the number 8 wire and There are many barriers for social enterprises to geographic make do with existing structures overcome before they can flourish. It is easy to become areas more than available to them. That might be distracted by all of those important issues (lack of mass market or where things end up, but instead specialised incubation, mentoring, funding options, franchise models. of making do with what we have,

35 SOCIAL ENTERPRISES · UPDATE September 2017 · LAWTALK 910

some are saying that a bold and Many of these Many of these concepts are foreign to traditional ‘for innovative new approach is required concepts are profit’ business models and would take time to be dis- (see options B and C below). This foreign to cussed and understood. That there could be something would place the debate about social traditional ‘for more than maximising financial returns will take time enterprise and what it is at the top profit’ business to penetrate into the consciousness of society. The of the list on the table for discus- models and publicity around the new form of legal entity might sion. It would raise awareness and would take time raise awareness of social enterprises in New Zealand. ensure this was also front of mind to be discussed As a result, they would gain a new level of legitimacy. In for those who are creating such and understood. addition, investment would be encouraged so they can businesses. This would also ensure That there grow because investors would understand this option. that the broader community and could be traditional ‘for profit’ businesses something more Option C: A new legal status? could be challenged in their thinking than maximising If a new legal structure is going too far, another option and assumptions about their own financial returns is a new legal status. This status could be granted by business as well, such as where they will take time the Government to those entities which satisfy certain source their suppliers to penetrate criteria along the lines of those set out in Option B in into the terms of reinvestment, entrenched social purposes and Option B: New legal structure? consciousness reporting. Some would argue that this is the appropriate Other countries have adopted legal of society. first step rather than trying to reform the entire sector structures specifically with social by introducing a new legal structure. enterprises in mind. In the United A new legal status might be akin to a ‘B Corporation’ Kingdom these are ‘community interest companies’, in which was discussed in the article last month – it would the United States there are ‘benefit corporations’ and in give a level of credibility to those social enterprises which Canada there are ‘community contribution companies’. satisfied the criteria. But then again, why reinvent the The fact that there is not a greater call for a change may wheel; maybe there should be no change and those who be a symptom of people facing other more pressing day- want to can just go through the B Corp assessment instead. to-day challenges and not knowing that there might even be another option. Proponents of a new legal structure Conclusion argue that if new structures were available that might Where are we, and where do we want to be? This article also be a way to address those pressing concerns of has outlined the current legal structures in New Zealand sourcing investors and funding, explaining the vision of used by social enterprises and has looked at a few of the a social enterprise and raising awareness of this sector. options that could be considered to introduce reform. To be specific, a new form of legal entity introduced A 2002 report on charities in the UK which still seems could have the following key elements: to resonate here said: • Clear name: A name for the new form of entity which “Much of the legal context for charity and voluntary makes it clear it is not a traditional limited liability action is now outdated … law and regulation have not company but also not a trust or incorporated society. kept pace with developments … There is also insufficient This would assist to alert investors and others as to recognition in the legal system of the particular needs of what type of entity it is. social enterprises, a rapidly growing group of businesses • Purposes: Requirement for clear articulation of the carrying out a wide range of activities for the benefit of purposes (eg, social, environmental, cultural) which society rather than the individual. This report sets out a show how they align with the social good while package of measures which will modernise the law …” wrestling with the tension of also being a business. The result in the UK was the introduction of a new • Capped dividends: Restrictions in place on returning form of legal entity more than a decade ago. Is now profits to investors to ensure that profit making is not the right time for social enterprises to be given a new the ‘primary’ objective. framework in which to operate here? Not unlike Alice • Tax exemptions: Make the structure flexible enough so in the quote at the start, we first probably need to work that for those who wanted to do so, and meet criteria, out where we want to go. How we get there will be could still apply for tax exempt status, at least for the complicated as there are many competing interests and non-profit portion of their income. points of view. Further discussion and engagement on • Reinvestment: Profit/surplus to be reinvested into this issue is important. With the social enterprise world the purpose. Consider if there is a guideline or per- forum being hosted in Christchurch in September, now centage fixed of what must be reinvested or it is left might be the right time to consider this issue more. ▪ as a dynamic tension. • Reporting: Include a requirement for reporting not Steven Moe  [email protected] is a senior just on profit making goals but also on other social associate at Parry Field Lawyers in Christchurch. He benefit goals. recently wrote a book, Social Enterprises in New • Director duties: Reform of the duties so directors Zealand: A Legal Handbook, which is available as consider new objectives beyond profitability. an eBook to those who send him an email.

36 LAWTALK 910 · September 2017 UPDATE · TRUSTS

UPDATE TRUSTS

Trust deed audits A reminder of regulatory change

BY ROBERT BUCHANAN

The New Zealand Auditing and out-of-date requirements of the trust deed. The auditing requirements for Assurance Standards Board has The NZAuASB raised this issue with the NZLS issuer trust deeds are in the Financial been made aware, by some of its Commercial and Business Law Committee earlier this Markets Conduct Regulations 2014 accountant members, that the year. The committee agreed that the issue should be and previously in the Securities wording of the auditing require- drawn to the attention of lawyers and firms that advise Regulations 2009 and the Deposit ments in many trust deeds has trustees and prepare deeds, and it has been consulted Takers Regulations 2010. yet to be updated to reflect these in the preparation of this article. Under the old regulations, a changes. This has been causing Committee member Stephen Layburn comments that, number of terms were implied some tension, which appears to while this is an issue for all entities in the managed into, or required in, trust deeds. have been reinforced by a lack of investment schemes sector which were required to These included requirements to understanding (and what auditors transition (and become licensed) under the FMC Act, provide separate audit reports to refer to as an “expectation gap”) by many have experienced a steep learning curve and are (and for the benefit of) trustees. some trustees about the purpose now working with their supervisors to develop a better Auditors at that time encountered and scope of a statutory audit. For understanding of what the regular/annual compliance difficulties around the reporting example, a statutory audit cannot and reporting landscape will look like. A number of requirements to trustees as specified be used to confirm compliance with entities have also gained exemptions, meaning they have in trust deeds, as there was often a the trust deed. In some instances had to pay little (or limited) attention to updating their mismatch between the assurance this has complicated the process of governing documents. As experience under the FMC Act requested from the trustees and that agreeing terms of the specified audit continues to develop, he believes many of the issues obtained by the auditor during the engagement between the auditor around the requirements for assurance will continue to be audit of the financial statements. and the trustee and required lawyers discussed and resolved in a somewhat more orderly way Under Schedule 10 of the FMC to become involved. On the auditor’s than the frantic lead up to the 1 December transition date regulations, the clauses treated as part, some auditors appear to have allowed. Supervisors and their lawyers should bring their implied into all trust deeds no longer continued providing assurance to auditors into these discussions. This will also benefit the include a requirement for the audi- trustees, based on work performed auditing profession, as the expectation gaps are bridged tor to confirm its audit opinion for on the annual financial statements and the full range of assurance needs (beyond those for the benefit of the trustee. Instead, of the issuer, in order to meet the statutory reporting purposes) are appreciated. ▪ they require the issuer itself to give the supervisor (ie, the trustee) an opportunity to be party to a “speci- fied engagement” for the purpose of the supervisor obtaining assurance of matters relevant to the exercise of performance of the powers of the duties of the supervisor, and to Providing Professional Indemnity and specialist insurance consult with the supervisor on the nature and scope of the specified products to the Legal Profession engagement. (A “specified engage- Visit www.justitia.co.nz for further information and application forms ment” is an assurance engagement Or Contact: Mr Ross Meijer, Aon New Zealand carried out by an auditor in relation 04-819-4000 to the issuer’s compliance with the [email protected] trust deed.)

37 TRUSTS · UPDATE September 2017 · LAWTALK 910

UPDATE TRUSTS Trust deeds: Variation powers in the 21st century

BY KIMBERLY LAWRENCE

change the identity of the appointor. be impugned by Michael Mercanti In the recent case of Mercanti v Mercanti [2016] WASCA In that case, the variation power was and Jason Mercanti did not involve 206 the Court of Appeal of Western Australia held that a impliedly limited; the appointor had the variation of a particular purpose variation power in a trust deed could be used to change the power to change the identity of for which the MMF Trust was cre- the identity of the appointor and “guardian” of a family the trustees, and the trustees could ated so that it served a materially trust. The role of guardian is similar to that of a protector. not use the variation power to usurp different purpose.” (at [265]). This case suggests a more liberal approach to the use of the control the settlor intended to The purpose for which the trust variation powers than has historically been accepted, retain over trust affairs by holding was established was to provide for and also brings some clarification to the meaning of the the role of appointor. the Settlor’s family but otherwise “substratum” in the context of the modern discretionary The variation power exercised allow maximum flexibility to deal family trust. in the Mercanti case was found to with the trust and the trust capi- The background was not unusual. A family trust be different. The court found that tal as circumstances changed (at settled by Michael Mercanti held substantial business none of the express limitations on [265]). This was not affected by the interests. Michael Mercanti was named in the trust deed the power prevented the variation variation. However, changes to the as appointor and as guardian. These two roles gave him challenged by Michael, and that the direction of a trust which render it a significant degree of administrative control over the trust deed did not impliedly limit quite different to the trust settled trust. The sole trustee was a company controlled by or prevent a change to the identity initially may not fall within the scope Michael Mercanti. In 2004 this trustee varied the sched- of the appointor or guardian (at of a variation power in the same way ule to the trust deed to name Michael’s son Tyrone as [147] to [156]). The power to effect that handing control to the next guardian and appointor. Michael, in his role as guardian, such a change, while not expressly generation did in the Mercanti case. consented to this variation. contained in the trust deed, was not The Mercanti decision clarifies The family continued on in relative harmony for some “omitted deliberately” (at [152]). The some of the uncertainty shrouding years, before a relationship breakdown in 2012. In 2013, trust deed, and the variation power, the concept of the ‘substratum’, but Tyrone exercised his power to replace the trustee com- were construed as allowing the it is not a green light to use variation pany. Michael then brought proceedings challenging change – to which Michael himself, powers to address all problems that the 2004 variation which led to Tyrone replacing him as guardian at the time, consented. will arise over the course of a trust’s as appointor and guardian. Among his arguments were Buss P also found that that the life. The decision emphasised that that the variation power did not extend to changing restriction on the exercise of var- in every case, careful consideration the identity of the person in those roles, and that the iation powers by the historical must be given to both express limi- variation amounted to a change to the ‘substratum’ concept of the ‘substratum’ could tations on the power as contained in (sometimes considered the purpose) of the trust and also be viewed as an application of the trust deed, and implied limita- was impermissible. the doctrine of fraud on a power tions to be gleaned from the context The court began by discussing the case ofKearns v (at [101]). The doctrine of fraud on a in which the trust was settled and Hill (1990) 21 NSWLR 107. The court inKearns held that power operates to prevent a species the intentions of the settlors at that historical presumptions against the wide use of variation of excessive execution of a power, time. This is consistent with New power were of little use in the modern discretionary trust often for an improper purpose. Zealand decisions which have long context where the purpose of conferring such powers Michael Mercanti’s variation did not required clear authority in the trust was to ensure flexibility. The court also noted “the equally affect the substratum of the trust: deed in order for variations to be obvious consideration that the conditions which existed “The substratum was not, in my made (see, for example, Hemming v in England in 1850 are not necessarily the same as those view, to be ascertained or defined Chambers (2000) a NZTR 10-005). ▪ which existed in New South Wales in 1970.” by reference to the identity of the The court in Mercanti then considered a 2007 decision of persons or entities who, at the date Kimberly Lawrence  Kimberly. the Queensland Supreme Court – Jenkins v Ellett [2007] QSC of execution of the MMF Trust Deed, [email protected] is a 154 – where a successful challenge was mounted against held the offices of Trustee, Guardian solicitor with Wellington firm Greg trustees who purported to exercise a power of variation to or Appointor. The variation sought to Kelly Law ltd.

38 LAWTALK 910 · September 2017 UPDATE · AML/CFT

AML/CFT Five money laundering myths for lawyers to avoid

BY RON POL

It can also be easier, cheaper, Paucity of prosecutions not all it seems. Much has been written about and more effective than training Less well-known, there have been at least four prose- lawyers and money laundering. exercises with theoretical examples cutions of legal and accounting professionals, with one Some of it alarming, some appre- and overseas case studies infused jailed for laundering. There are also other cases in the hensive, and some plain wrong. with the arcane terminology of civil jurisdiction where lawyers facilitated transactions But, as Gary Hughes observed an industry known for its “official with criminal funds. And practitioners today in the same (LawTalk 908, pages 36-41), for most narrative” driving what one expert position as the two lawyers prosecuted more than a lawyers, anti-money laundering is recently termed “policy-based evi- decade ago would nowadays likely face criminal money manageable. dence making”. laundering charges. Prosecutors no longer need to prove Gary offered five steps that firms This article is firmly evi- knowledge that funds came from a specific offence or can take now. This article shares five dence-based. It draws from years type of offence; reckless disregard as to the source of myths that lawyers should avoid. of PhD research, including the only funds is sufficient. Falling into any of these traps can empirical evidence of its kind iden- Nonetheless, a few cases, many years ago, isn’t enough make it harder – and more expen- tifying exactly how New Zealand to dislodge the myth. sive – than it needs to be. lawyers were used to launder the Grounded in practice, these are proceeds of serious crime, often Enforcement gap, not evidence gap. some of the commonest misunder- unwittingly. A lack of prosecutions doesn’t mean a lack of evidence. standings that lawyers have shared I located the contract documents themselves, in proven with me over the past five years. My There’s no evidence that criminal proceeds transactions facilitated by profession- conversations with firms invariably lawyers are involved als (lawyers, accountants and real estate agents) going follow the same path: “There’s no This idea is usually based on the back more than 20 years. In a tightly defined research evidence. If it happens in our pro- paucity of prosecutions, with just range, in just one part of one practice area, the number of fession, it’s just a few bad apples. one wellknown case of a lawyer identified professionals facilitating criminal transactions It couldn’t happen in our firm. I prosecuted, many years ago, ‘only’ quickly got into hundreds. (The research cases were haven’t seen it in my practice”. for failing to report suspicions. There anonymised). After I outline some of the ways that are at least three problems with this As well as criminal real estate transactions facilitated Kiwi lawyers were used to launder myth. by lawyers, professionals were found to have estab- criminal proceeds over the past lished trusts with criminal assets, acted as trustees 20 years, someone inevitably says over criminal funds, incorporated companies used as “I remember a case where…”. The consignees for methamphetamine shipments, registered floodgates open. and purchased high value assets with criminal funds, Lawyers have a tremendous In a tightly acted as conduits for crime funding, locally and over- capacity for remembering past defined seas, and facilitated laundering transactions by many transactions, including ‘odd’ things research methods, apparently even including litigation in New that, at the time, were difficult to range, in just Zealand courts. pin down. With new knowledge, red one part of one flags suggesting possible misuse of practice area, Logically more. lawyers’ services and trust accounts the number Moreover, the research cases comprise only a small reappear in sharp focus. of identified fraction of the $1.35 billion that police say is laundered Dispelling persistent myths with professionals each year, plus at least as much again in tax evasion, real-life examples from a firm’s own facilitating and more again with overseas criminal funds laundered practice along with empirical evi- criminal locally. When drug dealers, corrupt overseas officials, dence of how it occurs in practice transactions tax evaders and others buy and sell real estate with the in New Zealand can help identify, quickly got proceeds of criminal endeavours, they invariably use and avoid, similar issues in future. into hundreds. New Zealand lawyers. Other financial transactions also

39 AML/CFT · UPDATE

require, or benefit from, legal expertise. As a result, the research cases involving lawyers found to have facilitated transactions with proven criminal proceeds are, logically, the tip of an iceberg of indeterminate proportions. All such transactions when criminals choose to use lawyers, and all transactions that must be conducted with legal expertise, necessarily involve lawyers. Nonetheless, police might continue a traditional focus mostly on local drug dealers, preferring an ‘education’ path for the professions – in which case this myth might have little practical impact on law firms. Overseas crime-disruption trends, however, increas- ingly focus directly on professional services firms facil- itating criminal transactions, including those unwitting or wilfully blind to the source of funds. If contemporary policing methods take hold here, and perhaps in any event, law firm leaders might wish to consider the benefits of dispelling any lingering percep- tions that there’s no evidence that lawyers were used to help launder proceeds of crime. The evidence exists. It’s just that some cases haven’t been prosecuted or investigated and in many cases it may be difficult, perhaps impossible, to isolate criminal transactions amongst countless legitimate deals. We’ll keep an eye out for cash This myth is understandable. Retail drug dealers operate in cash and some of the dumbest criminals still occasion- ally try to use large amounts of cash in real estate and other transactions. Counterintuitively, there are some indications that sophisticated criminals sometimes con- vert assets (back) into cash, to break the record chain or ‘prove’ the legitimacy of large cash sums. Cash therefore remains a relevant indicator and it appears in standard lists of generic red flags. A benefit of empirical research, however, is the new- found ability to identify and rank the most common red flags, specifically relevant to New Zealand transactions facilitated by professionals. The research supports earlier police findings. Criminal transactions using law firms increasingly – and mostly – involve electronic payments. With longer experience of the financial transactions, the research Moreover, fraud, tax evasion, overseas corruption, and realities of money laundering, revealed many cases where lawyers many other sources of criminal funds typically originate however, some overseas authorities had many more interactions with electronically. frankly accept that, amidst millions criminal actors over a longer period Firms on the lookout mostly for cash therefore risk of legitimate transactions, banks than banks. leaving their trust account open to the main source of sometimes have only fleeting visi- The research also found that criminal funds: ‘from the bank’. bility of criminal funds. banks and lawyers often see differ- New Zealand’s evidence base ent red flag indicators of criminal But if it’s from the bank, it’s OK holds similar insights. It’s sometimes activity. Red flags visible to lawyers Partly addressed above, this perception is so strong remarkable that banks identify are not always seen by banks, and it’s usually expressed separately. It sounds plausible. criminal activity involving only a vice versa. It also exposed many If money enters the trust account electronically from a few transactions, completed in mil- instances where criminals com- local bank, it passed through stringent money laundering liseconds. However, often involved partmentalised knowledge between checks. It ‘must’ be clean. with structuring and implementing banks and lawyers, helping mask

40 UPDATE · AML/CFT

Risk assessment for extending money laundering and software will controls to lawyers, however, fix the problem might someday make an interesting A risk assessment is compulsory university case study. The trail of and software will be useful for many policy papers and analyses contain firms. However, relying on them is enough unsupported assumptions, no substitute for people, knowledge circular arguments and obvious and culture. gaps, cloaked in apparent obscu- In revealing how criminal groups rantism, to fill many research use lawyers to launder money, the papers. research showed the vital importance However, in practical terms this of old-fashioned common sense by myth might not matter as much lawyers and staff who understand as the others. Whether it’s well- the various ways, in very practical grounded in evidence, or not, the terms, how their services and trust law is what it is, and lawyers will accounts can be misused. need to comply with it. The new legislation has many The issue for law firms then is not gaps so software, manuals and legal, or compliance, but strategic. training calibrated for ‘compliance’ Some firms might want to make inevitably leaves avenues open for it harder for their practices to be criminals to continue using law used to perpetuate serious criminal firms to launder criminal proceeds. enterprises. If they believe that the ‘Tone from the top’, knowledge, new laws comprehensively prevent common sense and culture remain criminal misuse of legal practices, the most effective, and often cheap- they might miss the gaps. est, ways to reduce and prevent That is because the research criminal misuse of law firms. illustrates what police have long known. Criminals adapt quickly, The new laws are based and with obvious legislative gaps, on solid evidence ‘displacement effects’ are inevitable. This myth does not suggest that When one channel closes, criminals lawyers aren’t used by criminals use others. to launder the proceeds of seri- Paradoxically it should be possi- ous crime. They are. It is just that ble to better protect law firms – at the new laws were not fully evi- no more cost – than a narrow focus dence-based, so there are necessar- only on ‘compliance’ with (arguably) ily gaps between the provisions and flawed laws. the reality of financial transactions For most law firms, anti-money facilitated by lawyers. laundering is manageable. Avoiding New Zealand Police conducted an some of the myths can make the evidence-based scoping exercise a process easier and more effective, few years ago. Surprisingly, despite and help keep costs down. ▪ their activities from both. millions of dollars on policy advice The evidence uncovered cases where, having duped a over more than two decades, no Former lawyer Dr Ron Pol law firm once, those responsible for directing criminal New Zealand government appears  [email protected] funds targeted the same firm in future transactions. to have commissioned extensive is a legal management consultant In at least one case, a firm successfully used by one empirical research to learn exactly and principal at  AMLassurance. criminal group was later used by another, seemingly how laundering occurs in New com. His PhD thesis was supervised unrelated, criminal network to launder proceeds of Zealand and to combat it based on by Professor Jason Sharman and serious crime into real estate in Auckland and the facts, beyond conjecture, assump- is entitled “Effective sentinels or Coromandel. tion and rhetoric. unwitting money launderers? The In short, banks sometimes miss, or may not be There are some indications policy effectiveness of combat- exposed to, the same red flags as lawyers. This means that New Zealand’s regulatory ting illicit financial flows through that firms operating on the assumption that funds ‘from and enforcement agencies might professional facilitators (lawyers, the bank’ are inherently ‘clean’ risk becoming an easy advance evidence-based prac- accountants and real estate conduit for money laundering. tices. The policy-making process agents)”.

