New Zealand Law Society 1869-2019

ISSUE 932 · September 2019

NEW ZEALAND LAW SOCIETY 1869-2019

Making New Diversity in Recruiting and Global Zealand a Pacific the NZ legal retaining staff trends for arbitration hub profession: At a the in-house glance profession

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NZ Lexis Draft A4 PRINT AD APR2019.indd 1 08/04/2019 1:19 PM Our commitment

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Over one hundred years NEW ZEALAND ANIMAL LAW ASSOCIATION 2019 CONFERENCE of helping CREATING A BETTER LEGAL SYSTEM FOR ANIMALS 9 AM – 5 PM | SAT 28 SEPTEMBER 2019 The New Zealand Nurses’ Memorial Fund was founded in 1917 by fellow nurses as a practical memorial to the 10 nurses who drowned TICKETS ARE AVAILABLE FROM EVENTBRITE when the SS Marquette was torpedoed in the $75 for Financial Members of NZALA and Early Bird Aegean Sea in October 1915. Do you and your General Admission clients know about this fund? $90 General Admission Money raised throughout New Zealand established $40 Students a benevolent fund which has given assistance Visit www.nzala.org/news/ for more information about speakers and to nurses who suffer distress or hardship and discussion topics. continues to do so today. Bequests and donations are gratefully received and assist in the Fund’s ongoing work. The Fund is a registered charity (No CC28877). VENUE Auckland University of Technology, WG403 Lecture Please contact [email protected] or PO Box Theatre on Level 4, Sir Paul Reeves Building, AUT 5363 Dunedin 9054 for more information. Business School, 55 Wellesley St E, Auckland Central 129

6 · From the Law Society 43 · The Zero Carbon Bill – a framework for New Zealand’s people in the Law climate change journey 7 · On the move ▹ BY DUNCAN BALLINGER 12 · Pushing the boundaries of 46 · New Incorporated Societies corporate social responsibility Act ▹ BY MARK VON DADELSZEN ▹ BY ALEX SUMMERLEE 48 · The story behind the first 4868 14 · La vie en rose ▹ BY SARAH- Tokelau High Court judgment KATE HOARE ▹ BY RICHARD FLETCHER 49 · Law Commission recommends New Zealand Law Society a new Act for dividing 16 · New Zealand Law Society property when people 18 · A Changing Profession separate ▹ BY NICHOLA ▹ BY GEOFF ADLAM LAMBIE AND JOHN-LUKE DAY

Update Alternative Dispute 42 · “Default” union enrolment Resolution widely supported, study 52 · Experienced arbitration finds▹ BY LYNDA HAGEN lawyers aiming to make New Zealand a Pacific arbitration hub ▹ BY NICK BUTCHER 8868

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4 Contents

55 · Arbitrations and Proportionality practising Well 88 · Lawyers Complaints ▹ BY ROBERT FISHER QC 77 · Anxiety happens to Service 57 · Appointing your arbitrator me, and asking for help ▹ BY JOHN WALTON makes me a better lawyer Classifieds 59 · Cognitive dissonance ▹ BY HENRY CLAYTON 90 · Will notices ▹ BY PAUL SILLS 80 · Coaching: a new approach 92 · Legal Jobs to address wellbeing and 93 · CPD Calendar Practice performance ▹ BY SHA PERERA 61 · Diversity in the New Zealand 82 · Are your thoughts making Lifestyle legal profession: At a you sick? ▹ BY RAEWYN NG 96 · A New Zealand Legal glance ▹ BY GEOFF ADLAM Crossword ▹ SET BY MĀYĀ 68 · Some initiatives to promote Sustainable Practice 97 · Rumpole of the Bailey diversity in New Zealand’s 84 · The environmental impact ▹ BY CRAIG STEPHEN legal profession of those electronic 71 · Recruiting and retaining things on your desk 98 · Tail end staff ▹ BY TRACEY CORMACK 74 · Having the philanthropic Legal Information conversation ▹ BY ELEANOR CATER 86 · Online legal information 75 · Global trends for the providers look forwards in-house legal profession ▹ BY DAVID TURNER ▹ BY JEREMY VALENTINE