41 COURTS September 2017 · LAWTALK 910

COURTS

The pathway to becoming a judge

BY NICK BUTCHER

How does a lawyer become a judge? Is it a case of getting the nod, being handpicked, or the natural progression for a Queen’s Counsel? “Then what will happen is that the Chief Justice Do you even have to be a litigation lawyer? and a senior official from the Ministry of Justice, will summarise the various applications and provide me a shortlist which are then approved. These candidates will be interviewed, normally by the Chief District Court The judiciary is the arm of our Judge and a couple of officials from the ministry,” the democracy that is independent of ❝ Judges are the current Attorney-General Christopher Finlayson QC says. executive and politicians. The finan- axle on which Once the interview process has been completed, the cial rewards are regarded as good the wheels of final recommended selection list will be provided to the but it is no sinecure. The work is justice turn ❞ Attorney-General. hard, demanding and is carried out — Andrew J. “So, formally, the choice is mine, but to say that I’m under the guise of the public eye. Wistrich. the only person involved in the selection process would Jurisdictions throughout the be wrong,” he says. world have various systems of appointment to the bench. New The Senior Courts Zealand’s way of appointing judges People will, from time to time, be invited to write in is no less complicated, nor is the with an expression of interest. process widely understood. “There is a protocol to choosing High Court Judges and The Attorney-General has the I’m obliged to have a protocol under the Senior Courts final say on all appointments to Act 2016. What happens is the Chief Justice and I will the bench, whether at the District have a discussion after the longlist that has been sent Court level or superior court judges to both the New Zealand Bar Association and the New such as the Supreme Court, Court Zealand Law Society for general comments.” of Appeal and the High Court. Each Mr Finlayson and Chief Justice, Dame Sian Elias, have selection process is different, includ- to agree on a shortlist of three possible candidates from ing to the various tribunals. which the Attorney-General will appoint one person. “I’ll confer with the Chief Justice and the President The District Court of the Court of Appeal along with which High Court The District Court also includes Judges are considered appropriate in relation to the the Family Court and those that needs of the court. I’ll make a choice from there,” says have a District Court warrant but Mr Finlayson. are appointed to the Environment “It’s my preference that before appointment to either Court. For appointments to the the Court of Appeal or the Supreme Court, the final bench, in the first instance adver- appellate court, that a person should have had experi- tisements go out from time to time ence as a trial court judge.” inviting expressions of interest.

42 LAWTALK 910 · September 2017 COURTS

Criteria programmes relating to the role of a judge with social When the selection process has reached the final short- context issues such as family violence, judge craft such list, how do you determine who will be the right person as delivering judgments (written and oral), courtroom for the job? After all, they’ll all have similar qualities, management and communication, and technical knowl- yet they can’t all get the position. edge (evidence, bail and risk assessment, sentencing). “We do not have a vetting process by Parliament “An important element of our curriculum covers which happens in some jurisdictions. We are guided Tikanga and Te Reo for judges,” she says. by what’s in the public interest and what the needs of Ms McIntosh says there are also ongoing bench specific the judiciary are,” he says. update programmes that respond to current identified The most recent appointments to the High Court education needs for a bench. These could perhaps look include Pheroze Jagose and Gerard van Bohemen. at legislation, social issues, or other related skills. Both Justice Jagose and Justice van Bohemen will Courts of New Zealand also publishes and promotes sit in Auckland. protocol relating to the activities of all judges such “There were many qualified candidates that could as conduct and possible complaints about a judge’s behaviour and how they are man- aged. The protocol also includes conflict of interest and recusal guidelines. Political views have no sway in appointments Christopher Finlayson says the personal politics of a lawyer play have been appointed. But what I was looking for was no part in choosing judges. good all-round experience as a prosecutor, experience “Whether the lawyer is popular as a defence lawyer and also good experience as a civil with me or what their political lawyer. Then I thought it would be helpful to get someone views are is completely irrelevant on the bench with good knowledge in the public and to me. I don’t know the politics international law area. There’s been a gap there since of people that I appoint. We must Sir Kenneth Keith left the judiciary about 10 years ago. respect the separation of powers. I also wanted good commercial law experience on the Judges are not civil servants, they bench,” Mr Finlayson says. are an independent branch of Neither Justice Jagose nor Justice Van Bohemen were Government and they need to be Queen’s Counsel before their appointments. shown this respect. Mr Finlayson says when appointing people to the “Everyone knows the theory of bench, he looks for rich experience. the separation of powers, but over “From the independent bar, occasionally from law the last nine years it has astounded firms, the public service, occasionally from academia, me that the practical application bearing in mind of course that they will be spending of the separation of powers is not much of their time doing criminal trial work or general always perfect,” he says. civil or commercial work.” Time spent overseas Ongoing training The retired Employment Court Practising lawyers are used to the pressure of fulfilling Judge Tony Ford was a partner at their professional development through continuing legal law firm Bell Gully but left the firm education courses. in 2000 and became a Judge of the The Institute of Judicial Studies provides ongoing Supreme Court of the Kingdom of training for all judges, particularly those who work in Tonga, along with becoming the the District Court as they make up the majority of the Tongan Chief Justice. judiciary. “When I heard he was considering The institute’s director, Janine McIntosh, says it returning to New Zealand about six provides a range of programmes for judges throughout years ago, I was very keen to get him their career. For example, one area of the curriculum is on the bench and so he became a focused on education and development for new judges. judge on the Employment Court. I “New judges attend a general orientation programme think if a New Zealander has been called the Judicial Intensive in their first year. There are serving overseas on the bench, further bench specific orientation programmes such as there is no reason why that person criminal jury trial, family, youth and civil,” she says. Other areas of the Institute’s curriculum include

43 ▴ Justice couldn’t do the same in our country,” he says. David Mr Finlayson says the same opportunity is poten- What’s it really like being a judge? Gendall tially there for a New Zealand lawyer who has practised Tony Randerson recently retired from the bench. He had taking the extensively overseas. been a Court of Appeal Judge since 2010 and was the Judicial “There are many who have practised in Canada, longest sitting member of that court. Justice Randerson Oath at his the United States, England and Australia and if they became a barrister sole in 1989. He was appointed to swearing in approached me with an interest in serving on the bench, the High Court in 1997 after becoming Queen’s Counsel ceremony and they do from time to time, then I would certainly in 1996. at the consider that application,” he says. He was 50 when he became a judge. It wasn’t some- old High Section 94 of the Senior Courts Act 2016 states that thing he set out to do after graduating from law school. Court in a person can be eligible for appointment as judge or “I started in a law firm in 1968 and had to be taught Wellington associate judge if that person has held a practising cer- how to write a legal letter, so being a judge was the last in June 2013 tificate in a jurisdiction specified by Order in Council thing on my mind,” he says with a laugh. for at least seven years. Justice Randerson says lawyers can become judges “I think having a good general knowledge is the best in both what he describes as a traditional and non-tra- fit. You will be presiding over the murder trials, the ditional way. serious drug trials, fraud trials,” he says. “I was probably in the traditional pathway category

44 COURTS

to the High Court. qualities – which sounds like he or “However, Sir Kenneth Keith she should be super-human. had a very distinguished academic Along with having a thorough background. He ultimately ended knowledge of the law and many up as a Supreme Court Judge but years of practical experience, also recently retired from the Justice Randerson says both phys- International Court in The Hague, ical and mental robustness are also and Justice Matthew Palmer also advantages. had a largely academic background “It’s a tough job and it’s not but had some practical experience one for people who aren’t in rea- before being appointed to the High sonably good health. You need Court,” he says. stamina, you’re working hard and not necessarily having the full and The early days of being normal sleep patterns sometimes. behind the bench Particularly with long trials, you “Even very experienced barristers may be away from home on circuit, are surprised by how different it is staying in a motel.” when you become a judge rather Justice Randerson says a civil or than counsel,” he says. criminal trial mentally consuming. Justice Randerson says it took “When you’re running it, you’re some time for him to feel comfort- thinking about it constantly. It’s able presiding over criminal trials. pretty near impossible to go home He recalls an early civil case at five or six o’clock and just turn involving a claim for damage fol- your mind off. It’s on your mind the lowing a mid-air crash between a whole time, such as what might I police helicopter and a small plane be required to rule on tomorrow, in Auckland. Everyone aboard both thinking about summing up, keep- aircraft was killed. ing on top of the evidence as it is “I went up the Sky Tower, which presented and a host of things can was still quite new, with counsel occur during a trial that you have involved and the flight paths were to rule on straight away; it’s very pointed out. Ultimately, it went to demanding.” the Court of Appeal and I’m pleased Being calm under stress is a skill to say my judgment was upheld. It that can’t be bought but is a vital was an interesting start for a new- tool in a judge’s kit, along with ly-appointed judge,” he says. having the confidence and respect A traditional judge needs many of the existing bench. “The judges see counsel appear- ing regularly in their court. They know them quite well and it’s very important for a potential candidate in that I was someone who had wide to establish a reputation for trust- experience in litigation in the civil worthiness and honesty. The old courts and subsequently became a adage that reputation takes a long judge. I had quite a steep learning time to be established but can be curve in relation to criminal trials,” lost in an instant is something that he says. all counsel need to keep in mind,” Quickly dispelling any myth he says. that all judges must have a court background, he says retired Justice Impartiality Sir Peter Blanchard, Dame Susan When a Crown or defence lawyer is Glazebrook and Sir Mark O’Regan acting in court, they have their angle all came from a commercial back- at work – to get the best possible ground and have been very success- result for their client. But a judge has ful judges of the Supreme Court. to be impartial when dealing with Justice Randerson points out and weighing up the facts of a case. that very few people with a purely How challenging is that when academic background are appointed dealing with the many personalities in the courtroom? “It’s essential to the judicial

45 COURTS September 2017 · LAWTALK 910

function that the judge acts impartially and in some judge and these roles have distinct differences. ways it is straightforward as a judge because you are not He was a trial judge in the High Court for 12 years, representing one side or the other as you are as counsel. of which the last five were as Chief High Court Judge. You hear the argument from each side and that helps “For a court lawyer, as I was, being a judge was the you come to a balanced result because you don’t have best job in the world. It’s hard and varied work but any obligation to either party. fascinating,” he says. “On the other hand there are times when you have to As a judge there is also a fair bit of circuit work, really work hard to remain impartial especially if one meaning that Justice Randerson was sometimes sitting party is not represented and the other side is and the in provincial areas, such as Hamilton, Rotorua, New unrepresented party is not sure about process, evidence Plymouth, Whangarei and Gisborne. points or might be quite irritating by the way they are “While you’re away from home, it does give you a conducting themselves in court,” he says. good understanding of life outside the main centres and In particularly grim cases such as a murder trial, it’s very important to have that wider experience and portions of the evidence can tear at the emotional insight into what it’s like to live in the rural or smaller heart strings of both the jury and the public seated in areas of the country.” the gallery. While that can be used effectively by a lawyer as a tactic in persuading a jury to view the presented facts their way, a judge has to remain neutral – something that wouldn’t be easy for anyone listening. “I didn’t find it difficult to remain detached from the emotional side of criminal trials and the ghastly facts that are sometimes involved. I was very busy making sure that the trial was running properly in the sense that the rulings being made on evidence and procedural issues were correct. Getting the summing up to the jury right so that any question of appeal would be minimised. A lonely role All of those technical things meant that was my focus Justice Randerson says the decision process is the sole rather than some of the horrific content of criminal responsibility of the sitting judge. trials,” he says. “It’s lonely only in the sense that at the end of the day, despite the advice from your colleagues, it is your What does it mean to exercise decision that has to count and the responsibility lies judicial authority? with you,” he says. Justice Randerson says that’s a question which is widely Summing up a case is also the sole job of the judge misunderstood. and can mean burning the midnight oil at nights and “Judges from a constitutional standpoint are the third over the weekend. arm of Government, but a critical element of that is that “It depends on the length and complexity of the trial they are independent of Parliament and the Cabinet.” but it can be a huge amount of work and it’s often done While judges are appointed by the Attorney-General, under immense pressure because the pace of a criminal they cannot be removed from office except by a motion trial is such that you can’t keep a jury waiting while supported by Parliament, in the event of misbehaviour. you prepare your closing address. It needs to be done “Some people seem to think judges are employees after conclusion of counsel’s addresses to the jury. In a of the Government. They’re not, and nor do they have complex case you might be preparing it as you go along, some sort of special or sympathetic relationship with the then adjusting it and modifying it as further evidence police. The Attorney-General acts as an independent law comes to light or further points arise, so that by the officer of the Crown when making appointments. Politics time you’ve heard counsel’s final addresses, you’ve got must not influence the choice of who is appointed a a fairly good draft of what you want to say. judge,” he says. “It’s critical for everyone involved that the summing Justice Randerson says being a judge is a privilege in up be as accurate in terms of both facts and law as it the sense that a person has been entrusted to exercise can be because nobody wants a retrial.” judicial power on behalf of a community. In the civil court, he says, there is usually more time “Judges do have substantial authority both in the to write a judgment as there isn’t a jury waiting. criminal and civil fields but that judicial power must “But you still want to get it out as quickly as you can. always be exercised in accordance with the law. The law I always tried to get a decision out within a few weeks constrains judges in the way they can exercise power of hearing the case while it was still reasonably fresh and if you asked any judge they would say it (judicial in your mind.” power) must be exercised with great care, caution and Larger civil cases can take longer and often a judge in an even-handed way.” will go straight into another trial and have to put it aside Justice Randerson has been both a trial and appellate for some time before writing can commence.

46 LAWTALK 910 · September 2017 COURTS

“As I used to say, it’s a bit like surfing, you have to keep Appellate Court, jurisdictions the High Court doesn’t on top of the wave, or you’ll fall off. It’s critical because have. the work just keeps coming,” he says. “I found appeals from those courts very interesting because they were fields in which I had little or no prior A trial isn’t over ‘til it’s over experience,” he says. New facts can dramatically change the direction of a case such as during a major criminal trial. Gender imbalance “The view you take of a trial, where it’s going and Male judges severely outnumber female judges, and what the outcome might be at one point can change Justice Randerson thinks that needs to change. radically when you hear further evidence and that’s true “I think we undoubtedly need more women on the of civil trials also. At the beginning of a criminal trial I bench. Those who have been appointed have proved used to say to the jury, just wait until you’ve heard all to be capable and effective judges. But the percentage of the evidence.” of judges sitting in the higher courts certainly does not Not jumping to early conclusions is a critical part of match, with the exception of the Supreme Court where a judge’s function but being ready to change your mind three out of five are women. There are only two women as further evidence is presented is also an essential skill. out of 10 judges on the Court of Appeal,” he says. There are 47 High Court Judges of whom only 15 are women. “Ideally, the composition of the bench should be aiming towards an equal number of both men and women on the bench. Women add a significant dimension to the judiciary and I’d encourage women practitioners to put their names forward and seek appointment to the bench.” Justice Randerson says women often have insights that men simply don’t have. They may think differently The appellate court to male judges, and particularly in the multi-cultural Justice Randerson has been both a High Court judge nature of New Zealand now, the bench needs to reflect and an appellate court judge, in the Court of Appeal. this better. “That was what I did during the last seven years “In the next 20-30 years there will be significant shifts of my judicial life. I was permanently in the Court of in the cultural make-up of our nation and the judiciary Appeal. The cases are very much shorter because you are needs to change to reflect society,” he says. generally not hearing the evidence. What you’re doing Justice Randerson has some sage advice for new is reading the evidence that was presented in the trial judges. court and the judgment that has been presented in the “It can be very consuming if you let it. Take time out trial court or in a criminal case, and the summing up for other interests and join groups in the community that has been presented by the judge to a jury,” he says. beyond the judiciary so that you don’t become narrow While it may appear to be less pressure, it’s not and isolated from other areas of society. That way you’ll because the job requires a huge amount of reading remain rounded and balanced. Family life and sports involved in a very short time. or similar activities are very important and cannot be “An appeal hearing might only last half a day or forsaken,” he says. ▪ perhaps two days at the most even though the case has taken weeks to conclude in the trial court,” he says. In the criminal context it might come down to whether certain evidence was admissible, the competence of the trial counsel in the way the case has been presented or whether the judge’s directions to the jury in summing up were correct. And in the civil context it comes down to whether the decision made was factually and legally correct. However, one of the advantages in the appellate court is that the judge is not alone. There are usually two other judges to confer with before a final decision is made. “With three of you working on a problem, everyone thinks of different angles and in most cases you reach a consensus fairly quickly, perhaps more quickly than a trial judge.” Justice Randerson says the Court of Appeal hears appeals from both the Employment Court and the Māori

47 September 2017 · LAWTALK 910

understanding of context occurs when the speaker and listener are present in the same place and engaged directly in the conversation. The context in which we communi- cate tells us what we really need to know about the conversation, the other person and the message. The words are only a part of that – the message will actually involve some or all of the following: • Express meaning: What is the literal meaning of the words used? • Intention: What does this speaker intend to communicate to this listener? • Awareness: What is the listener‘s level of awareness regarding what is being said? MEDIATION • Understanding: How much does the listener actually understand? • Acceptance: Which parts of the communication does the listener Better Conversations accept or reject? • Medium/Process: How was the message communicated? What Part 3: Language, messaging and was the tone, energy level or body language? the lost art of direct conversation • Systemic Context: What is the impact of the family, organisation, social, economic and political BY PAUL SILLS context, structures and systems? • Relationship: What is the rela- • The language of interests tionship and history between Why is it that when we send a carefully crafted includes open-ended questions, the parties? settlement letter explaining why we are right and the encourages public dialogues and • Emotion: What is the emotional other side wrong, the other party does not simply agree consensus decision-making with state of the parties and how has with us and settle on our terms? Might our choice of more collaborative statements, it influenced their speaking and language prevent a reply that leads to an open exchange such as “You could… You might listening, directly and indirectly? of ideas about how to solve the underlying problem? consider…” • Culture: How have cultural norms Why do so many emails and text messages offend the • The language of curiosity is a and ideas influenced the commu- recipient and lead to an escalation of the dispute? willingness to ask questions to nication, including definitions of The answer lies in the mode of communication and the which we do not already know what is acceptable behaviour. default language we use. The eminent mathematician the answer “Why…” “What…” Letters exchanged by warring par- and philosopher Kurt Godel wrote: “How…” “When…”. If we are curi- ties struggle to capture any of the “The more I think about language the more it amazes ous we better able to explore what rich context of the dispute and the me that people ever understand each other.” might be possible. relationship between the parties. It We need to think more about the tools and methods In dispute resolution parties typi- is easier to rely upon statements of we use to share our views effectively. Let’s start with cally use the languages of rights and/ power or of rights. our choice of language. or power, which are more absolute This issue is exacerbated when and less likely to invite cooperation. we use instant forms of communi- Language We seldom use the language of cation like emails and messaging • The language of power emphasises enforcement and interests, and even more rarely the systems. While it may seem efficient seeks obedience. Typically consists of pronounce- language of curiosity. to conduct all of our conversations ments or commands, such as “You must, You shall”. via these distant and abbreviated • The language of rights speaks to rules and regula- Context forums, these methods provide even tions, policies and procedures, legislative definitions Context provides vital informa- less contextual information and are and, sometimes, morality. Often includes judgement tion about every message that more likely to be misunderstood. statements such as “You should…, You ought to…” is conveyed. The most accurate This is particularly so when the

48 LAWTALK 910 · September 2017 LITIGATION

parties do not have an established LITIGATION personal relationship where knowl- edge of personality, history, etc may provide context to bare words. However, dispute resolution dis- cussions are often between relative Court costs strangers, or between parties that were close but have grown apart. Another issue with abbreviated End of the lawyer-litigant written messages is that they enable passive/aggressive tendencies. exception Everybody can be 8-foot tall and bullet-proof when sending a text or email. It is easy to “speak” in loud BY SEAN harmoniously with the High Court assertive tones on email or text with MCANALLY costs regime and that if that regime little or no thought about long-term meant to eradicate the exception, it aims or strategy, and knowing that would have said so. you need not deal with other party’s In Joint Action Funding Ltd v response. When we send immediate Eichelbaum [2017] NZCA 249 the Actual costs replies to messages we disagree Court of Appeal has concluded It is important to understand why with we normally do so subjectively, that the rule that litigants in person it is that a lawyer-litigant has which can see the “conversation” are not entitled to recover costs been able to recover costs of this (and therefore the dispute) spiral out except in exceptional cases should ilk whereas other, lay, litigants in of control in minutes. I have seen now extend to lawyer-litigants. person have not. Various policy 20 year business relationships fall The previous exception, that law- reasons have been espoused apart after 7 minutes of emails sent yer-litigants can recover their costs throughout the cases (traversed by at 11 pm at night. of a proceeding, should no longer the Court of Appeal), but the starting The art of conversation is best be applied. point always seems to have been it practised, and most effective, when The court reached that conclusion, is because the value of the appli- those involved in the discussion are essentially, because it is not satisfied cation of the lawyer’s professional sitting in the same place at the same that the exception is compatible with skill, even when acting for herself, time and talking to each other with the costs regime that has formed can be quantified – see London openness and curiosity. We seem to part of the High Court Rules since Scottish Benefit Society v Chorley avoid that situation as much as we 2000. It says so for two main reasons: (1884) 13 QBD 872 (CA). Conversely can these days and have convinced 1 Recoverable costs are only those the “private expenditure of labour ourselves that an email or text is “actually incurred” and costs and trouble by a layman cannot … it more efficient and effective while actually incurred are only those depends on the zeal, the assiduity or still “getting the message across”. encompassed within “invoices the nervousness of the individual” We have lost sight of the value rendered for legal services pro- (Chorley at 877 per Bowen CJ). of context and the importance of vided by a legal practitioner to a non-verbal cues to assist our under- litigant” (at [41]); and standing of the conversation. 2 The costs regime does not accom- Important conversations are best modate the qualification to the held in person. This has always been exception that the lawyer-litigant true, and cannot be replaced with cannot, in any case, recover costs The Court of instant access 24/7 communication in respect of “consulting, instruct- Appeal has tools. This is particularly important ing, or attending upon him or concluded for parties in dispute who need to herself ” (at [57]). that the rule be clear, precise and considered in The Court recorded that the sub- that litigants what they say to each other. ▪ missions it received did not focus in person are upon this question of compatibility not entitled Paul Sills  paul.sills@paulsills. with the High Court Rules and as to recover co.nz is an Auckland barrister a consequence it was bound to costs specialising in commercial and undertake its own research into except in civil litigation. He is also an expe- the matter (at [20]). That may have exceptional rienced mediator. This is the third disadvantaged the court somewhat cases should of three articles on how to have and I submit, with considerable bias now extend better conversations – at the heart and with all due respect, that the to lawyer- of good dispute resolution. exception does, to the contrary, sit litigants

49 LITIGATION September 2017 · LAWTALK 910

That the reasonable value of the legal professional does not follow from the rules that case of lawyer-litigants in the sense skill and labour required by the main stages of a civil costs incurred, or even those actu- that the very thing they have lost proceeding can be so quantified is at the heart of the ally incurred, must be those found in the opportunity of performing for High Court costs regime. Clause 14.2(d) records that one a bill of costs rendered by a lawyer fee paying clients is the very thing of the principles applying to the determination of costs is to her client. In my submission that (the application of professional skill) that the appropriate daily recovery rate “should normally is an artificial reading down of the that is being applied in the course of be two-thirds of the daily rate considered reasonable in rules. Not only is it inconsistent the litigation. On the assumption the relation to the proceeding or interlocutory application”. with the regime’s disdain for costs lawyer cannot be doing two things, What the appropriate daily recovery rate is in any actually incurred, it goes some way or be in two places, at once then given case depends on the categorisation of the pro- to minimising the value of the pro- there is a loss and it is quantifiable. ceeding under clause 14.3. This ranges from category 1 fessional skill and judgement we are That is not so with other litigants proceedings – being those of a straightforward nature expected to bring to proceedings as because the same, quite simply, does able to be conducted by counsel considered junior in the well as the obligations we owe the not apply. That is the very reason for High Court – through to category 3 proceedings – being court irrespective of the party for the exception and whether or not it those that, because of their complexity or significance, whom we may be acting. is “unfair” seems neither here nor require counsel to have special skill and experience – In many ways, the Court appears there. If “unfairness” were of any irrespective of counsel actually retained (r 14.2(e)). The to have treated our “costs” when relevance (and I say it is not), men- appropriate daily recovery rate for each category of representing ourselves – or our tion might be made of the fact that proceeding is as set by schedule 2 of the rules. Then, firms – as simply an “opportunity the lawyer-litigant’s usual reason for by applying the appropriate band to each of the steps in cost” which is not one “actually conducting such litigation in his or schedule 3 of the rules, it is possible to, at least notion- incurred”. For my part, I do not think her own interest is to recover unpaid ally, determine how much time the hypothetical lawyer it necessary to be too concerned remuneration for the application of applying the reasonably required care and skill can be about whether we are concerned said professional skill and trouble reasonably expected to spend in attendance upon each with an indirect opportunity cost previously exerted on behalf of the step (see r 14.5 and schedule 3). for there is a more direct means of party from whom costs now come That notwithstanding, inJoint Action Funding the Court addressing the issue. to be claimed. was concerned by r 14.2 and in particular sub-rules (e) The High Court of Australia deci- More importantly, that the excep- and (f). The relevant part ofr 14.2(e) states: sion in Cachia v Hanes (1994) 179 tion cannot for practical reasons “[What] is an appropriate daily recovery rate and CLR 403 that is particularly critical extend to lay litigants is not, of itself, what is a reasonable time should not depend on of the exception (but did not and a reason for abolishing it. the skill or experience of the solicitor or counsel could not over-rule it for it was For those reasons I submit that involved or the time actually spent … or on the costs not in issue before it) appears to it is not only the case that the actually incurred …” (emphasis added) have been mindful of the fact that lawyer-litigant’s costs are costs Rule14.2(f) states: other litigants cannot recover any that are “actually” incurred, if that “[A]n award of costs should not exceed the costs reimbursement for time lost in the is what the rules require the costs incurred by the party claiming costs” preparation or presentation of their so incurred can never exceed an The Court of Appeal has interpretedr 14.2(e) as empha- case. That being so, the High Court award of costs and offend against sising the concern with “costs actually incurred” (that opined (at 414) there was insufficient r 14.2(f). That is because the costs the Court believes can only be reflected in an invoice). I justification for the exception in regime, itself, quantifies what the submit, to the contrary, that the rule is entirely uncon- favour of lawyers. However, the costs actually are and allows only cerned with such matters and its object is to ensure, as response to that lies in the tradi- for them in accordance with their the cases since 2000 show us, that the question of costs tional justification for the exception: own provisions. is approached in accordance with the scale and not by the value – be it lost opportunity or reference to actual time spent or costs incurred or on the otherwise – can be quantified in the “Attendances upon self” actual qualities of the lawyer actually engaged (subject The Court noted that it appears to be to certain exceptions, such as applications for indemnity the case that the qualification to the costs). Indeed, r 14.2(e) tells us that the scale is to apply exception set out in London Scottish irrespective of what costs have actually been incurred. In many ways, Benefit Society v Chorley (1884) 13 QBD Contrary to the Court’s conclusion, I respectfully the Court 872, that lawyer-litigants cannot submit that the use of the word “actually” in r 14.2(e) appears to have claim costs for “consulting, instruct- is not to emphasise the importance of “the actuality”, treated our ing or attending upon him or her- but to marginalise it. “costs” when self ”, has been, largely, overlooked Rule 14.2(f) is, in fairness to the Court, the sub-rule that representing in practice. The Court went on to was predominantly relied upon and the Court could not ourselves – or find that the qualification could not reconcile the exception in issue with the proscription our firms be conveniently accommodated upon an award of costs that exceeds those “incurred”. – as simply an within the time allocations found in The Court, for obvious reasons, took the view that the “opportunity schedule 3 of the High Court Rules. reference in r 14.2(f) must be a reference to costs “actually cost” which is It noted that in the High Court, in incurred”. not one “actually the case before it, the qualification Undoubtedly that is so but my premise is that it simply incurred” had been recognised by recourse

50 LAWTALK 910 · September 2017 LITIGATION

to r 14.7 (that provides grounds for It is simply concern with the Chorley exception is more illusory refusal of, or reduction in, costs). It not possible than real. If we accept, as we must, that the costs scale considered that approach arbitrary. for a regime does not relate to actual costs and has little to no real If utilisation of r 14.7 is arbitrary, designed to be connection with what goes on in any case outside the a more straightforward means of “predictable and objectively identifiable steps that are evident from the allowing for the qualification (if expeditious” court record, then arguably the rules do not need to allowance is required) is to be found to possibly accommodate the Chorley qualification at all. They are in rr 14.3 and 14.5. In every proceed- accommodate not, overtly at least, particularly concerned with those ing the court must determine a cat- the multitudinous aspects of any given case. egory for costs purposes under r 14.4 permutations of In this vein, up until 13 June 2012 article 1 of the and that categorisation depends any given case third schedule, while still carrying the same time upon the court’s assessment of the allocations for each band, stated the relevant step was complexity or significance of the is well known, and accepted and “[c]ommencement of proceeding by plaintiff (receiving case. That categorisation applies understood, that the notional daily instructions, researching facts and law, and preparing, to the entire proceeding. However, recovery rates and time allocations filing, and serving statement of claim.…)”. Since 13 June clearly it is only certain of the have, for a variety of reasons, little 2012 the description for the same step has simply been steps provided for in schedule 3 connection with the actuality of “[c]ommencement of proceeding by plaintiff ”. of the rules that will bring the practice and the costs of litigation The point is moot, but it is arguable that since 2012 “qualification” referred to into play. and that the notional two thirds the rules may have recognised that it is not possible, For example, article 1 of the third recovery is seldom delivered. nor necessary, for them to extend their reach beyond schedule is the commencement of That is not just a reflection of the the objectively identifiable, recorded, aspects of a civil the proceeding by the plaintiff. For increasing complexity and cost of proceeding. If that is so, there is no need for the rules to a “band 3” proceeding three days litigation, but also reflective of the be applied differently to lawyer-litigants as the unrecov- are allowed for costs purposes. fact that it is simply not possible for erable costs recognised by Chorley are not, necessarily, Naturally much of the work that a regime designed to be “predict- part of the regime in any case. goes into the commencement of the able and expeditious” to possibly proceeding will be researching the accommodate the multitudinous Conclusion law and drafting the necessary orig- permutations of any given case. The The argument, therefore, is that the costs regime in the inating documentation in accord- rules are designed so that “one size”, High Court Rules is not inconsistent with the exception ance with the rules of court. A part more or less, “fits all”. Unfortunately that has traditionally applied to the question of costs in of the time spent will, conversely, clients, facts and the substantive the case of a lawyer-litigant. As the Court of Appeal did normally involve interviewing and law applicable to any given case recognise, “costs are a creature of statute” (at [8]) and it consulting with the client in order are not, of themselves, subject to or is submitted that the High Court Rules should only be to obtain instructions, identify the particularly interested in what part taken to have implicitly “repealed” the exception if that relevant facts and so forth. 14 of the High Court Rules expects were the clear intent. I submit there is no incompatibility The time allocation for a band A them to do and the time within between the two and that, as a consequence, the rules proceeding is 1.6 days. which they are expected to do it. The cannot be taken to have had that effect. That they make It is submitted that the bands in costs regime successfully delivers no reference to the rule itself, or its exception, suggests schedule 3 and the identification predictability to questions of costs no change was intended. ▪ of the steps within a proceeding but it cannot, and is not designed give the court sufficient scope to to, accommodate all of the steps, Sean McAnally  [email protected] is a recognise that there are certain attendances and requirements of partner with Auckland firm Keegan Alexander. Sean steps within schedule 3 that may any given case. specialises in commercial litigation with a particular be taken to have time allocations That does beg the question emphasis upon corporate insolvency and company premised upon certain attend- whether the Court of Appeal’s disputes. ances that a lawyer-litigant should not, according to Chorley, recover. There will, therefore, be cases that the court may decide to allocate a band to certain steps depending upon the nature of the proceeding and to allow for the qualification.

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51 IN-HOUSE September 2017 · LAWTALK 910

IN-HOUSE What are we here for? Rethinking the role of the legal function within BT BY TANIA WARBURTON

external clients). The analysis found that only 10% of I first met Dan Fitz when he was being inter- time was spent with clients, only 20% of tasks were viewed by Harvard Law School as part of their case location dependent and there was no link between the studies for the Leadership in Corporate Counsel complexity and value of the work being done with the programme. His approach to organising UK telecom- qualification or experience of the lawyer. munications company BT’s legal services stood out as The result? BT Legal looked at changing both their truly innovative, in the face of all-too-familiar financial internal structure and their external legal spend. restraint. Afterwards, Dan very kindly agreed to be interviewed for my research on different approaches Internal transformation to organising large-scale in-house legal services. This In 2010 the BT legal team was departmentalised and in turn led to a further request to be a keynote speaker scattered over four continents. The focus was on who at this year’s successful ILANZ Conference in Rotorua, they worked for rather than what they did. There was Ka Mua Ka Muri. duplication in the work across the teams. Dan decided Despite presenting via video-conference, Dan’s to adopt a shared services model. presentation held the attention of a large auditorium of This meant that many of the core delivery functions in-house counsel not just because the pressures he faced were centralised (such as commercial, litigation and resonated with all of us but because of his response to employment) and funded from a common legal budget. those pressures. He challenged our collective assump- Only those senior lawyers and teams performing spe- tions of how to deal with the ultimate in-house counsel cialist functions were retained within the BT divisions. conundrum, to deliver more value to our businesses for Dan recognised the value in having an in-house less cost. According to Dan, it has never been a better team. In-house counsel know the client better than time to be an in-house counsel. anyone else. The goal for Dan was to retain staff – by Dan Fitz was appointed Group General Counsel and moving them up the value-chain – and to manage a Company Secretary at BT in 2010. When he arrived, diminishing budget. To do that, attention turned to the he was told his budget would be cut by 5% each year. external spend. In effect, Dan retained the complex and The sector was characterised by falling revenues and interesting legal work for staff and exported the low dividends were at an all-time low. The message at BT complexity, repeat work. was everyone had to get leaner. Alternative Legal Identifying the problem Providers At that time Dan inherited 450 lawyers, split into BT Legal uses external legal provid- 26 different teams. Everyone was over-worked and ers in several different ways, relying under-resourced. There was no career development on a mix of alternative legal provid- but there were tight controls on both spending money At that time ers as well as the more traditional on external legal advice and increasing internal legal Dan inherited law firms. resources. 450 lawyers, Dan’s first foray into the world of In order to deal with these issues and the pressure of split into alternative legal providers (ALPs) a diminishing budget, Dan and his team first identified 26 different failed but BT now uses Axiom, their in-house legal objective: “to enable and protect teams. which triages all of BT’s legal work value for BT”. They then analysed how they worked. Everyone was – low complexity/high volume This involved dissecting the legal functions (both over-worked drafting tasks are allocated to Axiom internal and external) right down to a granular level and under- (and other legal providers) and the (drafting, negotiation, research, meeting internal and resourced. complex work goes to BT Legal.

52  Photo by Flickr user Paul Hudson CC-By

This means that essentially all of BT’s standard work external counsel. (anything under £3 million contracts) is outsourced. BT Legal handles 3000 requests for legal services and The use of a fixed price contract allows Dan to manage the ALPs now do 70% of the work. In-house BT Legal staff the external legal spend. are moving up the value chain, delegating the low-value work to the ALPs. BT Law Limited In the next three years, BT Legal wants to set “zero- Dan didn’t stop there. He also embraced the changes touch” boundaries, removing the need for legal input to the regulation of legal services that took place in the on most individual contracts. United Kingdom at about the same time as New Zealand For New Zealand in-house legal teams, BT Legal’s and became one of the first in-house legal departments innovations give us more options to consider than to obtain an alternative business structure licence and the usual go-to solution: briefing out the top/high end launch its own legal process outsourcing venture. work to cope with increased demand. We need to look BT Law Ltd handles small tort claims. It originally at building our in-house legal capacity to ensure job arose out of dealing with insurance recovery claims from satisfaction and rethink the ways we outsource and visits by BT engineers (bumps, scrapes and breakages) manage our external legal spend. but has since expanded and is offering its services to As a starting point, we need to thoroughly understand other businesses, such as courier companies. The extra what work we currently provide to our businesses and revenue feeds into Dan’s budget. question whether what we are doing is the best use of our value-add as in-house counsel. Knowing the answer What now? to that question, will help us determine what the next Seven years on, BT’s legal team is smaller but more steps should be. As Dan concluded at his ILANZ seminar: cohesive. Today there are 275 lawyers across BT. The “Never be a slave to the model – the model is there to legal spend has significantly decreased: the BT legal serve your purpose.” ▪ team’s commercial spend is 75% lower than it was in 2010. Senior legal team members have developed as Tania Warburton was awarded the 2015 ILANZ business managers and there is a strong sense of where Scholarship. Her research topic was the government BT Legal is heading and comfort with that direction. legal in-house model: international case studies – Work is now assessed by looking at how to get the best responding to change. The full report is available quality within the price boundary: ALP or in-house or on the ILANZ website,  ilanz.org.

53 PRACTICE What it’s like to start your own law firm?

BY KATE GEENTY

Also, more legal teams want to pro- keep these at the forefront. We are The idea of starting her own business percolated fessionalise their service delivery clear about the value we bring and for about two years before Helen Mackay decided to model with the business as most ensure we recruit only the best make the move out on her own. “I’ve always been an face overwhelming workloads unless talent from the in-house legal pro- in-house lawyer, so the idea of opening a traditional law they put in place clear boundaries. fession to be Juno lawyers.” firm never appealed to me. But the emerging demand for “There was a gap in the market Ms Mackay has a business degree an alternative law firm or hybrid legal services provider and both the supply and demand as well as a law degree, which she fitted what I wanted to do next.” sides were there. This is a proven says has been helpful in the process That alternative law firm is Juno Legal, which started international model and one that of starting her own business. She up in April in Wellington. Ms Mackay is the director complements the more traditional deliberately operates with a lean and has eight experienced in-house lawyers working law firm model. Established firms start-up mindset rather than a tra- with her or about to come on board. Juno provides are being welcoming and supportive ditional law firm approach. seconded in-house counsel into companies that need which we really appreciate.” “I’ve been going to business additional resource whether temporarily, such as for A lot of market research went on accelerator courses at Biz Dojo in parental leave cover, for projects or governance work, before Ms Mackay opened Juno’s Wellington, I’ve met with people or ongoing on a flexible basis. It also does consulting doors. “I spoke to more than 50 at Creative HQ and the Wellington work on the strategy and performance of in-house legal general counsel, chief legal advisors Regional Economic Development teams and consults with legal teams and law firms on and CEOs, including in similar law Agency, and I have a business how they can use technology to help their lawyers be firms and businesses in Australia strategy coach on board. We have more effective and efficient. and the UK, to get a really good idea designed sound systems from the The idea came about partly due to Ms Mackay’s previ- of what worked best for their clients bottom up and our legal technol- ous role heading up ILANZ, the In-house Lawyers section and lessons they learned. ogist, Matt, has ensured we use of the New Zealand Law Society. “Our drivers are to lift capability technology in smart and disciplined “Over the past few years, I had a number of general across the in-house legal profession ways, just as he helps our clients counsel approach me who needed flexible legal resource and to create flexible pathways for to. We encourage collaboration and a lot of lawyers who wanted flexible opportunities. lawyers so we are very careful to throughout the in-house legal

54 LAWTALK 910 · September 2017 PRACTICE

profession and try to connect differ- friends. “We had a respect for each other, but I think it absolutely, but I think there comes a ent clients with similar challenges was useful that we weren’t too close then in terms of point where it can become destruc- to learn from each other.” our friendship,” says Ms Drayton. tive and not necessarily bring out the In terms of coming up with the They knew they were aligned in terms of their best in people” says Ms Drayton. She business name and branding, she values and how they wanted to work, and set about says they try to share work fairly and canvased friends, family and col- crafting a detailed vision for how they wanted their equitably. “It’s based on who has got leagues for their opinions. She says firm to evolve. capacity and who has got the right set it’s easy to get bogged down and The partners started with an agreed value statement of skills. We’ll often give someone a believes it’s important to maintain and a clear business plan. With the help of their lawyer, job because they need to have that momentum, remembering that they negotiated a partnership agreement. “We wanted experience and develop.” done is better than perfect. “You’ve to start with a very clear sense of what our business got so many decisions to make is about, what our firm would stand for and who we Renewed vigour and when you’re setting up a business, wanted to be. That gave us a rock-solid start.” different stresses particularly a law firm, that actually Ms Drayton says setting up the firm you need to just make a decision, Good communication has given her a renewed passion and move on to the next one and not Working out how to effectively communicate with each excitement about the law. “It’s really get too caught up, whether it’s your other has been key to their success. The pair believe invigorating. The sense of engage- name, your brand identity or your that by developing good communication patterns and ment that I have with my work is website, just keep moving.” addressing issues as they arise, it’s possible to avoid the heightened because of the fact I am politics that can arise in larger firms. “If we didn’t get running my own firm with Steph. Going into partnership on, or agree on a lot of things, and have ways of sorting I think it makes the work even Johanna Drayton and Steph out our differences then we would not survive,” says more meaningful. You get to craft Dyhrberg opened Wellington bou- Ms Dyhrberg. and tailor the way you do business tique employment law firm Dyhrberg and develop your own approach Drayton Employment Law in 2011. Being the boss without the fetters of bureaucracy They came together at a time when Despite both having prior experience of hiring and men- or the political environments that Ms Drayton was looking to move on toring staff, doing it as the bosses was still a learning can come from bigger firms.” from the boutique litigation firm she curve. “It’s very different when you are the boss, paying In terms of stress, Ms Drayton was working at, and Ms Dyhrberg the bills and making those tough decisions. Giving says the pressure of running a firm was looking to scale up after working feedback is very different than when you are a senior is different but not necessarily in sole practice for six years. solicitor or associate, so we’ve had to learn a lot about bigger than working for someone They’d known each other for hiring and managing staff,” says Ms Dyhrberg. else. “There are different stresses 20-odd years in a professional sense Creating a collegial environment was important to because you’ve got responsibility and were friendly colleagues, but them, rather than the competitive scene often found in for payroll and all the bills, but you at the time were not close personal bigger firms. “Competition is healthy to a certain extent, are also able to influence.”▪

Top Tips • “Think about your ‘why’. What are the factors driving you to set up your 5 DAY MEDIATION firm? Are you crystal clear about your values? WORKSHOPS • Do your research. Carefully identify who is in your target market, who are your The theory and practical ideal clients, is there a gap in the market for what you are wanting to do? skills of mediation • Focus on your niche. Be clear about the work your firm is going to do and just as clear about what you are not going to do. Auckland: 21–25 November 2017 • Make connections. Find someone who has a firm or business you admire Wellington: 20–24 March 2018 and connect with them on LinkedIn or give them a call. Ask them how they Register did it and whether they have any lessons for you. People are often happy to online www.resolution.institute help and the more connections you can make, particularly in a small market like New Zealand, the better.” 2017 Conflict Resolution Conference • “Take the leap of faith, do your due diligence, believe in yourself. If you’re & Elder Focus Day going into partnership make sure it’s with the right person,” says Ms Drayton. Wellington: 1–3 November • Don’t just focus on the nuts and bolts of setting up (e.g. finding premises, www.confer.co.nz/crc setting up bank accounts, choosing logos etc). Spend time thinking about how you want to function as a business and as a partnership or a team, and what you want your brand to be. “Because if you’re not out there with a Incorporating saleable brand and a way of doing things that people respond to, you won’t & IAMA be able to sustain yourself,” says Ms Dyhrberg. • Hiring excellent staff is key: be thorough and follow good processes. Ensure Freephone 0800 453 237 a values/cultural fit.

55 PRACTICE September 2017 · LAWTALK 910

PRACTICE Pricing and the ‘Dunning-Kruger Effect’

BY RICHARD BURCHER

This pattern of individuals may underestimate their relative compe- When working with partners over-estimating tence and may erroneously assume that tasks that are to assist them on a specific pricing competence easy for them are also easy for others or at least are proposal, all too often the conversa- was seen in likely to be perceived by others as being easy. tion goes something like this; studies of skills This often leads to practitioners making comments “So what levels of resourcing will as diverse like, “Oh, it should only take me a couple of hours so be required for this and how long as reading perhaps $700-$800”. do you think it’ll take?” comprehension, There are two problems with that mindset: “Well, with a fair wind and practising 1 Displaying all the characteristics of Dunning-Kruger assuming all goes well and the other medicine, Syndrome, the partner convinces themselves that the side isn’t difficult and my client operating a piece of work is not a big deal as they can knock it takes a reasonable position, and if motor vehicle, out in a couple of hours or so because (for them!) it is Halley’s Comet doesn’t strike…” and playing relatively straightforward. This ignores the fact that “Stop, stop; when has anything games such as it may only be relatively straightforward for them ever gone well in your entire career?” chess or tennis because they are expert in the field and have 25 years’ “Well, now that you mention it, experience of that issue. never!” 2 With this mindset, despite the potentially significant Why the perennially ebullient value that that piece of work might deliver to the client display of optimism? his face from being recorded on in both financial and non-financial terms, the partner Part of the explanation lies in the surveillance cameras. has artificially proscribed their pricing parameters by partner’s inclination to avoid a price, This pattern of over-estimating reference to the time/production cost. which is sufficiently high that they competence was seen in studies This issue is at the heart of the distinction between are unlikely to get the particular of skills as diverse as reading com- value pricing and cost plus pricing. While we continue piece of work. prehension, practising medicine, to content that it is essential to understand one’s pro- However we have never felt that operating a motor vehicle, and play- duction costs at a practice area, fee earner, client and this was the whole of the expla- ing games such as chess or tennis. matter level, the imperative to move towards value nation but we think we may have Dunning and Kruger proposed that, billing continue to gain momentum, particularly with stumbled across another piece of the for a given skill, incompetent people the advent of increased efficiency technology. The issue puzzle – Dunning-Kruger Syndrome. will: brings to mind a delightful line from a New Zealand At first blush, it does rather look • fail to recognize their own lack High Court decision: like a rare and malevolent strain of of skill, “If counsel is entitled to say ‘I have reached some pathogen but happily it is rather • fail to recognize the extent of their degree of seniority and therefore I am entitled more benign. inadequacy, to X number of dollars for every hour that I am David Dunning and Justin Kruger • fail to accurately gauge skill in professionally engaged’, then the incompetent of the Department of Psychology at others, will be encouraged to be prolix and dilatory and Cornell University first observed • recognise and acknowledge their the efficient and truly skilled will be inadequately the phenomenon in a series of own lack of skill only after they rewarded.” experiments in 1999. The study was are exposed to training for that Holland J in Re JBL Consolidated Ltd (in receivership) (1982) inspired by the case of McArthur skill. 1 NZCLC 98,424. ▪ Wheeler, a man who robbed two However, it is the other aspect of banks after covering his face with their finding that may go some way Former New Zealand lawyer Richard Burcher lemon juice in the mistaken belief towards explaining why some law-  [email protected] is managing that, because lemon juice is usable yers approach pricing the way they director of London-based legal services pricing as invisible ink, it would prevent do – and that is that high-ability consultancy Validatum.

56 LAWTALK 910 · September 2017 PRACTICE

PRACTICE Why specialisation is only part of the answer for lawyers

BY MICHAEL under the knife, I want her to call concept and offers little value to SMYTH in the appropriate expertise to them (so they think). assist. Therein lies the problem for specialist lawyers. Where does that When I worked in London in the early 90s, I In this day and age clients have leave the client? worked in a small two partner firm in the Inner Temple. more complicated problems which In a recent survey of 79 New We had a wide client base who had all sorts of problems. may span various areas of law or Zealand consumers of legal ser- We were what some might call a ‘generalist’ firm. The even different jurisdictions. As vices carried out by Approachable rule was that we took anything on, and generally did. a specialist lawyer this poses a Lawyer, 55.6% said they would One of the ways we did that was by making good use dilemma: do you give advice on prefer access to a team of lawyers of the specialist bar which allowed us to draft in expert something you don’t know much each with their own expertise who advice when we needed it. about (and risk a PI claim) or do you work together on their business, Contrast that with the more recent trend for boutique refer your client to a rival firm who with only 37% saying they preferred law firms that specialise in only one area of law (eg, holds the expertise (and risk losing to deal with just one lawyer. There employment or IP) or which specialise in only one the client to another firm)? is nothing surprising about these market segment (eg, sport or technology). That’s a tricky decision to make statistics. Some respondents Outside the large firms, generalist small firms are and will often involve a delicate risk clearly value the relationship they becoming fewer because all young lawyers are told to assessment on both sides of the have with their lawyer but the specialise. But is that a good thing? equation. This decision illustrates majority express their preference the problem of specialisation: you for specialist advice. But what if Why specialise? can’t be everything to your client. you could have both? That’s where There are two very different reasons why lawyers the generalist lawyer holds all the are told to specialise. The first relates to the growing Don’t think the big cards: until he drops them. complexity of law. Take employment law as an area firms have it right Fortunately, this conundrum is in which practitioners specialise and where boutique If you are sitting in a small firm not without a solution, which is spe- firms have emerged. In any area of law which is judged thinking that the big firms have cialist collaboration. However, that by what a fair and reasonable employer could do (s it right, don’t assume the grass is uncovers an even bigger problem for 103A Employment Relations Act 2000) it is easy for a greener on the other side. Whilst big and small firms, namely how do ‘non-employment’ lawyer to trip up or give misleading it tempting to think that when you do it? ▪ advice. Of course, that then raises the spectre of profes- you have a multi-faceted problem sional indemnity claims – something all law firms seek in a big firm you can stroll across What are your thoughts on spe- to avoid. Have too many of those and your insurance the corridor to the person with cialisation vs generalisation and premiums start creeping up. the expertise, that doesn’t always do you think the profession can The second reason has nothing to do with law at all, happen. That’s because big firms adapt to specialist collaboration? but marketing. There is a term called ‘niche marketing’ have their own internal politics which essentially means concentrating all your mar- to deal with. Probably the same This is the third in a four-article keting efforts on a very specific market segment with politics that saw the employment series on themes arising from a clearly identifiable needs. By marketing yourself as the team set up their own law firm. recent survey of 79 New Zealand expert to this niche, you will stand a far greater chance Research conducted by Heidi K legal services users. Michael Smyth of winning the work compared to someone who is a Gardner reveals that whilst lawyers  michael@approachablelawyer. ‘jack of all trades’. This theory holds true, but up to a are good at delegating downwards com is a sole practitioner and certain point. (ie, to junior lawyers) they are not director of Approachable Lawyer very good at collaborating with their Ltd. He has been in private practice The lawyer’s dilemma peers. That’s particularly the case for for 22 years, six of those working There is no doubt that consumers seek out experts. If ‘solo specialists’ who have earned in London. Michael has a keen I need open heart surgery, I am going to seek out a their reputations by becoming good interest in understanding how legal heart surgeon, not an orthopaedic surgeon. But if my in the niche and working on their services can be delivered more heart surgeon finds something wrong with me whilst own. Collaboration is a foreign efficiently to meet the client needs.

57 PRACTICE September 2017 · LAWTALK 910

PRACTICE CLOCKBLOCKER 4. We are not afraid The Lawyers of NOW refuse to live in fear. The legal profession often We are the Lawyers looks down on those who dare to be different and innovative. But we don’t let this stop us. We know of NOW: A Manifesto that a failure to be ourselves and embrace new skills could mean the demise of our profession. We BY CLAUDIA are proud to be the innovative KING Lawyers of NOW. Even though the opinions of other lawyers can be their businesses and we applaud intimidating, we are gutsy enough Do you know what I’m excited about? The change them. We acknowledge there are to carry on innovating and doing in the air. The buzz. The nervous energy. The sense that risks for lawyers with using tech- our thing. something epic is happening. Can you feel it? The last nology, but we believe these risks 6 months or so has seen a flurry of innovative activity are far outweighed by the benefits. 5. We are diverse in the legal industry in New Zealand and overseas. I’m The Lawyers of Now come in all super proud of our profession, which is often traditional 3. We are biz savvy shapes and sizes. Our clients are a by nature, for being curious and trying things out. Being a lawyer is not an excuse diverse bunch of peeps and so are When I was at LawFest a couple of months ago I was to shy away from being savvy in we. We bust out t-shirts, tattoos, impressed at the discussions and questions being asked business. The Lawyers of NOW use jeans, colour, humour and hash- which show mindsets are shifting. Lawyers are opening their legal training to recognise and tags. We work part-time, full-time, up to change and looking at the possibilities. We’re not evaluate risk to their advantage and flexible hours and remotely. We only looking, we’re actually giving new opportunities make smart decisions for our careers bring our kids to work, breastfeed and technologies a whirl. We are standing up and and businesses. We don’t let a bit of at work, and work from the road refusing to be clockblockers who will be left in the dust. calculated risk stop us from being while travelling to places we want My new feelings of pride for our profession have business savvy. People learn from to explore. We value each other’s inspired me to write a manifesto for the Lawyers of their mistakes, so we don’t let the differences. NOW. This is what we’re about. Let’s hit it: fear of failure hold us back. 6. We recognise our duty 1. We are authentic to do epic shit NOW The Lawyers of NOW are not beige. We believe it is time The Lawyers of NOW know life is to wash off the “beige-ing” caused by law school and not a dress rehearsal. We don’t let working in more traditional firms which made us feel ourselves become miserable in our we couldn’t be our true selves. We don’t hide our per- jobs. We embrace our fabulousness, sonalities. We let them shine. We are no longer confined weirdness and unique skills and to the traditional corporate lawyer mold that’s boring Being a lawyer share them with the world. We as hell. Being professional doesn’t mean we have to is not an know what we want our legacy to be pretend we’re someone else while we’re at work. excuse to shy be. We fiercely make bold moves to We don’t hide behind the armour of boring suits and away from create lives that we crave. makeup. We know what our values are, and we make being savvy decisions and act from the heart. As Seth Godin says, in business. 7. We do not wait “fly your freak flag”. Don’t worry, we will. The Lawyers of for permission from NOW use their clockblockers to 2. We champion technology legal training to create change The Lawyers of NOW improve their technology knowl- recognise and The Lawyers of Now do not need edge and skills every damn day. We see technology as evaluate risk to someone else’s permission to act. a vital tool to make the law more affordable, under- their advantage We know that if we don’t keep our standable and accessible for our clients and commu- and make smart knowledge and skills current with nities. We know that saying we’re too busy to learn decisions for the latest technology trends we will new technologies is an excuse that clockblockers use our careers and be replaced by people who do. We because they’re afraid. Avoiding technology out of fear businesses. will not let clockblockers hold us that we’ll make less money or won’t get the same level back from defending our careers, of respect from our peers is clockblocker behaviour. businesses and incomes in the age We see other industries like our buddies in accounting of automation and AI. We create profession embrace new technologies to future-proof meaningful change today.

58 LAWTALK 910 · September 2017 PRACTICE

PRACTICE 8. We are committed to helping the clockblockers The Lawyers of NOW relentlessly try to convince the clockblockers that Do you love they must get with the programme. We do so assertively and respectfully. We are grateful to the clockblockers your job? for their incredible training, mentor- ship and support. We wouldn’t be where we are today without them. BY KATE To show our appreciation we are GEENTY ferociously committed to dragging the clockblockers ahead of the wave of change hitting the legal industry Highly corrosive so their legacies will live on. Are you one of the minority An unmotivated, disengaged who loves their job and goes the employee is likely to show a lack 9. We create time to do extra mile, or are you coasting along of energy, enthusiasm and effort. what matters most with the disengaged majority of “That can look like not offering to The Lawyers of NOW are not slaves workers? take things on that are needed, to the billable hour. We work smarter, According to global research com- lower rates of productivity, not not harder. We find clever and innova- pany Gallup, just 24% of employees participating in things that are seen tive ways to work so that we can free in New Zealand and Australia love as extra,” says Ms Thompson. up more of our time to spend doing their job. The rest are not that fussed, The lack of motivation can be the stuff that floats our boat. We use with 60% not feeling engaged and catchy, with negativity spreading to innovative pricing techniques. We use 16% actively disengaged in the a disengaged worker’s colleagues if technology to automate repetitive workplace. left unchecked. “We’ve discovered processes and document preparation Gallup categorises engaged from neuroscience that our moods so we can focus on high value work employees as those who “work are contagious and that culturally that really spins our wheels. We turn with passion and feel a profound there can be sets of beliefs that are our expertise and intellectual property connection to their company”. contagious. So, if there are some into products that we can sell online Gallup says these workers “drive employees that are having negative over and over again with little extra innovation and move the organisa- conversations about the workplace, effort. We say no to the never-ending tion forward”. On the other hand, then that’s highly corrosive.” rat race that makes so many lawyers employees who are not engaged miserable as they don’t get time to do have essentially checked out of their Trapped what they love. jobs. “They’re sleepwalking through Some employees may feel trapped their workday, putting time – but in a role they don’t like, or they 10. We have each not energy or passion – into their might be unsure of where to go next. other’s backs work”. Disengaged employees take “They’ve got a mortgage to pay, they The Lawyers of NOW understand things a step further. They are not don’t know what else they could do, that everyone is fighting their own just unhappy at work; they act out or they just might not know if it’s battle. We represent our clients to their unhappiness. “Every day, these time for a total career change or just the best of our ability while still workers undermine what their a change of organisation,” says Ms supporting our fellow lawyers and engaged co-workers accomplish.” Thompson. treating them with kindness and Having actively disengaged staff Sometimes, the thought of walk- respect. We reach out to our col- can be costly, with Gallup estimat- ing away from a career or a job that leagues to celebrate their successes ing that in the United States alone, has taken years of study and work and to commiserate and offer help active disengagement costs between to attain is too difficult, even if the when times are tough. ▪ US$450 billion and US$550 billion reality of the job doesn’t live up to a year. expectations. Claudia King  [email protected] It’s also costly on a personal It’s not impossible for a disil- is CEO and co-founder of Automio, level for employees. “It saps well- lusioned employee to rediscover having recently left legal practice being, vitality, satisfaction and their work mojo, but it takes some to focus full-time on delivering law fulfilment,” says former lawyer effort. “It takes multiple touchpoints online and using technology to Andrea Thompson, who now runs to re-engage someone,” says Ms make law firms more efficient and the Wellington-based leadership Thompson. “Sometimes it comes profitable. consulting firm Catapult. from within – someone saying ‘I’m

59 PRACTICE September 2017 · LAWTALK 910

not willing to tolerate feeling this way’. I think there are often competitive between firms own and the company’s future. “This really high standards of personal professionalism within and competitive inside firms. They means focusing on concrete perfor- the industry which keep people driving themselves to don’t drive a sense of belonging or mance management activities, such be productive.” co-operation or cohesion, which are as clarifying work expectations, key motivators for people at work.” getting people what they need to do The importance of managers their work, providing development Managers play a crucial role in staff engagement. Ms Improving and promoting positive co-worker Thompson says managers need to be leaders and to treat engagement levels relationships.” employees “as people and actually care about them, Law firms need to look at how effec- and not just relate to them as units of production for tive people are in management roles Communication is key their own targets”. in terms of delegating and coaching Employees want to feel like they are She says staff often leave a role because of a poor staff, says Ms Thompson. “Are they valued and listened to, according to relationship with their manager. “In a law firm context having really good check-in conver- recruitment specialists Hays. In a a manager is the source of work and the source of team- sations about how a person is doing white paper called Staff Engagement work. What are the key things people want out of work? beyond just a task? I think across Ideas for Action, Hays says giving an Mastery, purpose and a level of autonomy. The manager law firms coaching skills are very employee a voice is far more impor- is in a key position to either provide that or erode that.” variable.” tant now than it was 10 years ago. At an organisational level, firms “Employees want to feel that their Challenges of engagement in law firms need to look at their engagement differences are valued and that they The way that law firms are set up can make engage- tools. “Things like, are performance can not only share their opinions at ment difficult. “The partnership structure drives -com conversations just a compliance work but that those opinions will be petitiveness between partners and a lack of cohesion exercise or a true commitment? Is respected. This makes the emerging and co-operation. It’s often quite hard to find a sense the organisation looking at trends concept of diversity of thought a val- of common purpose or vision. I think across the legal and themes in engagement levels uable one in employee engagement profession it’s very luck-of-the-draw as to who people and what they can do with HR or terms.” end up working with, and whether they actually value people processes?” Employees want to understand people,” says Ms Thompson. Gallup says the best way to the organisation’s objective and Andrea Thompson thinks law firms need to embrace engage staff and improve business strategy and how they can con- a collaborative way of working, rather than the more performance is to treat employees as tribute to achieving them, the firm traditional competitive culture. “Law firm cultures are if they are stakeholders in both their says. “So increase communication flow, keep it regular, and provide an opportunity for employees to ask questions and raise concerns.” Top 12 engagement factors Feeling appreciated and having Source: Hays Australia & New Zealand. For the study 396 employers and 800 job seekers from their achievements noticed is Australia and New Zealand were surveyed. another important part of moti- vating people. “Employees want % of employees who rate to know how their success will be Rank Engagement factor this as a ‘very important’ measured and what achievements or ‘important’ factor constitute success in order to feel 1 A feeling of being valued by the organisation 97 that their work is achieving some- 2 Recognition for a job well done 95 thing. They also want to feel that their efforts are valued and that An understanding of how your success will be 3 95 they are recognised when they do measured a good job.” Clear understanding of how your role helps the 4 94 In the spirit of clear commu- organisation achieve its objectives nication, Hays says performance Clear communication of the organisation’s management should go further 5 94 objectives and strategy than simply conducting an annual 6 A feeling of inclusion, where differences are valued 93 performance review, suggesting regular progress reviews have more Feeling like you have a ‘voice’ and can share your 7 93 impact, especially if they are a two- opinions at work way process. 8 Seeing action taken as a result of your feedback 92 Investing in learning and develop- Clear understanding of how your role contributes ment is also a “crucial tool” in both 9 92 to the organisation’s success looking after staff and helping them 10 A good induction and onboarding process 91 develop their skills, says Hays. “And by showing you care about their 11 Regular learning and development opportunities 91 skills development, you improve 12 Yearly salary reviews 86 engagement levels.” ▪

60 LAWTALK 910 · September 2017 COMPLAINTS

COMPLAINTS

Lawyers Complaints Service

Censure and fees in full. more care” in similar circumstances. “The standards committee was pleased “When approached by someone for (pre- fine for failing to that Mr Jefferies had acknowledged his liminary) advice regarding legal matters, it responsibility for [the barrister]’s fees,” would be best practice – particularly when pay barrister it said. the person is unfamiliar with engaging law- At the same time, Mr Jefferies had yers – for a lawyer to make it abundantly Keith Jefferies who was acting as an refused to pay the barrister for a “consid- and expressly clear if they are not (or not instructing solicitor has been censured and erable amount of time, and had continued yet) acting as the person’s lawyer,” the fined $3,000 for failing to pay the fees of to dispute his responsibility for the fees committee said. a barrister. throughout the complaints process”. Following earlier email and text contact, The barrister complained that Mr The committee ordered publication arising outside of a professional context, Jefferies did not pay her fees promptly and of the facts of the matter, including Mr B met Mr A and his uncle two days before in full as required under rule 10.7 of the Jefferies’ name. It noted that “r 10.7 was the Māori Land Court hearing. The meeting Lawyers and Conveyancers Act (Lawyers: in place to protect barristers – who are not was not at B’s offices. Conduct and Client Care) Rules 2008. entitled to sue for their fees – and it was In explanation B said that at that meet- The lawyers standards committee dealing therefore important to promote adherence ing Mr A was encouraged to request an with the matter also ordered Mr Jefferies to to this rule amongst the legal profession” adjournment. B called the Māori Land rectify his omission by paying the barrister The committee also ordered Mr Jefferies Court on her phone because Mr A had no her outstanding fees of over $35,900. to pay $1,500 costs. ▪ credit on his. B spoke only because Mr “The standards committee was satisfied A and his uncle said they had difficulty that Mr Jefferies’ conduct, in failing to pay hearing on her phone. the reasonable fees of a fellow practitioner, Be very clear if She said she told Mr A his case manager clearly fell below the standard expected of was not available but the court would send a lawyer, and that the profession, and the you are not acting an email to the case manager who would public at large, were entitled to be made contact him. B explained that she took Mr aware of the conduct,” the committee said. A lawyers standards committee has A’s file in order to prepare a chronological Mr Jefferies instructed the barrister to assessed the actions of a lawyer as “not summary, seemingly on the basis that this perform work relating to civil proceedings particularly wise”, serving as a reminder for would only be done if her law firm was brought against a Mr and Mrs C in the High other lawyers. The lawyer did not believe subsequently instructed. Court. she had been instructed and the committee B’s interpretation was that Mr A would The work was completed and the barris- could not find persuasive evidence she had represent himself at the hearing and he ter rendered three invoices to Mr Jefferies. been engaged. However, the lawyer met planned to hire a lawyer after that. The invoices were not paid. with a party to a proceeding, accepted a However, Mr A’s position was that he had Mr Jefferies alleged that he was not file from him and called the Māori Land instructed B to act for him and the trust, responsible for the fees, as a separate fee Court about a possible adjournment of a that she failed to appear at the hearing arrangement was in place between the hearing. This gave rise to a complaint. and that she misled him and his uncle barrister and Mr and Mrs C. The complainant, Mr A, said that the by advising them she had obtained an “However, Mr Jefferies had failed to pro- lawyer, B, had been instructed by him to adjournment. vide any credible evidence to substantiate act for a trust, had failed to appear at the The committee noted that this was a his claim that any relevant agreement was hearing in the court and had misled him situation where the complainant’s and entered into, including when it may have that she had obtained an adjournment the lawyer’s description of events were occurred and how it was concluded,” the for the hearing. The adjournment had not “entirely at odds with one another”. It committee said. been granted. considered “persuasive evidence” was The failure to pay fees, the committee The committee found that the complaint required in order to make a disciplinary found, was unsatisfactory conduct. had not been proven on the balance of proba- finding on a relatively serious complaint At a hearing on further orders and bilities and decided to take no further action. and was unable to conclude there was publication, the committee noted that Mr However, it decided that the facts of the such evidence” that B had lied or that she Jefferies had, following the issue of the decision should be published as a useful had been engaged to act and then failed determination, agreed to pay the barrister’s warning to B and to other lawyers to “take to appear at the hearing. ▪

61 PATHWAYS IN THE LAW September 2017 · LAWTALK 910

PATHWAYS IN THE LAW Claro the health law firm

BY NICK BUTCHER

serving the legal sector for five Claro is a specialist health years. sector law firm with offices in Claro covers all key legal aspects Christchurch, Wellington and of the health sector including med- ▴ Dr Jonathan Coates, Partner Auckland. ical law and treatment issues, com- Its team has a breadth of experi- pensation and claims for damages, ence in this important area of law. mental health, disability and health “Perhaps what I enjoy most about and safety. working in the health sector is the variety,” says one of the two part- Behind the name ners, Dr Jonathan Coates. The move to establishing Claro “In any given week, our team is was a natural fit for the partners, likely to be prosecuting or defend- Dr Coates and Anita Miller, as they ing a health practitioner before the were already specialising in health Health Practitioners Disciplinary law and the health sector generally. Tribunal, advising on a difficult gov- Claro means clarity and focus. ernance and conflict of interest issue “We didn’t want to do the tra- for a DHB Board, working on some ditional last name/ last name law litigation involving the structure practice. Claro comes from Spanish of health services or clinical negli- and Portuguese origin. Claro reso- ▴ Anita Miller, Partner gence, advising on how to manage nates with our brand values of being a practitioner who is failing, seeking very clear and concise as to who we urgent treatment orders from a are and what we do. It’s a name that court for an incompetent patient, has taken on more meaning over Work-life balance or advising on a large outsourcing time,” says Dr Coates. Flexibility is a key component of the success story at arrangement.” When meeting the Claro team, Claro with many of the legal team members juggling The firms’ origins lie in a large a strong sense of passion for the busy work commitments with young families. national law firm. Staff have been health sector, and the health law “As flexible employers, we are equally lucky that we area of practice, is evident. have flexible employees. Some of our team will work “For me, I find it a very human a minimum number of hours. Some will start at half aspect of law, a fascinating interface past seven and they’ll finish work by mid-afternoon between science, people and law,” so they can pick the kids up from school. We’re quite Claro covers all says Ms Miller, who is currently relaxed with that because the work gets done,” Ms key legal aspects completing a Master of Laws at Miller says. of the health Victoria University, Wellington. Technology helps make this style of working sector including She is a specialist in the regula- arrangement efficient and, like many law firms, all medical law and tion of health professionals, and Claro employees have access to firm documentation treatment issues, she advises extensively on the through the cloud. compensation Health Practitioners Competence “But that’s not intended for people to be working all and claims for Assurance Act 2003. night. It’s more like, ‘so one of my kids has a cross-coun- damages, mental Dr Coates has been included in try race this afternoon. I’m going to go home at lunch- health, disability Best Lawyers in New Zealand in the time, finish this job, go off to watch the race’. It’s that and health and practice areas of Health Care Law level of flexibility we offer.” safety. and Medical Malpractice Litigation. Jonathan Coates, who has a PhD in health law, says

62 LAWTALK 910 · September 2017 PATHWAYS IN THE LAW

their number one driver is meeting commercial lawyer. In her previous client demand and that is never life she worked at a large national compromised. law firm and has also held in-house “Sometimes you have to work roles. different times of the day to achieve Mr Le Cren is a special counsel, this. We’re happy for people to fit focused on litigation, who has three in everything else that they’ve got primary school age children. on in their lives. And it seems to “When you have children, your work well for us. We have to be whole life is turned upside down different because we are working and so the way you need to work across three offices. We’re a paper- changes completely,” Ms Weir says. less office, so we access our files ▴ Rachael Heslop, General Manager/Policy Consultant At Claro, she normally works two electronically from wherever we days a week but will periodically have wi-fi.” increase her hours in order to work While small law firms tend to on larger projects that the firm has specialise in a particular area of on. practice such as employment or “For example, we recently environmental law; Claro is differ- assisted a DHB with a large pro- ent in that it is focused on a sector curement project, worth over $100 rather than an area of legal practice. million, for diagnostic laboratory At Claro, support and professional testing services. development is a priority. “During that project I was work- “We meet as a whole firm weekly ing 30 and sometimes 40 hours a to discuss the jobs we have on and week but once the project was also meet on a monthly basis where ▴ Aisling Weir, Consultant over, I went back to my normal one of us will talk about a recent hours. Working this way requires case or legal issue that has come up. me to have very flexible childcare We also do a similar thing with one arrangements and that can be of our client’s in-house legal team. tricky at times but it also means One of us will present on an issue that I get to do interesting work and we will discuss it with them,” and spend a good amount of time Anita Miller says. with my kids while they are little,” Dr Coates says they also spend a she says. lot of time working with clients to Ms Weir says it’s a flexibility she ensure they understand their legal could not find working in her pre- obligations in the health sector. vious role at a large law firm. Another aspect of the adaptabil- Working in the Pacific ity is working from home. Belinda The general manager and policy Johns works one day a week from consultant, Rachael Heslop, isn’t a ▴ Peter Le Cren, Special Counsel home as do other staff members lawyer but plays a key role in regula- from time to time. As Mr Le Cren tory work the firm is involved in, as explains, in a sense Claro lawyers all her background is in public policy. undertaking to get there as the boat goes once every work remotely because the offices Recently, she visited the remote two weeks,” she says. are spread over three cities. South Pacific atolls of Tokelau, Dr Coates has previously been involved in similar “The reality is we all spend a lot which has a population of less than work in other Pacific countries, including Papua New of time over the phone with each 1,500, to help set up a regulatory Guinea, before Claro was established. other every day. We operate as an regime for health professionals “It’s about providing a basic regulatory framework integrated firm. We are not three based there. such as determining who can safely provide health separate islands doing different The work is ongoing and Claro is services there such as doctors and nurses,” he says. things.” he says. assisting Tokelau with drafting leg- “The partners (Jonathan and islation. The project is not without Turned upside dow’ Anita) trust us to meet the needs of its challenges. Aisling Weir and Peter Le Cren are both based in Claro’s our clients while practising in a way “It’s a one-day boat trip to Auckland office. that works for us as individuals,” get there from Samoa. It’s a big Ms Weir is a mother of two young children, and a Ms Weir says.

63 PATHWAYS IN THE LAW September 2017 · LAWTALK 910

Getting out of the office to visit clients is something Claro prioritises, so staff will often hit the road to the provinces. Mr Le Cren says that face-to-face approach comes down to a deep consideration for the health sector. “I worked as an in-house lawyer for many years and closely with clinicians and managers running health- care services. It matters to us. It’s not just about an income stream, it’s about a passion for what people are doing in the sector and if we can play a small part in helping health care providers and regulators do a better job – great.” Health cases are often sensitive cases ▴ Belinda Johns, Consultant Mr Le Cren says as lawyers they tend to engage with their health sector clients during points of significant stress. “We do quite a lot of coroner’s inquests. They may And the health sector stretches from Bluff to Kaitaia, be mental health cases where a patient has taken their so the firm’s clients are not found in just Christchurch, own life, requiring particular sensitivity and support for Wellington and Auckland. those involved,” he says. In such situations there’ll be questions relating to Working during maternity leave whether a health care provider did enough to avert the Ms Weir says when she had her second child and was outcome that led to the inquest. halfway through maternity leave, Claro called to gauge “We get involved in situations where patients lack whether she might be able to get involved in a project. the mental capacity to make their own decisions and “Jono rang me and asked if I was prepared to come court orders are required to provide for their treatment, back for a while to help with a big job the firm had on. residential and property needs. Sometimes there may be My answer was “yes, absolutely” – the project sounded contention within the family as to whether the person interesting and as employers, Claro had shown me should be in care or going home.” flexibility and trust so I was happy to reciprocate. My Other sensitive cases he has been involved with daughter played on the floor of our board room when include seeking treatment orders for children. we had internal project meetings,” she says. “While it’s a last resort, DHBs periodically have to Peter Le Cren does a mix of litigation and medico-legal apply to the High Court for guardianship orders to allow work, along with some governance treatment to proceed because the parents of the child and employment law work. During have not consented to treatment. In some cases, these his 20-year career, he spent 11 years situations arise suddenly and require urgent attention as the medico-legal counsel for and consideration by the Court within a couple of hours,” Auckland District Health Board. Mr Le Cren says. “I’m a huge supporter of our Claro is also There’s also sensitive work including applying for work structure. Everyone has dif- actively treatment orders for the children of parents who are ferent overlapping expertise so, for involved in Jehovah’s Witnesses and refuse blood products. There example, Anita Miller, has been in a providing was also a case where a patient in a hospital refused food two-week disciplinary hearing for a education and drink and debate over whether the District Health health practitioner. The hearing is in for a range Board had the legal right to forcibly feed the patient. Auckland and Belinda Johns, who of businesses Claro is also actively involved in providing educa- works part-time, has been support- in relation to tion for a range of businesses in relation to their health ing her,” he says. their health policies. They offer training in a wide range of areas Ms Johns, a mother of three policies. They including governance and regulation. school age children, has a strong offer training in Their lawyers present frequently on issues relating to background in health law. She a wide range of mental health, aged care, treatment and consent along worked on a successful appeal to areas including with other relevant health sector issues. the Privy Council on the issue of governance and Claro employs a team of 13 across its Auckland, medical negligence. regulation. Wellington and Christchurch offices.▪

64 We are thrilled to announce the following appointments to support our growth and the demands of our clients.

Robert Huse Alan Paterson Anton Trixl Rachel Brown Partner, Queenstown Partner, Auckland Partner, Auckland Senior Associate, Auckland

Sarah Eveleigh Dan Williams Lily Cunliffe Katrina Pfeifer Senior Associate, Christchurch Senior Associate, Auckland Associate, Christchurch Associate, Christchurch

Jenna Riddle Mike Seymour Eva Roe Jess Barnard Associate, Queenstown Associate, Dunedin Senior Solicitor, Queenstown Senior Solicitor, Auckland

Anna Davidson Kathryn Guise Fiona Henderson Rosie Hill Senior Solicitor, Christchurch Senior Solicitor, Queenstown Senior Solicitor, Christchurch Senior Solicitor, Queenstown

65 TECHNOLOGY

TECHNOLOGY Marking up and Signing Documents Without Printing Them

BY DAMIAN FUNNELL

Portable Document Format (PDF) files have been around since the early 1990’s, when Adobe had the fantastic idea of creating a standard document format that would allow people Marking-up PDF Files to share documents in an ‘as printed’ format that would look the Access the markup tools in Acrobat via same on every device. the ‘Fill & Sign’ or ‘Comment’ menus on The PDF file format was an elegant solution to a widespread the top right of the Acrobat window. Both problem. Prior to PDF files, sharing documents was a nightmare. menus give you options to insert text Even users of different versions of Microsoft Word for Windows into your document, but the ‘Comment’ would find that formatting would go out of whack when they menu gives you a much richer range of opened a document saved by the other. options, including the ability to insert PDF files support inline images as well as text formatting, which attachments, video, stamps and rich text also made it the perfect format for scanned images. Most scanners into the document. will now scan to PDF format by default. We don’t have space to look at each tool This has made PDF files the defacto standard for sharing doc- individually, but I’d definitely recommend uments, particularly documents that one party needs to other creating a dummy PDF file and having a to sign. bit of a play – you’d be surprised at how The problem is that most people don’t realise that PDF files are powerful these tools are. editable, so often we print PDF files out simply so we can sign them, scan them back in again and throw away the hard copy. In this article I’ll present some handy tips for allowing you to mark-up and sign PDF files electronically without printing them. Editing PDF Files In this article we look at the features of the free Adobe Acrobat Reader that allow you to annotate and sign PDF files. There are plenty of other free PDF ‘readers’ that let you mark-up PDF files – just google ‘Edit PDF files’ if you want an alternative to Acrobat. These free products don’t allow you to change the contents of the PDF file itself – mark-ups are typicallyadded to the file as text boxes, etc. Paid products such as Adobe Acrobat Pro (which is not free), allow you to edit and change the contents of the PDF file itself. For example, they allow you to delete and replace text within the file, etc. It is a common misconception that all PDF files are read-only, but they’re not. This is worth bearing in mind if you don’t fully trust the other party not to try and modify a PDF file surreptitiously.

66 Here’s a snippet of my example PDF file Inserting Signatures Have a play with these features and prior to mark-up: Into PDF Files find out which option works best for you. The ‘Fill & Sign’ tools in Acrobat allow you The ‘webcam’ option is pretty cool – you to add text annotations, checkboxes, ini- sign a piece of paper, hold it up to your tials and signatures to your PDF document. computer’s webcam and Acrobat digitises it for you. The ‘type my signature’ option also gives you several cursive fonts to choose from. Once you’ve created a digital signature Acrobat will store it for you and allow you to simply place it into the document with the click of a mouse in future.

Here’s the same file with markups added (all using Acrobat):

When you choose ‘Place Signature’ for Just don’t forget to save your annotated the first time Acrobat will provide options PDF file before sending it to the other party. for creating/inserting old-fashioned squig- Bear in mind that they can modify or delete gles or for inserting a digital certificate. The your annotations. To prevent them from latter (which can be used in combination doing so, try printing the file to PDF – this with a squiggle) is useful for avoiding will create a new PDF file that has your forgery or repudiation. changes integrated into the file itself.▪

Damian Funnell  damian.funnell@ The mark-ups have not changed the choicetechnology.co.nz is a technologist underlying file itself. They are all saved and founder of Choice Technology, an IT with the PDF file and remain dynamic, so services company, and  PanaceaHQ . they can be modified or removed com- com, a cloud software company. His pletely the next time the file is opened. clients include a number of law firms.

67 SPOTLIGHT ON September 2017 · LAWTALK 910

SPOTLIGHT ON

Information collected by the Law Society shows that half of all New Zealand-based Areas of lawyers do some company and commercial work. While not mandatory, lawyers are invited to give details of the areas in which they practise by estimating the proportion of time spent in each of 23 fields of law. At 3 July, 78% of lawyers provided practice information on areas of practice. New lawyers are far less likely to comply, with 50% giving details. A high 90% of lawyers in practice for 10 years or more were BY GEOFF happy to share information. Reflecting this, a higher proportion of men provided ADLAM details than women. The analysis below covers the lawyers who gave information. ▪

60% 59% 58% 58% 55%

50% 49% 49% 47% 43% 43% 40% 42% 38% 37% 37% 36% 36% 35% 35% 31% 30%

30% 30% 29% 29% 27% 25% 22% 20%

20% 20% 18% 16% 15% 15% 15% 15% 14% 14% 14% 14% 12% 11% 11%

10% 9% 9% 9% 6% 6% 5% 5% 5% 5% 4% 2% 0% 1% 1 1 1 5 1 2 2 2 9 2 3 5 3 8 3 4 4 4 1 4 5 3 6 3 5 6 # # # # # # # # # # # # # # # # # # # # # # # # # #

F F F F F M M M M M ALL ALL ALL ALL ALL ALL ALL B&S B&S B&S B&S B&S B&S BAR BAR BAR BAR BAR CIVIL CIVIL FAMILY ESTATES TRUSTS & & TRUSTS PROPERTY LITIGATION COMPANY & & COMPANY COMMERCIAL 68 LAWTALK 910 · September 2017 SPOTLIGHT ON

MOST-PRACTISED AREAS OF LAW: ETHNICITY Ethnicity Chinese Indian Māori NZ European All lawyers are now required to pro- Area of law Some > 50% Some > 50% Some > 50% Some > 50% vide information on ethnicity (with Company & Commercial 62% 23% 50% 13% 34% 8% 50% 14% the option of refusing to state). At 3 Property 56% 32% 46% 23% 33% 10% 43% 14% July, information on the ethnicity of Trusts/Estates 47% 7% 40% 9% – – 37% 4% 90% of lawyers was available. This Family 34% 5% 42% 8% 31% 14% 29% 9% has enabled an indicative analysis Immigration 32% 9% – – – – – – of the areas of practice by the four Civil litigation – – 40% 10% 32% 8% 36% 11% most common lawyer ethnicities. ▪ Criminal – – – – 33% 15% – –

49% Practices some time in area Practices over 50% of time in area ALL All lawyers F Female lawyers M Male lawyers BAR Barristers sole B&S Barrister & Solicitors 31% 31% 27% 27% 26% 25% 25% 25% 23% 22% 19% 19% 18% 18% 18% 18% 17% 15% 15% 15% 15% 15% 14% 11% 10% 9% 9% 9% 6% 5% 5% 5% 4% 4% 4% 4% 4% 3% 3% 3% 3% 3% 3% 3% 3% 3% 3% 2% 2% 6 6 5 4 6 7 7 7 2 8 8 8 8 6 7 9 9 9 9 7 10 10 10 10 10 # # # # # # # # # # # # # # # # # # # #

# # # # # F F F F

M M M M F M ALL ALL ALL ALL ALL B&S B&S B&S B&S B&S BAR BAR BAR BAR ALL ALL B&S B&S BAR BANKING BANKING CRIMINAL PROPERTY & FINANCE & RESOURCE RESOURCE MEDIATION EMPLOYMENT MANAGEMENT INTELLECTUAL 69 ADMINISTRATIVE LEGAL INFORMATION September 2017 · LAWTALK 910

LEGAL INFORMATION helpers. It has also drawn on the co-operation of a number of justice sector organisations. How it is put together The miracle of NZLII The actual website is kept going by NZLII’s parent, AustLII. Established BY GEOFF in 1995 to improve access to justice ADLAM through access to legal informa- tion, AustLII is funded by over the Otago University Law Faculty, 170 law schools, courts and State Every minute 49 successful online requests are the Canterbury University Law and Commonwealth justice sector made for information from a New Zealand website which Library and the Australian-based agencies, law firms and individuals, provides free access to a wide range of information on Australasian Legal information with over A$1 million pledged in our law. Institute (AustLII). The driving 2017. NZLII would not exist without The New Zealand Legal Information Institute – or force, and the other NZLII hero, AustLII. NZLII – is a significant contributor of primary and was Otago legal academic and “I like to say we are like the secondary resources comprising cases, legislation, now Law Commissioner Donna millennial living in their parents’ university law journals and materials on law reform. At Buckingham. A $50,000 grant from basement. We reside in AustLII’s 30 June 2017, NZLII had 152 databases containing 324,252 the Law Foundation in 2007 gave basement – they provide the tech- documents going back to 1840 – and there had been impetus to the fledgling site. The nical support and infrastructure. All nearly 13 million successful requests for information Law Foundation has since provided data is over in Sydney,” says Judi since 1 January 2017. a further $116,771 in funding for five Eathorne-Gould. The NZLII website (atwww.nzlii.org ) is not the gloss- separate projects. “It does lead to bottlenecks as iest on the internet. A mix of black and blue text, the anything we want done has to wait formatting of the information – particularly the case Free Access to Law until AustLII has the time to do it. law – leaves a lot to be desired (although the cases can be NZLII is part of an inter-connected The benefit they get is that they can converted into a facsimile PDF). Searching the databases network of over 50 organisations include our growth as outcomes for can be difficult and there is no commentary or analysis. which make up the Free Access to grants they apply for.” NZLII is raw law – but there is a lot of it, it is up-to-date Law Movement (FALM). The FALM The actual information which and it is free. The historical scope is also unique. You’re Declaration on Free Access to Law appears on NZLII is garnered from probably only going to find that 1996 Liquor Licensing states that public legal information many places, often with number Authority decision on NZLII. is part of the common heritage of 8 wire initiative. Cases from the humanity and maximising access to District Court and High Court are Widely used this information promotes justice identified with scripts written by It’s clear that the resource is widely used. Information and the rule of law. It also holds that Joe Ury of the British and Irish LII, from NZLII shows that law firms, tertiary and other public legal information is digital BAILII. The Court of Appeal sends its educational institutions, media, government agencies common property and should be decisions to NZLII and the Supreme and a wide range of individuals and businesses are accessible to all on a non-profit basis Court loads its own decisions. regular visitors. During 2016 the addresses of visitors and free of charge. “Loading is done via email – one to NZLII included 188 country suffixes – about 95% of The FALM principle of free law has emails the decision to the server at the countries in the world. been a driving force for NZLII and AustLII in plain text, with the meta- the other LIIs around the world. The data inside the body of the email and Behind the scenes sale of legal information earns over the AustLII process loads them from The usage information hides an astonishing fact – what $50 million annually in New Zealand the emails twice a day for most of is certainly New Zealand’s largest free resource of legal with much of it going to the multi- the databases. For databases we have information is managed by just one person: law library nationals LexisNexis and Thomson identified as high priority or critical assistant Judi Eathorne-Gould. Apart from one-off grants Reuters. You need to pay for added – due to suppression issues – that for specific projects NZLII has subsisted for the last three value such as granular searchability, loading takes place every 3-4 hours,” years on $15,000 a year from Otago University where it commentary and analysis, but NZLII Mrs Eathorne-Gould says. is based. That is about to run out. offers free access to primary sources Much of the legislation – cur- Mrs Eathorne-Gould is passionate about NZLII and from 1840 until today. rent Acts, regulations, SOPs and volunteers some of her own time, in evenings and on In the 13 years it has existed and bills – is received from a feed from weekends, to help keep it updated. kept its code of free access, NZLII the Parliamentary Counsel Office After completing an LLB she decided that legal practice has lived from day to day with website. Again, the processing is was not the way she wanted to go: “My normal response short bursts of prosperity. It has done by AustLII, but it’s automated. to the question why I am not a lawyer is that I believe in been kept going and developed There is, of course, a lot more. Name justice and that is not necessarily the same as the law.” largely by the voluntary inputs of suppression possibilities mean con- NZLII was established in 2004 as a joint project of Mrs Eathorne-Gould and a team of stant human scrutiny is needed and

70 LAWTALK 910 · September 2017 LEGAL INFORMATION

there are reams of paper decisions University, invaluable assistance “If NZLII were to fold or to cease to provide as wide from a multitude of courts and tri- from Canterbury University’s School a variety of information as it currently does, then this bunals which need to be organised, of Law, the processing and hosting would be quite devastating for legal researchers,” says scanned, checked and loaded. A lot by AustLII, and the information pro- New Zealand Law Librarians’ Association President of work has gone into creating the vided by the courts, PCO and some Stephanie Carr. databases and hundreds of thousands other organisations, plus input from Ms Carr says NZLII is one of the key legal information of documents available to anyone law librarians, NZLII is on its own. sources that law librarians can choose to utilise. She who visits NZLII. “We have only received a dona- says it offers a public service in providing access to free tion from two New Zealand solici- legal information. Keeping things going tors in our entire existence,” says “Members of the public and overseas users might “At the moment there’s just me. Mrs Eathorne-Gould. She says she find that this is the only open access source that can I usually have at least one law is envious of the funding model for provide quality and authoritative legal information to student doing around 8-10 hours the Canadian LII – CanLII – in which assist them. As the website continues to grow and add a week straight-forward loading every lawyer pays a contribution decisions from specialist bodies its value increases. This plus any project work in univer- of around $40 each year as part of value is also recognised by the Parliamentary Counsel sity break periods, but funds have their registration or licensing fees to Office, which redirects users of the official legislation not permitted that this year,” Mrs fund CanLII: “You just have to look website to NZLII for historic Acts and bills.” Eathorne-Gould says. at how great CanLII is, how many A move to online access for legal information and The Law Foundation has made a innovations they have done such as removal of print sources means many libraries are valuable contribution to NZLII, but is CanLII Conects, to see the benefit of downsizing and relying on websites like NZLII to be only able to fund on a project basis. such stable funding.” the source of this information, Stephanie Carr says. The New Zealand Law Librarians’ “If NZLII ceased to exist, key historic documents Association also provided funding User contributions that had limited print access could be lost, including to support digitisation of the New NZLII encourages user contribu- for example Fenton’s Important Judgments, which Zealand Gazette Law Reports on tions. “You can access a donation provided decisions of the Native Land Court from 1866.” NZLII. Apart from the now-ex- form from the home page or contact The Law Librarians’ Association says it would endorse pired contribution from Otago us via the Feedback email,” she says. a push for the central Government to take a more active and concerted effort to fund and support NZLII. Justice Minister Amy Adams says she has been advised that the Ministry of Justice does not provide funding for NZLII, and has not been approached by the admin- NZLII’S biggest case law databases istrators seeking funding. (documents at 30 June 2017) She notes that information on judicial decisions is also distributed on the ministry’s Judicial Decisions Online Forum Documents website and websites for the District Court, the Supreme High Court 31,049 Court, and a number of specialist courts and tribunals. Liquor Licensing Authority 23,515 “I am aware of NZLII and its usefulness in bringing together both past and present judicial and tribunal Auckland District Licensing Commission 16,154 decisions, and wider legal information, in one place,” Employment Relations Authority 12,254 Ms Adams says. Gazette Law Reports 10,898 What would keep NZLII going? Advertising Standards Authority 10,617 Judi Eathorne-Gould estimates that to achieve “basic Court of Appeal 10,235 continuance” (loading current decisions in all the tri- Environment Court 8,117 bunals and courts) would cost around $30,000 a year Accident Compensation (District Court) 7,232 (“less than a cup of coffee per lawyer in New Zealand”). Refugee Status Appeal Authority 6,754 Taking a more ambitious approach, she has a long “hit list” of projects that would keep NZLII growing into an even larger and more accessible resource. As well NZLII’S biggest non-case law databases as loading older District Court, High Court and Court (documents at 30 June 2017) of Appeal decisions, a New Zealand Gazettes database would be a welcome addition, along with updating the Subject Documents database of international Treaties between New Zealand Historical bills 31,449 and other countries. Regulations as made 21,393 “I would love to do something like AustLII has with its Indigenous Law Resources. For that we would need Acts as enacted 15,972 partners – probably from the other universities and Consolidated (current) regulations 5,173 significant funding. But how cool would that be to have Consolidated (current) Acts 3,824 the equivalent for Māori.” ▪

71 PRACTISING WELL September 2017 · LAWTALK 910

PRACTISING WELL Emotional eating vs mindful eating

BY RAEWYN NG

not a stomach thing – instead of a growling stomach Food and eating can occupy a complicated place signalling hunger, it’s more of a craving you can’t stop in our lives. We know we need food to provide us with thinking about. nourishment and energy and to satisfy hunger but • Emotional hunger is often connected to mindless oftentimes we also use food as a way to deal with stress eating – what you’re eating will be gone before you and difficult emotions like sadness or boredom and to realise it, you won’t have paid much attention to it reward or treat ourselves. Eating for these other reasons or really enjoyed it. doesn’t really solve these problems either – usually the • Emotional hunger usually results in regret, guilt and stress or emotional issue is still there after eating as well shame – if you feel like ‘I shouldn’t have eaten that’ as feelings of guilt for overeating. it’s often a sign you’ve eaten for reasons other than Emotional eating is about using food to feel better to satisfy a physical hunger. – eating to fulfil an emotional need, or to change an As a response to emotional eating, mindful eating tech- emotional state, as opposed to satisfying a physical niques can help you to focus on positively changing your hunger. relationship with food. Instead of focusing on what you Emotional eaters know that food changes how they can and can’t eat like a traditional ‘diet’ does, mindful feel. Eating changes your biochemistry (blood sugar eating shifts the focus to the way you eat. levels, hormones and neurotransmitters) so that at the Being fully present when you eat, tuning into your most basic biological level you know you’re helping appetite and how you feel as you’re eating, you learn to to ensure survival. It can also be a way to ‘numb out’ control portion sizes, choose better options and avoid or ‘zone out’, to escape, distract or avoid something emotional triggers without the pressures of restrictive or it’s associated with promoting positive feelings of diet plans or relying on willpower to resist certain foods. comfort and calm. Mindful eating can help you to differentiate between Using food to make yourself feel emotional and physical hunger, increase your awareness better, as a reward or to celebrate to the triggers that prompt you to reach for food when isn’t necessarily a bad thing – it’s you’re not physically hungry and give you freedom to something we all do at some time choose how you respond. and it’s a part of being human – but Using food to Lynn Rossy, health psychologist and author of The when it becomes the main way you make yourself Mindfulness-Based Eating Solution (New Harbinger cope with life then it’s time to shine feel better, as Publications, 2016) has helpfully simplified mindful a spotlight on it and investigate a reward or to eating into the BASICS: further. celebrate isn’t So how do you know the differ- necessarily a Breathe and check for hunger ence between an emotional hunger bad thing – it’s and satiety before you eat and a physical hunger? There’s a few something we all Taking a few deep breaths relaxes the body and moves things to consider: do at some time the nervous system away from the ‘fight and flight’ that • Emotional hunger is usually for and it’s a part we spend so much of our days in and towards the ‘rest specific foods – when you’re phys- of being human and digest’ or parasympathetic response. In this state, ically hungry any food will do but – but when it we can better digest and assimilate our food. As you’re emotional hunger is usually about becomes the taking these deep breaths, it’s a good time to check in junk food, sugar and getting an main way you with how you’re feeling on the hunger/fullness scale – instant energy hit. cope with life have you experienced physical signs of hunger? What • Emotional hunger doesn’t stop – it then it’s time are you hungry for? Is it food/water/something else? will lead to overeating to the point to shine a of feeling uncomfortably full and spotlight on it Assess your food you’ll still want more. and investigate Look at your food and notice the colours, smells and • Emotional hunger is a head thing further. textures. Consider where it came from and how it got

72 to be on your plate. When you con- often eat while distracted – by work, television, phones how and why you eat or want to sider the elements that created this etc. Take away the distractions and give yourself time to eat. As we build this awareness, we meal, from the soil, water and sun focus on your meal. Pay attention to the taste, smell and can then choose how to respond to through to the people that helped textures of your food and keep assessing your level of our feelings rather than being con- to bring it together, it’s hard not to hunger and fullness as you go. Do you still like the food trolled by them or simply reacting feel gratitude for it. Ask also if this on your plate? Do you feel like you need to keep eating? to them. is the food you really want to eat. Remember it’s OK to stop or keep eating depending on While weight loss can be a result As you eat, continue to reassess the your level of hunger and fullness. of this approach, it is not the goal. food to see if your first impressions When you eat what you need in the were accurate and ask if you want Chew your food thoroughly amount that its needed, your body to continue eating. Chewing starts off the digestive process and signals to weight will stabilise in a healthy your brain that we’ve started to eat. As you chew your range for you. Slow down food thoroughly you’ll eat more slowly, taste and feel Although diet plans may help in These days, we often eat quickly, the food you’re eating and enjoy it more. the short term and get fast results, paying little or no attention to our as much as 85% of obese individuals food. This can be a problem as it Savour your food who lose weight on weight loss pro- can take up to 20 minutes for the Savouring your food is about taking the time to choose grammes return to or exceed their brain to register signals of fullness. If the food you want to eat and being fully present to starting weight in a few years. If this we’ve eating too quickly we’ve often enjoy the moment. Paying attention to your food without sounds familiar to you, maybe what overeaten before we realise it. Ways distraction will help you to tune into how your body you’re eating is not as important as to slow down while you eat include reacts to the food, your hunger and fullness levels, and how you eat and a mindful approach putting down your fork or pausing whether you feel satisfied with what you’ve eaten. is what you’ve been missing. ▪ and taking a breath between bites or Mindful eating is about shifting away from a ‘diet’ or chewing your food more thoroughly. weight loss focus and more towards listening to your Raewyn Ng  [email protected] body and feeding it what it needs to be healthy in a is a movement coach with an Investigate your hunger sustainable and long-term way. Rather than placing interest in wellbeing and holistic through the meal limits on the kinds of foods or amount of foods you health, managing stress and living As well as eating too quickly we also eat, the emphasis is on figuring out and honing into a balanced lifestyle.

73 FOCUS ON WHANGAREI Whangarei

BY KATE GEENTY

with Webb Ross in 1990, then later on Building those relationships can lead to Thirty-six years ago Steve Wong got we merged with Thorne Dallas, and then following a family through some of the off a bus in Whangarei carrying just a the latest merger was with Urlich McNab biggest moments of their lives, then poten- suitcase. He came to town to take up a Kilpatrick. I’m the last surviving partner tially doing the same for their children and job at the law firm Johnson Hooper. Mr from the original firm of Johnson Hooper.” grandchildren. Wong hadn’t planned on staying long, but Mr Wong, who is now a director at “I’m now into my third generation cli- two years down the track he was offered WRMK, says building strong networks ents. Some of my children’s friends come a partnership at the firm and he’s been a and relationships is key to a successful to me, and children of other clients. The local ever since. legal career. “I always say I’m here for a good thing about Whangarei is you get to In the ensuing decades a succession of relationship, not a one night stand, and act for whole families sometimes. mergers has seen the original firm morph that’s the guts of it. I don’t want a one-off. “Whangarei has been kind to me, my into what eventually became Webb Ross I like to know the client, that way you can four children are all doing well, with McNab Kilpatrick (WRMK). “I started advise the client properly instead of going one daughter now working for a leading out at Johnson Hooper, then we merged in cold.” London law firm.”

74 In terms of building his business, Mr ▴ Marsden Point Wong believes it’s important to work Whangarei is home to New Zealand’s on a point of difference. “Because at the only oil refinery, Marsden Point Oil end of the day we’re all selling the same Refinery, which is operated by Refining product, so you’ve got to find something NZ. to set yourself apart from everyone else.” In his case, that difference is his Chinese heritage, and he says he’s attracted most decided to open her own firm in 2002. At of the Asian clientele in Northland. “I’m the time she had two-year-old twins, a the Chinese lawyer in the district. I was five-year-old and a seven-year-old. “The the northern-most Chinese lawyer in New idea was to be able to work more realistic Zealand, but we’ve just hired some young hours, but of course that worked in reverse Chinese guy, so I’m now the oldest, northern-most Chinese lawyer really. Luckily, my partner was home with in New Zealand,” he laughs. the kids and we had the grandparents next door.” Balancing the modern with traditional Despite the long hours, the ability to ways of doing business forge her own path was appealing. “You Regional practice can still be cutting edge. Mr Wong describes If you can make your own culture in your own WRMK as a digital office; there are no paper folders and work is don’t sit office.” carried out electronically. A self-admitted technophobe, Mr Wong down In 2008, she went into partnership with was initially against the idea, but has since come around and says face- Christina Cook, who is now a judge. In 2014 he’d never go back. One of the biggest advantages is the ability to to-face Megan Wills became a director in the firm, work remotely. “Gone are the days where I would come back to with your which is now known as Wills Westenra. the office after dinner and work. I can work in the comfort of my clients own home and remotely get on with my work and it’s seamless.” sometimes, Where everybody Face-to-face contact is still important though, and Mr Wong you won’t knows your name believes people rely on email too much. “If you don’t sit down always Ms Westenra deals mainly with family law, face-to-face with your clients sometimes, you won’t always know know and says the Family Bar is very strong in what they’re thinking.” what Whangarei. “We are all very close and work He goes up to the company’s satellite office in Kerikeri once they’re together very well. We have fairly regular a week, and uses the drive as a chance to connect with clients, thinking lunchtime get-togethers and seminars often just socially for a cup of tea and a catch-up. “It’s about an where we share ideas. We’ve got to try hour’s drive, but it takes me much longer because I tend to stop and get on with each other because we and visit clients on the way up.” deal with each other all the time.” Knowing your colleagues and clients Building a business and a family well is an advantage of working in a Bridget Westenra moved to town with her young family from smaller centre, says Mr Wong. “You can Auckland 20 years ago, to be closer to her partner’s family. She get things done quicker because you know

75 Population LAWYERS PRACTISING IN WHANGAREI BY GENDER AND Whangarei is the northernmost city in YEAR OF ADMISSION New Zealand and the regional capital of Northland. It’s around a two hour drive Women 23 from Auckland and has a population of 20 roughly 56,400. Men 10 people, there’s an element of trust. You can 3 actually go and see somebody and resolve 0 56 things, rather than go the tortuous way 1972– 1983– 1994– 2005– 2005– Total of litigation.” 1982 2003 2004 2017 2017 56 New lawyers 6 When it comes to hiring young lawyers, Mr 10 Wong says he prefers to lure locals back to 12 12 town, rather than outsiders. “That’s simply 16 because they’re more settled, they know the town, their parents are here and they’re here to stay, rather than just coming for a joined the litigation team at Henderson Reeves two years ago, after holiday on the firm and then leaving,” he working for the firm during her university holidays. “In my second says, before laughingly admitting, “which to last year at uni I summer clerked at the firm here and absolutely is what I was going to do when I first came loved it. I was very keen to come back when I graduated.” – but 36 years later, I’m still here.” She says the move home has been easy. “I have a lot of family up Gemma Coutts is the kind of young here and have always been reasonably involved in the community, lawyer Mr Wong is talking about. A former so it was quite nice to come back.” head girl of Whangarei Girls’ High School, As well as local ties, the lifestyle was another drawcard. “At the she moved back to her home town after moment, my partner and I are living on the Tutukaka Coast, which graduating from Victoria University. She is fantastic, and I’m doing a lot of paddle boarding.” ▪

76 LAWTALK 910 · September 2017 PRO BONO

PRO BONO Equal Justice Project helps practical skills development BY CRAIG STEPHEN

The Equal Justice Project’s pro bono initiative gives law students invaluable opportunities to gain experience while working on human rights projects in New Zealand. The team offers support to practitioners, academics, interest organisations and community groups who share the charity’s goals of promoting equality, inclusivity, and human dignity. “It’s a great way for students to foster their legal research skills for the future,” says Holly Edmonds, a co-manager of the Pro Bono team. Senior students gain practical legal experience in researching for cases, conducting independent case studies, and compiling submissions to domestic and international committees. The team is comprised entirely of law students from the University of Auckland Law new subdivision is adjacent to ▴ Equal Justice project volunteers School who the co-managers say have demonstrated a the Ihumātao Papakainga and at the organisation’s opening capacity for high quality legal research and a dedication the Otuataua Stonefields Historic event earlier this year. to protecting human rights. Reserve and is “unacceptably close “It’s also a good way to offer a practical component to an urupa (Māori burial site), and to the law degree which can otherwise be absent,” says it will destroy other significant with Action for Children and Youth Christina Laing, the team’s other co-manager. archaeological sites and waahi Aotearoa, submitted to the Human “In the United States they mandate a clinical compo- tapu”. Rights Commission on behalf of nent to a law degree whereas in New Zealand we don’t “We have been providing legal the National Foundation for the have that. So, the Equal Justice Project allows students research and analytical assistance Deaf, conducted an independent to put one foot in, obviously in a closely-monitored on SOUL’s attempt to protect the case study on the New Zealand fashion, to the professional context and apply their rights of mana whenua,” says Immigration Profiling Branch, academic work into a practical setting, which I think Christina Laing. and completed individual case is very beneficial for them. And it also helps people build “One of the most important recent research for numerous barristers a good sense of community and develop friendships,” successes was when the Pro Bono and academics. she says. team contributed to the Wakatu Last year, volunteers worked on There are about 20 volunteers working in the Pro Bono Supreme Court case (Proprietors of a project grounded in the issues team, as well as Ms Laing and Ms Edmonds. Wakatu v Attorney-General [2017] surrounding refugees, their chil- The student volunteers apply for a one-year position NZSC 17) where the court found that dren, and their access to social and can return to the group to provide their assistance. the Crown owed fiduciary duties to services. The team also provided “You can be a part of the Project from the minute indigenous people. The Equal Justice legal research in relation to the you start Part II law until you graduate,” adds Ms Laing. Project contributed legal research to potential discrimination grounds The group is currently working with the mana when- that case with Associate Professor and illegality of the Department of ua-led community group Save Our Unique Landscapes Claire Charters at the Law School. Corrections’ policies on transgender campaign (SOUL) which is working to protect land in That was quite an accomplishment prisoners. Ihumātao, near Mangere in south Auckland. for us because it was such a public Another major project it has Fletcher Residential Ltd has submitted a plan to and important decision.” worked on was assisting former build a low-density, high-cost housing development The Project has also submitted to Judge David Harvey in his mission with about 500 homes on 32 hectares of confiscated the United Nations Committee on to provide improved access for Maori land. SOUL says the area earmarked for the the Rights of Children in conjunction self-represented litigants. ▪

77 WILL NOTICES · CLASSIFIEDS September 2017 · LAWTALK 910

Will notices

Bajaj, Arvind Singh Stevens, Marie Margaret May Bennett, Daniel Cavanagh Oldham Stewart, Elena Evanovna Cameron, Kenneth Warren John Teriaki, Douglas Tahatika Frew, Yvonne Marie Margaret Teriaki, Gladys Waipaia (nee Maaka) Grenville, John Robert Woodard Tui, Pepe Naumalila - aka Gurran, Denise (nee Peterson) Leota, Naumalila - aka Hiakita, Uma Waatu Leota, Naumalila Tui Honeybone, Kevin Richard Tuiri, Rihi Gena Hune, Alan Whiu, Charlie (Haare) Joyce, Ivo Roderick Kranich-Calitz, Kenneth Grenville, John Robert Woodard Joyce, Ivo Roderick McGregor, Stuart James Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- McKenzie, Janet Lois named, late of 9B Peet Avenue, Royal Oak, named, born in Auckland on 6 November Nghe, Hong Chuong Auckland, Electrical Mechanic, born on 5 June 1927, who died on 11 June 2017, please contact 1937, who died on 27 February 2017, please Catherine Atchison or Timothy Orr, Martelli O’Grady, Frederick Charles contact Blair Franklin, Holmden Horrocks: McKegg: Porenta, Roman  [email protected]  [email protected]  09 303 3989  09 300 7618  PO Box 1108, Auckland 1140  PO Box 5745, Auckland 1141 Bajaj, Arvind Singh Would any lawyer holding a will for the above- Gurran, Denise (Nee Petersen) Kranich-Calitz, Kenneth named, late of 2/31 Alford Avenue, Waterview, Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- Auckland, Business Consultant, born on 12 named, late of 109 Norton Road, Akina, Hastings, named, late of 90 A6 Onewa Road, Northcote, September 1976, who died sometime between who lived in Hawke’s Bay area since approx Auckland, Credit Manager, born on 9 December 22 July 2017 and 1 August 2017, please contact 1990’s and prior lived in Waikato - Matamata 1960, who died on 16 November 2016, please Dr Maria A Pozza, Lane Neave: areas, born on 10 February 1957, who died on 1 contact Paul Connolly, Stace Hammond  [email protected] May 2017, please contact Glenda Yeatts, Gresson Lawyers:  03 372 6376 Grayson Limited:  [email protected]  09 307 7909  PO Box 2331, Christchurch 8140  [email protected]  PO Box 106-376, Auckland 1143  06 873 2710 Bennett, Daniel Cavanagh Oldham  PO Box 1045, Hastings 4156 McGregor, Stuart James Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- named, late of 342 Point View Drive, Howick, Hiakita, Uma Waatu named, late of Te Aroha, Waihou, Tokoroa Auckland, (but sometimes of no fixed abode), Would any lawyer holding a will for the and Levin, who died at Hamilton on 16 June who died on 8 July 2017 aged 81 years, please above-named, late of 1245 Te Pahu Road, RD5, 2017, please contact Marie Preston, Jon Webb contact Susan Tracy, Cairns Slane: Hamilton, who died on 11 July 2017, please Barrister & Solcitor:  [email protected] contact John Campion, Tanner Fitzgerald:  [email protected]  09 307 9655  [email protected]  07 839 4983  07 834 3311  PO Box 6849, Auckland 1141  PO Box 95, Hamilton 3240, DX GP20028  PO Box 132, Hamilton 3240, DX GB21539 Cameron, Kenneth Warren John McKenzie, Janet Lois Would any lawyer holding a will for the Honeybone, Kevin Richard Would any lawyer holding a will for the above- above-named, late of Elizabeth Knox Home Would any lawyer holding a will for the above- named, late of Takanini, Auckland, Beneficiary, and Hospital, Epsom, Auckland, who died on named, late of Tauranga, Chartered Accountant, who died on 12 June 2017, please contact 21 June 2017, please contact Nola McGowan, born on 14 March 1950, who died on or about Samuel Ames, Brookfields: Vlatkovich & McGowan Ltd: 14 July 2017, please contact Melissa Choppin,  [email protected]  09 979 2183  [email protected] Fenton McFadden:  PO Box 240, Shortland St, Auckland 1140  09 424 8146  [email protected] DX CP24134  PO Box 120, Whangaparaoa 0943  07 573 8681  PO Box 36, Te Puke 3153 DX BX10616 Hume, Alan Nghe, Hong Chuong Frew, Yvonne Marie Margaret Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- named, last known address 639 Glenfield Road, named, late of 40 Chateau Rise, Flat Bush, named, late of Christchurch, who died on 23 July Glenflield, North Shore, Auckland, who died on Auckland, born on 6 September 1978, who died 2017, please contact Kevin Cumming, Duncan or about 26 October 2012, please contact Joelle on 30 January 2017 aged 39 years, please contact Cotterill: Pritchard, Rice Craig Barristers & Solicitors: Jane Goulding, Daniel Overton Goulding:  [email protected]  [email protected]  [email protected]  09 622 2222  03 379 2430  09 295 1700  PO Box 13017, Onehunga, Auckland 1643  PO Box 5, Christchurch 8140  PO Box 72-440, Papakura 2244, DX EP76506 DX EP71005

78 LAWTALK 910 · September 2017 CLASSIFIEDS · WILL NOTICES

O’Grady, Frederick Charles Stewart, Elena Ivanovna Tui, Pepe Naumalila - aka Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- Leota, Naumalila - aka named, late of Heretaunga St, Whangarei, Vera named, late of Auckland, who died on 30 July Leota, Naumalila Tui Heights, Maungakaramea, Te Anau Place and 2017, please contact Pamela Wright, Stainton Would any lawyer holding a will for the above- Denby Cres, Whangarei, born on 26 August Chellew: named, late of Auckland, Retired, born on 26 1929, who died on 18 July 2017, please contact  [email protected] January 1938, who died on 7 May 2017, please Colleen O’Grady:  09 300 5854 contact Stephen Munro, Galbraiths Lawyers:   [email protected] PO Box 989, Shortland St, Auckland 1140  [email protected]  021 145 2560 Teriaki, Douglas Tahatika  09 535 2734  PO Box 38-345, Howick, Auckland 2145 Porenta, Roman Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- named, late of 169 Scotsman Valley Road, Tuiri, Rihi Gena named, who died in Wanganui on 28 July 2017, Tauwhare, born on 26 May 1935, who died on 30 Would any lawyer holding a will for the above- please contact Frances Slight, Bullock & December 2010, please contact Hayley Revell, named, late of 102 Coxhead Road, Manurewa, Associates Lawyers: McCaw Lewis: Married Woman, who died on 13 July 2017 aged  [email protected]  [email protected] 53 years, please contact Maurice J Burney,  06 345 8049  07 958 7472 Barrister and Solicitor :   PO Box 5, Whanganui 4541 PO Box 9348, Hamilton 3240, DX GP20020  [email protected]  09 527 1311 Stevens, Marie Margaret May Teriaki, Gladys Waipaia (nee  PO Box 14-663, Panmure Auckland 1741 DX EP80506 Would any lawyer holding a will for the above- Maaka) named, late of Mt Roskill, Auckland, Retired, Would any lawyer holding a will for the above- Whiu, Charlie (Haare) born on 17 May 1925, who died on 11 July 2017, named, late of 169 Scotsman Valley Road, Would any lawyer holding a will for the above- please contact Blackwood Hawkins Law: Tauwhare, born on 17 December 1933, who died named, late of Australia, School Teacher,  [email protected] on 21 July 2014, please contact Hayley Revell, property owner of Auckland, born on 31  09 238 3532 McCaw Lewis: December 1945, who died on 19 January 2017,  DX EP77017, Pukekohe  [email protected] please contact Murray Lawes, Lawes Law:  07 958 7472  [email protected]  PO Box 9348, Hamilton 3240, DX GP20020  09 427 9329  PO Box 220, Orewa, Auckland 0946

McHardy Parbery Lawyers FOR SALE Solicitor – General Practice We are highly respected and successful general practice firm Central Wellington law practice for sale. Well in Birkenhead. We are seeking a Solicitor with 5+ recent PQE. established with good client base. The new role will involve all areas of general practice work with a particular focus on estate planning and relationship property. Main areas of practice include conveyancing, Ideally, you will: wills, estates, relationship property, and some » have proven skills & track record in all aspects of relationship trust administration. property & broad legal knowledge; » have good common sense, an eye for detail, a strong work ethic Negotiable hand over period. & be able to work independently; » be computer literate, charismatic, outgoing, professional &  Confidential Advertiser No. 17-7 (c\- Christine down to earth. Wilson) email: [email protected] To apply please email your cover letter and resume in to [email protected]

79 LEGAL JOBS · CLASSIFIEDS September 2017 · LAWTALK 910

Barrister Opportunity in Harbour Chambers

Following the retirement from Chambers of Ms Susanne Ruthven to take up a new appointment, an opportunity exists for a barrister to take up a LITIGATION LAWYER place in Harbour Chambers. WHANGANUI Harbour Chambers is a long-established Wellington Chambers, currently with Armstrong Barton have a great opportunity for a twelve barristers. Details can be found at self-motivated lawyer interested in expanding an www.harbourchambers.co.nz. existing Litigation Practice including family, civil This opportunity may interest a senior barrister criminal and employment. We are happy to cater seeking a well-resourced and collegial for specific areas of interest. environment; a practitioner with their own If you want to spend time in Court, work in a practice seeking to establish as a barrister; or supported team environment and are seeking a good a more junior barrister working in the same work life balance with opportunity for advancement, area as one or more of the current members then we would like to hear from you. of Chambers. The main areas of work can be Applications should be forwarded together with a ascertained from the website. CV by Monday 25 September 2017 to: A barrister with experience in civil litigation in Armstrong Barton the High Court would be especially welcome as Katrina Davidson inquiries for this work exceed the capacity of our Practice Manager present members. PO Box 441 Whanganui 4541 A confidential inquiry, without obligation, should be directed, preferably by email in [email protected] the first instance to Ms Phernne Tancock, www.armstrongbarton.co.nz  [email protected]

REFEREES, DISPUTES TRIBUNAL

There will shortly be a process for the appointment of Referees in the Waikato Region. Members of the public are invited to submit the names of persons Real Estate Agents Disciplinary Tribunal who are considered suitable for appointment as Referee. Part-Time Deputy Chairperson (Auckland) Nominations must be sent in writing or by email. They must contain the name, address, telephone Applications are invited from persons wishing to be number and email address of both the nominator considered for appointment as the part-time (approx 25% and the person being nominated. of a full-time equivalent) Deputy Chairperson of the Real Estate Agents Disciplinary Tribunal based in Auckland. Once a nomination has been received, the person who is nominated will be sent an application pack The Real Estate Agents Disciplinary Tribunal deals with with details relating to the position and how to apply matters related to the licensing and disciplining of real for it. estate agents licensed under the Real Estate Agents Act Nominations are to be made to the Principal Disputes 2008 to carry out real estate agency work. Referee, Private Bag 32 001, Featherston Street, The Tribunal consists of: Wellington 6146, Ph: (04) 462 6695, or email: • The Chairperson [email protected] • Members, one of which can be designated as the Nominations must be received by this office no later Deputy Chairperson. than 12 noon on Wednesday 20 September 2017. The closing date for applications is 21 September 2017

Further details and an application pack are available from the Ministry of Justice website www.justice.govt.nz/statutory-vacancies

80 LAWTALK 910 · September 2017 CLASSIFIEDS · LEGAL JOBS

Solicitor – Commercial (Technology, Media, IP) GENERAL LITIGATION LAWYER 3-5 years PQE Due to our growing practice, we are looking for another team » Varied and challenging workload member with 3 to 5 years (max) PQE to join our commercial team. » Looking for a lifestyle change & career opportunities Our commercial practice includes a wide variety of interesting and » Based in Queenstown topical work, centered around tech, media, IT, IP and telecoms but it also encompasses general corporate / commercial arrangements for Do you want to live and work in one of the fastest growing regions of our tech media and IP clients. New Zealand and enjoy an enviable work/life balance? If you have passion for, and demonstrable experience in corporate / Mactodd Lawyers prides itself on being a full service law firm, commercial arrangements, and are keen to work with some of New combining local knowledge and convenience with national presence Zealand’s (and the world’s) leading organisations then we would love and experience. to hear from you. We are looking for a litigation lawyer who can slot into our existing Experience in technology, media, and IP would be useful, but it is not team and either lead or junior on matters depending on their essential provided that you have a genuine interest and enthusiasm to learn. experience in any of the following areas: criminal, family, civil, employment and immigration law. Top salary and other benefits along with fun are a given. Immediate start available. Ideally, you will: » Be an independent self-starter with at least three years general or Direct applications only and all applications treated in strict confidence. specific litigation experience. » Have the personality and communication skills to integrate into Jason Rudkin-Binks the existing litigation team. Partner » Have excellent IT skills and the ability and attitude to embrace new developments. » Be outgoing, community minded and experienced in building client relationships and developing your own client base. If you are looking for a lifestyle change and to enjoy the benefits the www.hgmlegal.com region has to offer, while still having the opportunity to grow your Technology, Media & IP Lawyers expertise and develop professionally, we would love to hear from you. TEL +64 9 308 7309 Please send your CV by Friday 22nd September 2017 [email protected] to [email protected]

AT THE HEART OF GOVERNMENT LEGAL MATTERS

Team Manager - Public Law

Due to an appointment to the judiciary and to the partnership of a security, employment, privacy, procurement, and family law. national law firm we are looking for managers for two of our Public Law We are looking for experienced lawyers with an interest in public law teams in the Crown Legal Risk Group. who are able to take a lead role in the team’s work and mentor and Crown Law takes pride in providing high quality legal advice and develop other counsel. representation to the Government in matters that affect all New We offer a collegial and flexible work environment and unique career Zealanders. We play a key leadership role within the Government Legal development opportunities. Network. We work with talented and dedicated public lawyers from different backgrounds across the Network, on cases that often involve For a copy of the position description, please go to www.crownlaw. novel and important issues. This could be your opportunity to join us in govt.nz/careers/current-opportunities/ this work. To apply, please email your covering letter, curriculum vitae and academic transcript to [email protected] citing the above The team manager role combines leadership of a team of lawyers with vacancy. responsibility for the conduct of litigation and provision of advice across a range of sectors, including immigration, health, education, social Applications close at 5pm on Monday, 11 September 2017.

Crown Law is committed to the principles of Equal Employment Opportunity

81 LEGAL JOBS · CLASSIFIEDS September 2017 · LAWTALK 910 CHANNEL ISLANDS

ONE OF THE WORLD’S MOST Working in the Channel Islands offers you the opportunity to retreat from the big city life SUCCESSFUL OFFSHORE while developing your career alongside highly regarded lawyers in top-tier FINANCIAL CENTRES. Our clients in international law firms. Jersey and Jersey Guernsey are Guernsey actively Funds Associate 2-4 NZ PQE seeking New Corporate Lawyers 2-7 NZ PQE Our client is seeking a lawyer with solid invest- Zealand qualified We are seeking multiple corporate ment funds and private equity experience. lawyers. lawyers to join a busy and dynamic team. Ideally, you will have acquired your experience You need to have trained in a top-tier law in a well-known financial centre or in a funds firm. A background of working in a major team in private practice. financial centre is also essential.

Litigation Associate 2-4 NZ PQE For senior lawyers, previous experience in offshore work or funds matters would be Litigation experience is essential for this role as you will deal with the full an advantage. spectrum of contentious and semi-contentious work. In this role, you will also have the opportunity to qualify locally and exercise rights of audience. www.claritynz.com

DUBAI

MULTINATIONAL GLOBAL FIRM Banking and Finance Lawyer Develop your specialist banking and finance expertise alongside recognised industry experts. The focus of this role is supporting the debt capital markets team and providing advice on a range of banking and finance matters. The successful candidate's core function will be in the Islamic finance team although Islamic finance experience is not essential. Essential requirements: 5-6 years of New Zealand PQE; Solid banking and finance experience in a top-tier firm, particularly in debt capital markets; Commonwealth qualifications; and Excellent academics.

For a confidential discussion or a copy of the position descriptions please head to our website http://www.claritynz.com/contact-us/ talent acquisition: culture fit

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

PROGRAMME PRESENTERS CONTENT WHERE WHEN ADMINISTRATIVE/PUBLIC

PUBLIC SECTOR Chair: This intensive will update you on the current dynamics and Wellington 26 Oct GOVERNANCE Aaron Martin issues in public sector governance, focusing on the themes of values, relationships and accountability. The programme 6.5 CPD hours will appeal to all lawyers who work in or externally advise the public sector, as well as those in governance and policy roles.

CIVIL LITIGATION

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

LITIGATION SKILLS Director: Due to popular demand, we are running the second Wellington 12-18 Nov PROGRAMME Janine Bonifant Litigation Skills Programme this year in Wellington. The programme provides in-depth hands-on advocacy training 55 CPD hours for applicants with at least two years’ litigation experience. This course is non-residential and places are limited to 24 participants. Applications close 28 September.

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

COMPANY, COMMERCIAL AND TAX

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

CRIMINAL

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

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

FAMILY

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

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

PROGRAMME PRESENTERS CONTENT WHERE WHEN FAMILY

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

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

CAPACITY – WHAT YOU Prof Kate Diesfeld The levels of capacity required for entering into an enduring Webinar 12 Sep NEED TO KNOW Dr Mark Fisher power of attorney, making a will or, a complex transaction Robb Newberry are diŽ erent. Following on from a well-received session at 1.5 CPD hours the Elder Law Intensive in May this year, the presenters will explore these varying levels of capacity and provide practical advice and tools and advice to assist you in your practice.

FOCUS ON MENTAL Chair: Mental health advocacy is a unique aspect of legal Auckland 14 Sep HEALTH IN THE COURTS Her Honour Judge practice. Lawyers with mental health clients must know Wellington 15 Sep Pippa Sinclair and think about their duties to their clients, as they do in Live Webstream 15 Sep 6.5 CPD hours the adversarial system, but also preserve the therapeutic relationship those clients have with their clinicians – and this makes the task diŽ erent and more di’ cult. This day has a practical focus and is designed to enhance advocates’ understanding of the legal and medical issues in this area as well as latest developments.

PRIVACY AND Robert Kee The Human Rights Review Tribunal has jurisdiction to hear Webinar 4 Oct HUMAN RIGHTS ACT Simon Judd cases alleging discrimination under the Human Rights Act PROCEEDINGS 1993 or interference with privacy under the Privacy Act 1993. This webinar will provide practical guidance on litigating 1.5 CPD hours discrimination and privacy proceedings in this forum and refer to some of the key themes emerging from the case law.

MEDIATION FOR Virginia Goldblatt Mediation knowledge and skills are an increasingly important Wellington 13-15 Oct LAWYERS PART A – plus either adjunct to legal practice. Many more clients are taking disputes UNDERSTANDING David Patten or to mediation (because it works) and the more that legal MEDIATION Geoff Sharp advisers know about how it works the better. In addition, practice as a mediator extends the service that lawyers can 14.5 CPD hours oŽ er the public.

PRACTICE AND PROFESSIONAL SKILLS

MARKETING YOUR LAW Sheldon Nesdale This webinar will outline practical steps that you can take Webinar 13 Sep FIRM in order to attract new clients to your fi rm. These steps will include: taking a fresh look at what you say, on the phone, 1 CPD hour in person and on your website; making it easier for your clients to reach you; reducing risk and improving trust; and communicating from your clients’ perspective.

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

TRUST ACCOUNT Philip Strang How do you keep a trust account in good order? This practical Hamilton 21 Sep ADMINISTRATOR training is for new trust accounting staŽ , legal executives, legal secretaries and o’ ce managers. 4 CPD hours

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

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

INTRODUCTION TO John Adams This workshop will show you how to run a domestic violence/ Christchurch 6-7 Nov PERSUASIVE LEGAL John Adams Successful writing is persuasive. This workshop will show Christchurch 3 Oct FAMILY LAW ADVOCACY Usha Patel interim parenting case from go to whoa. Through precedents, Wellington 13-14 Nov WRITING Simon Cunliff e you how to structure your document, manage tone, achieve Wellington 4 Oct AND PRACTICE videos, a book of materials, and performance critique, this Jane Hart maximum impact and avoid common writing faults and much Auckland 20-21 Nov Auckland 5 Oct course, recommended by the Legal Services Agency, is sound, 6.5 CPD hours more. 13 CPD hours participatory and proven.

MEDIATION FOR Virginia Goldblatt This workshop builds on the NZLS CLE workshop Mediation Auckland 17-19 Nov KEEPING YOUR Ralph Brown This webinar will give you practical ways to retain more sta Webinar 17 Oct LAWYERS PART B – Geoff Sharp for Lawyers Part A which provided opportunity to TEAM (INCLUDING and to help them to be more productive. The presenter will FAMILY Denise Evans understand the process of mediation and to learn to think MILLENNIALS) draw on the research in psychology and 30 years leading like a mediator – not a lawyer. It provides further opportunity MOTIVATED a team of highly-motivated people with extraordinarily 15 CPD hours to observe a civil mediation, to dissect it and to practise low sta turnover. Discover what science reveals about mediation skills. 1.5 CPD hour motivation, millennials and what you can do to develop your team culture. GENERAL Registrations open 12 September.

CAPACITY – WHAT YOU Prof Kate Diesfeld The levels of capacity required for entering into an enduring Webinar 12 Sep READING ACCOUNTS Lloyd Austin A workshop to enable you to unlock the mysteries of Auckland 6-7 Nov NEED TO KNOW Dr Mark Fisher power of attorney, making a will or, a complex transaction AND BALANCE SHEETS fi nancial documents, gain an insight into the world of Hamilton 8-9 Nov Robb Newberry are diŽ erent. Following on from a well-received session at accounting and make you more e ective and confi dent the Elder Law Intensive in May this year, the presenters will Christchurch 13-14 Nov 1.5 CPD hours 7 CPD hours when advising your clients on fi nancial matters. explore these varying levels of capacity and provide practical Wellington 15-16 Nov advice and tools and advice to assist you in your practice.

FOCUS ON MENTAL Chair: Mental health advocacy is a unique aspect of legal Auckland 14 Sep STEPPING UP – Director: All lawyers wishing to practise on their own account whether Auckland 3 9-11 Nov HEALTH IN THE COURTS Her Honour Judge practice. Lawyers with mental health clients must know Wellington 15 Sep FOUNDATION FOR Stuart Spicer alone, in partnership, in an incorporated practice or as a and think about their duties to their clients, as they do in Pippa Sinclair PRACTISING ON OWN barrister, will be required to complete this course. (Note: the adversarial system, but also preserve the therapeutic Live Webstream 15 Sep 6.5 CPD hours ACCOUNT 2017 From 1 October 2012 all lawyers applying to be barristers sole relationship those clients have with their clinicians – and are required to complete Stepping Up). Developed with the this makes the task diŽ erent and more di’ cult. This day support of the New Zealand Law Foundation. has a practical focus and is designed to enhance advocates’ 18.5 CPD hours understanding of the legal and medical issues in this area as well as latest developments. LAWYER AS NEGOTIATOR Jane Chart Negotiation is a vital skill for every lawyer and improved Auckland 15-16 Nov negotiation skills can help avoid unnecessary litigation and PRIVACY AND Robert Kee The Human Rights Review Tribunal has jurisdiction to hear Webinar 4 Oct produce better settlements more e• ciently. Attend this HUMAN RIGHTS ACT Simon Judd cases alleging discrimination under the Human Rights Act 11.5 CPD hours workshop to gain an understanding of the risks and benefi ts PROCEEDINGS 1993 or interference with privacy under the Privacy Act 1993. of various negotiation strategies and techniques. This webinar will provide practical guidance on litigating 1.5 CPD hours discrimination and privacy proceedings in this forum and refer to some of the key themes emerging from the case law. PROPERTY MEDIATION FOR Virginia Goldblatt Mediation knowledge and skills are an increasingly important Wellington 13-15 Oct CHANGING LANDSCAPES Chair: An update of the latest issues and developments in the Christchurch 6 Sep LAWYERS PART A – plus either adjunct to legal practice. Many more clients are taking disputes – RURAL LAW IN ACTION Sue Anderson rural law environment including water quality issues, equity UNDERSTANDING David Patten or to mediation (because it works) and the more that legal Hamilton 7 Sep partnerships, Fonterra, bank securities, keeping the farm MEDIATION Geoff Sharp advisers know about how it works the better. In addition, intact, Overseas Investment O• ce, Emissions Trading Live Webstream 7 Sep practice as a mediator extends the service that lawyers can 6 CPD hours Scheme & forestry, Health & Safety and employment. 14.5 CPD hours oŽ er the public.

PRACTICE AND PROFESSIONAL SKILLS IN SHORT Documentation of cross lease title and defective issues Auckland 5 Sep MARKETING YOUR LAW Sheldon Nesdale This webinar will outline practical steps that you can take Webinar 13 Sep CROSS LEASE – Joanne Chilvers with them can be quite problematic. This presentation FIRM in order to attract new clients to your fi rm. These steps will DEFECTIVE TITLE AND Anthea Coombes Live Webstream 5 Sep include: taking a fresh look at what you say, on the phone, ISSUES will highlight what to look out for, how to go about fi xing issues, obtaining lessor’s consent, repairs, alterations and 1 CPD hour in person and on your website; making it easier for your clients to reach you; reducing risk and improving trust; and 2 CPD hours additions to buildings as well as requisitions under the ADLSI communicating from your clients’ perspective. Agreement for Sale and Purchase. It is clear that while existing homebuyers are often Auckland 28 Sep TRUST ACCOUNT Philip Strang To become a Trust Account Supervisor you must pass Wellington 14 Sep KIWISAVER – FIRST Carmen Franich fi nding it easier to obtain fi nance than those entering the SUPERVISOR TRAINING Ben Potaka assessments set by the Law Society (reg 19 Lawyers and HOME BUYERS Wade Hansen Live Webstream 28 Sep Auckland 14 Nov housing market for the fi rst time, KiwiSaver is a tool that PROGRAMME Conveyancers Act (Trust Account Regulations) 2008). The training programme consists of 40-50 hours of Christchurch 23 Nov 2 CPD hours enables signifi cant fi nancial assistance for these fi rst home purchasers. This seminar will help you provide your clients 7.5 CPD hours self-study learning modules to help you prepare for the assessment day. with robust advice when they are seeking to utilise KiwiSaver funds and will also outline the practical steps that you TRUST ACCOUNT Philip Strang How do you keep a trust account in good order? This practical Hamilton 21 Sep can take in order to ensure that this process proceeds as ADMINISTRATOR training is for new trust accounting staŽ , legal executives, smoothly as possible. legal secretaries and o’ ce managers. EVIDENCE ACT FOR Allison Ferguson Evidence is fundamental to the outcome of any civil litigation Auckland 3 Oct 4 CPD hours CIVIL LITIGATORS Felicity Monteiro case because, in the usual course of events, the facts at issue Live Webstream 3 Oct in a case must be proved by the evidence. This seminar will 2 CPD hours consider some of the key themes emerging from recent cases and also assist you in gaining a better understanding of the practical implications of the Evidence Act.

For FULL CPD calendar see www.lawyerseducation.co.nz For FULL CPD calendar see www.lawyerseducation.co.nz LIFESTYLE

LIFESTYLE

Litigation solicitor Simon Lawyer and best mates O’Donnell, James Sawers and Nico Clere are all 25-years-old and are in the midst of what they hoped would hit the road with a be the adventure of a lifetime. “It’ll take us about six weeks so it won’t be a quick trip as the rules lemon for marathon of the race mean the car has to be powered by a 1000cc engine or less,” Mr O’Donnell says. rally adventure The plan is to drive one day and explore the destination the follow- ing day. BY NICK The Mongol Rally organisers BUTCHER encourage competitors to enter the worst chariot they can find. Mr Surely, there are safer ways of seeing that part of the O’Donnell and co got a 1999 Nissan Some people might question why world? Micra in England for about £350. a group of young men would want However, nothing appears to have deterred a “The shittier the better. If you’re to travel in a small beaten-up car Wellington lawyer and former ‘scarfie’ from the spending more than a few hundred from London to Mongolia, crossing University of Otago, and two of his oldest mates from quid on your car then something’s borders near war-torn countries taking part in an unpredictable 17,000km road trip for wrong,” the organisers say. such as Afghanistan and less charity called the Mongol Rally. There were 332 entries in this friendly to the west nations such LawTalk caught up with them before they left for year’s event and the New Zealand as Iran and Russia. their journey, and also during the odyssey. team were lucky to get sponsorship

86 LAWTALK 910 · September 2017

to help with costs from car dealers Gazley, in Wellington, During the rally ‘Flightless’ was ▴ Nico Clere, Simon O'Donnell, and chartered accountants Staples Rodway, in Hawke’s due to stop at Afghanistan’s third and James Sawers. Bay. largest city, Herat, in the suppos- edly safer north-western part of the The rules of the Rally are country. had us hopscotching rocks and ford- gloriously simple: “I’m a little nervous – these coun- ing ice melts. The scenery was abso- 1 You can only take a farcically small vehicle, tries are the unknown but breaking lutely stunning, but halfway down 2 You’re completely on your own, down people’s preconceived ideas a 2,600-metre pass our driveshaft 3 You’ve got to raise £1,000 for charity. about these places will be good,” failed. We were towed by a 4WD Mr O’Donnell’s team is called Flightless because they’re he says. to the nearest village three hours Kiwis. The event and experience is away. The next day, after another Planning well could make the difference between costing each team member about two tows, we had the car repaired sleeping in the car in a Middle Eastern desert or at $5,000 each. in Georgia’s second city. Things backpacker accommodation, but then sometimes plans I spoke with Mr O’Donnell when were looking up after an anxious go out the window. they stumbled into Georgia a few 24 hours,” he says. Mr Clere, who is an engineering surveyor, apparently weeks into the rally and it appeared As it turned out, Nico Clere didn’t took a crash course in mechanics before the event began as if they were in good spirits and actually take the course in mechan- on 16 July, which Mr O’Donnell says gave them some the journey was rolling on smoothly, ics he promised the team, and he peace of mind. despite some of the rugged terrain. was forced to buy beer as penance. “My first car was a Toyota Hilux flat deck so I know the Team ‘Flightless’ had been driving Before the driveshaft gave in basics, but Nico said he did some night classes on how about nine hours a day, making good Simon was complimentary of the to fix engine problems so we’re not totally hopeless.” ground and clocking up to 1,000km car, almost stunned that it had sur- In preparation for the adventure the team had daily in the Micra. vived; after all, it was only worth to obtain several visas to be able to enter the many “We can’t go any faster than the equivalent of NZ$700 and had countries scattered along their stray tangent journey to 110km/h or things start to fall off the travelled thousands of kilometres. Mongolia’s capital Ulaanbaatar where they’ll eventually car. Many of the roads were actually “Oddly, its coping, only one cross the finish line some two months after leaving really good especially the Autobahn problem, a squeaking suspension, London in mid-July. highway system in Germany,” he we’ll check it once we’ve found a “The Russian embassy (in Wellington) was interesting. says. cheap mechanic. Nico was meant to A tiny room with a picture of President Vladimir Putin have done that mechanics course, in the corner. It was quite frightening, actually. Just one Disaster strikes but it turned out he hadn’t. We are man who spoke very little English. He just said ‘papers However, a couple of minor disas- running blind but we are going well please’ and instructed me to come back in two weeks ters struck, hand-braking the team considering,” Mr O’Donnell says. and I popped the papers through a small hole in the just after we hung up the Skype call. So, with the car repaired, team wall in a complete nonchalant building in the middle “The Caucasus mountain road Flightless took off again. However, of Karori,” Mr O’Donnell says. turned out to be a 4WD track which disaster number two was about to hit.

87 The priest and his Lada as they travelled through Azerbaijan ▴ The result of Zestafoni's town Orthodox priest “Half an hour later, driving through and had entered Iran. veering across the center line pinning their car the small town of Zestafoni, Georgia, against a lamp post. the local orthodox priest, driving a A few setbacks, and solid yellow Russian-made Lada plenty of highlights Niva, veered across the centreline There were some notable highlights, pinning us against a lamp post, such as their time in Romania. before continuing head on into the “There’s a road there that Top Gear car behind us. called the best road in the world, “The rule of law and the road as I the Transfagarasan. The road wound understand it is gone. It looks like up a steep hill, pretty bloody fun. we’ve finally found ourselves in the We ended up driving up it twice chaos that makes the Mongol Rally,” so everyone could have a turn. It’s he says. 90km long. There’s a 10km strip that “We were unhurt; the occupants just twists and turns perfectly,” Mr of the car behind us were less lucky O’Donnell says. and were injured. The priest wiped He says in Bulgaria and Turkey out our two left doors and a wing the road conditions deteriorated. mirror.” “They just got worse, but that’s As the day unfolded, the old the fun of it, there’s potholes and saying ‘every cloud has a silver cows plus the crazy local drivers to lining’ came true. deal with. The locals are great people “A young lad, Davit, who spoke until they get on the road – they turn some English, offered us a place to into nut-jobs.” stay. After a six-hour ordeal at the The team freedom-camped near police station, we went to his vil- Gallipoli and held their own dawn lage. Lucky for us, in Georgia, guests ceremony to remember the fallen are considered gifts from God – in ANZAC soldiers. this case from his messenger the “We were near Anzac Cove, we got priest. Over the next two days Davit up at six o’clock to go there. It was expected. We entered every country ending in ‘Stan’ took us into his home and helped us just us, very peaceful and reflective. but Pakistan. I feel we should go to Pakistan just to get rescue our car from the pound and It was good to be able to put into the stamp.” replaced the doors,” he says. context the horrific images we saw As to where team Flightless are now? That’ll be another The following day, the trio were growing up, such as the battle of story we may bring you in the next edition of LawTalk, back on track and my last corre- Chunuk Bair,” he says. or you can check them out on Facebook at ‘Flightless spondence with them was positive “The event is better than we – Mongol Rally 2017’. ▪

88 LAWTALK 910 · September 2017 LIFESTYLE

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A New 25 26 27 28 29 30 Zealand 31 32 33 Legal 34 35 Crossword Across Down 1/10 Pray sermon produces a 4 1 Show work up by Marama Fox, for down 14 (5,5) example (4) SET BY MĀYĀ 4 Being more familiar, he sends 2 The thorny subject of wine? (4) mail on (to prison guard?) (9) 3 Redirect gaze to first New York 9 Boxer's valid case dismissed (3) river (7) H A C K E R P A N A M A 10 See 1 4 Related to rubbing one-handed? I E U A O A M A R I N E S S U R V E Y S 11 Pursue eccentric? That shows Fantastic! (9) O D Y T S D S O face (5,4) 5 Wolf, 2, ditching Scary (initially) T R O J A N M P I S T O L I O N E P O T I C R E 12 Often triangular space in for Posh (4) F I R E M S T W O R D latticework (5) 6 We follow 12 for a 4 down 14 F O N S E C A 13 9 heard before this 4 down 14 (followed by a bird) (7) C R I M R A H F I V E Y N B A T C H E S N M put radio in food (6) 7 Bird may follow a preacher to birds B E F A L L K R A N S O M 17 Hammer's type of cinema? (5-2) to make a sailor (and an apostle to E A O E W G U E 18 Refuse to acknowledge Caesar's make an assistant to 1/10) (5) R U N A W A Y A N G U L A R T S E L E I going west before a 5-0 win, to 8 Free of rising filth, almost(3) P A P E R S L A D I N G begin with (7) 14 You may be one hen embracing 20 An Egyptian vital spark by woman! (6) Solution to August another name (1.1.1.) 15 Jams freedom in plugs (2-4) 2017 crossword 21 Thoroughly blacken pot found 16 "So, I like kissing heads?" (A TV Across: on desk? (7) series about 4 down 14s) (4) 1 Hacker, 5 Panama, 8 Marines, 23 4 down 14's an odd stick (of the 18 A 4 down 14 - Colonel Dan, 9 Surveys, 11 Trojan, 14 Pistol, Old Bill? Not quite) (7) perhaps - one with insincere 15 Nepotic, 16 Fire, 17 Word, 25 Rusty 4 down 14's a heartless advocates (9) 18 Fonseca, 19 Crim, 21 Five, dog (6) 19 I love almost holding upturned 24 Batches, 26 Befall, 27 Ransom, 27 Correct hospital for Miss Nesbit? instrument (4) 30 Runaway, 31 Angular, 32 Papers, (5) 22 Pitches naked wench towards 33 Lading 31 I let vomit become a recurring current (7) theme (9) 24 Test cricket is over (5,2) Down: 32 See 35 26 Shiny things Bada's successor 2 Airdoor, 3 Kenyan, 4 Rust, 5 33 In serious debt (1.1.1.) left inside (5) Pass, 6 Nordic, 7 Maestro, 8 Motif, 34 Prescribed wise men's tar coat 28 Mix porridge (4) 10 Soled, 12 Nemoral, 13 Mossack, (a litre) (9) 29 Hit from The Police (US version) (4) 14 Pitcher, 19 Cyber, 20 Infanta, 35/32 Close's 4 down 14 cuts, say, 30 Spot the hacker? (4) 22 Insulin, 23 Emmer, 24 Blowse, a portion of ground meat the 31 Hit from one quarter of Don 25 Sagged, 28 Eyes, 29 Wall other way round (5,5) McGlashan's old band (3)

89 TAIL-END September 2017 · LAWTALK 910

TAIL-END

over 50,000 lawyers in the province of Three sort of interesting Ontario, Canada’s most populous. Christian law school case developments in the reaches Supreme Court Canada’s legal profession has spent sev- eral years and seen quite a bit of court Canadian legal profession action in the Trinity Western University saga, which has now become a High Noon showdown in the country’s highest Farewell Justice Begbie The Law Society of court. The private Christian university in Early in June the Law Society of British Upper Canada British Columbia has wanted to establish Columbia removed a statue from Back in 1797, lawyers of the province of a law school since 2013. The problem is the lobby of its Vancouver building. Upper Canada formed an organisation, that anyone attending Trinity must sign up The equestrian statue of Sir Matthew the Law Society of Upper Canada. Upper to its Community Covenant, which bans Begbie, the first judge appointed in Canada stopped being a political entity students from having sex outside of het- the province, was scrapped following in 1841, but the society’s name endured. erosexual marriage. A number of Canada’s a recommendation from the society’s Now, 220 years after its formation, law societies and lawyer organisations Truth and Reconciliation Advisory possibly the oldest law society in the have said they will not recognise Trinity Committee. The committee said the Commonwealth is debating whether to law graduates, meaning they will not be statue of Justice Begbie – known as change its name. Lawyers are divided. able to work as lawyers in provinces such the “hanging judge” – was offensive to “I know we are a conservative organi- as British Columbia and Ontario. The British the Tsilhqot’in people. He sentenced six sation, but hanging on to this pre-1841 Columbia Court of Appeal ruled in favour Tsilhqot’in chiefs to death by hanging name is ridiculous,” says one of the pro- of Trinity last year and the Law Societies of for their role in the Chilcotin War, even ponents of change, Tom Vincent (who Upper Canada and British Columbia have though a state of war existed and the unsuccessfully tried for a name change in now appealed to the Supreme Court. The rules of military engagement should 2012). “It’s always been the Law Society appeals will be heard on 30 November have been respected. The law society of Upper Canada. It has got historical and 1 December and promise to be a says it will replace the statue with a value,” says status quo supporter Earl much-covered event: 26 different groups unifying symbol. Cherniak. The law society regulates have been given leave to intervene. ▪

Notable Quotes ❝ A person who is fat, like the chief of staff, does not display soldiery, and he is not an example for the entire army, in ❝ There has been a change in culture over the years the way a chief of staff is supposed to be. The chief of and physical chastisement of children is increasingly staff could never pass an army fitness test. I am at least 10 understood to be both ineffective and out of step with years older than the chief of staff. I run seven kilometres our understanding of children’s rights. ❞ in 40 minutes five times a week. I want to see the chief — Law Society of Scotland spokesperson Ian Cruickshank of staff do the same. ❞ supports a bill in the Scottish Parliament which would ban — Yoram Sheftel, Israeli lawyer for a former solder found guilty the smacking of children. of manslaughter after killing a disarmed, incapacitated Palestinian, gives his opinion of Army Chief of Staff Gadi ❝ It is not an automatic disqualifier. There are many times Eisenkot on Israeli TV after an appeal was turned down. where we see things that happen early in a person’s life that cease to be problems for them. What we do see is ❝ I think the verdict is wrong. I wouldn’t give the three ... people take responsibility for their past conduct and magistrates a job in a car wash. ❞ very often have been rehabilitated. ❞ — English retiree Leslie Gilmer after being convicted of assault — Anne Dranginis, chair of the Connecticut Bar Examining and fined in the Exeter magistrates’ court. Mr Gilmer had Committee on whether a felony conviction will prevent been confronted by barrister Peter Ellis during a train trip someone practising law in the state. Reginald Betts, 36, after repeatedly sneaking into first class and taking wine has passed the bar exam but has three felony convictions and pretzels. He responded by stuffing a £10 note into Dr for a carjacking committed as a teenager. Ellis’ mouth.

90 LAWTALK 910 · September 2017 TAIL-END

Two mistakes by self-represented Oklahomans

1: The wrong question the defendant took when he elected to Marshall George Cummings Junior, aged represent himself is the happenstance 25, was charged with snatching a purse which occurred. The lawyer had a fool from a woman on 14 October 1976. At for a client. There was no error,” the his trial in January 1977, Mr Cummings court concluded. It did, however, reduce elected to represent himself, a decision his sentence from 10 years’ to five. he came to regret when cross-examining the victim. “Did you get a good look 2: The wrong outburst at my face when I took your purse?” Dennis Newton, 47, was charged with the Mr Cummings asked. After an almost armed robbery of a convenience store inevitable conviction, and a sentence in Oklahoma City in 1985. He refused to of 10 years’ in prison, he appealed the speak to the assigned public defender at sentence. Among his grounds were an the start of the trial and chose to defend error by the court in allowing him to himself. All went well, apparently, until represent himself and that “there was testimony from store manager Darlene not a knowing and intelligent waiver of Danner that Mr Newton was the robber. the right to counsel.” He leapt to his feet and said “You lying A year later in Cummings v State 578 bitch. I should of blown your ******* head P.2d 378 the Oklahoma Court of Appeals off.” Apparently he made a fast recov- found that Mr Cummings had been fully ery after a short and thoughtful pause, advised of his rights. “The fact that the quickly adding “…if I’d been the one that defendant conducted his cross-examina- was there.” The jury took 20 minutes to tion of the State’s witnesses in the first convict him and recommended 30 years’ person only illustrates that the chance imprisonment. ▪

❝ We will serve anyone rich or poor. We will get to everyone ❝ It appears she relied on Wikipedia, of all things, to learn and we can also help sign any documents that need a the complex ins and outs of Texas capital-punishment lawyer’s signature and it’s for free. The only documents law. Her files included a copy of the Wikipedia page that we don’t sign for free are documents from overseas.❞ titled ‘Capital punishment in Texas’, with a post-it note — Samoan lawyer Unasa Iuni Sapolu announcing the introduction stating ‘Research’ next to highlighted passages of ‘Habeas of a free legal advice service in Apia every Saturday. corpus appeals’ and ‘Subsequent or successive writ applications’.❞ ❝ In today’s environment, lawyer jokes are abundant. — Part of an unsuccessful application for clemency to the You’ve heard the one about ‘what’s 1,000 lawyers at the US Supreme Court which alleged that Brandy Estelle, the bottom of the sea? A good start’. You not only reinforce attorney for TaiChin Preyor, mishandled his initial appeal that stereotype, but you buttress the idea that lawyers against the death sentence. The application was rejected can’t be trusted. ❞ and Mr Preyor was executed on 28 July. — Florida Circuit Judge Sue Venzer during sentencing of (soon to be former) attorney Jose Camacho to 364 days in jail ❝ We now have lawyers, who come to court and present for forging the signatures of at least eight judges over 100 themselves as disinterested observers in body and in mind times on bogus settlement orders. in their own cases, yet you have been hired to represent someone on a life issue. ❞ ❝ The requirement of standing in judicial review proceedings — Zimbabwe’s Chief Justice Luke Malaba at the Law Society has been significantly relaxed in New Zealand. But it is of Zimbabwe conference, criticising “lazy” lawyers who not so relaxed that it is horizontal. It still exists. ❞ appear in court without carrying out proper research on — Palmer J in Smith v Attorney-General [2017] NZHC 1647. their cases.

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