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

5 FROM THE LAW SOCIETY September 2019 · LAWTALK 932

FROM THE LAW SOCIETY

150 years on

On 3 September, the Law Society will arrive at exactly 150 years since it was first organised under the New Zealand Law Society’s Act 1869. I could go on about the detailed history, and what happened in 1897. I could talk about the fact that in that year, not long after the establishment of the Law Society, we saw the first Māori lawyer (Sir Āpirana Ngata) and the first woman to be admitted to the bar (Ethel Benjamin). About the example they set all those years ago. But as someone once said to me, “you only look back insofar as you are prepared to look forward”. In other words, we should only look at history if we are prepared to learn from what happened with a view to making the future better. The truth is that in 2019, we have yet to fulfil the promise of a profession that reflects the society we serve. While we have just over 800 lawyers that identify as Māori, this is out of a total number of 14,000 and does not reflect the national population. The Law Society has only recently accepted the need to come halfway and do the work required to gain cultural competency in te reo and tikanga. Ethel Benjamin was not supported at all by the Law Society and was restricted from being able to use the law library. She set up a business and succeeded as New Zealand’s first female lawyer, in spite of the organisation. And while We are now at the point break where it is finally tipping the profession comprises of just over 50% women, we into a wave. We can either be completely engulfed by have yet to achieve gender equality at the senior levels it or ride the wave to a totally new future. I believe we and pay parity. And if anyone doubted that was the case, can get there. To get to a place where the profession the revelations of 2018 confirmed a sad reality. We have actively strives for inclusion and, therefore, becomes a culture which no longer works. It probably never did. more diverse. Where equity is the touchstone. Where we So yes, we have come a long way. But the distance we fight for access to justice for all. One where Sir Āpirana have yet to travel is like shooting for the moon and back. Ngata and Ethel Benjamin would be proud that, despite The good news is that we are starting to confront that the effort required to break the barriers they faced and history. In fact, Aotearoa New Zealand, as a country, the discrimination they undoubtedly experienced, it appears to be confronting a whole lot of truths about was worth it. It was worth it because the very purpose whether “this is not us” is a true statement. After of what we do is to be fair and serve our community. It 50 years of a “get tough on crime” policy we have a is what they did. And so shall we. Government openly acknowledging that a punitive John F Kennedy once said “we do these things, not approach to criminal justice simply does not work. because they are easy, but because they are hard”. He was An independent review of the Family Court reforms talking about getting a human to the moon for the first proved that reducing the funding for a court dealing time and the effort it would take. What we are facing is with vulnerable people and complex cases was a mis- not that different. We will do this and succeed because take. Importantly, as a profession we are all holding up it must be done. Because if we don’t then we have failed the mirror and taking a good, long and uncomfortable to achieve our very purpose as a legal profession. To be look at ourselves. Dame Silvia Cartwright put it pretty just and fear not. ▪ squarely before us when she said the profession has arrived at “a watershed moment”. We have. The water Tiana Epati has been building for some time. Possibly for 150 years. President, New Zealand Law Society.

6 LAWTALK 932 · September 2019 PEOPLE IN THE LAW · ON THE MOVE

PEOPLE IN THE LAW ON THE MOVE

Cheryl Gwyn appointed the University of Canterbury with an LLB for child and lawyer to assist as well as to High Court in 1986 and began his career as a solicitor being a youth advocate. While in practice at Harman & Co. He was admitted to the he was heavily involved in regional New The Inspector-General of Intelligence and partnership of Harman & Co in 1991, before Zealand Law Society initiatives involving Security, Cheryl Gwyn, leaving in 1998 to travel overseas. From the Family Court. has been appointed 2000 to 2001 he was an adjudication and a Judge of the High mediation member of the Employment Farewell sitting for Court. She was sworn in Tribunal, while also managing a sole Justice Toogood at the Wellington High practice as a litigation lawyer. Court on 9 August and In July 2001 he joined Cavell Leitch Law A farewell sitting was held for Justice will sit in Auckland. as the Head Litigation Partner. He prac- Christopher Toogood in Auckland on 2 Justice Gwyn grad- tised in a broad range of areas including August. He has retired from the High Court uated from the University of Auckland commercial litigation, arbitration and bench after being appointed a High Court in 1979 with a BA in Political Studies and mediation, employment, human rights, Judge on 8 March 2011. English and an LLB(Hons). She spent some and criminal law. While in this role, he Justice Toogood graduated from Victoria time at the Hawke’s Bay Farmers’ Meat graduated from the University of Auckland University of Wellington in 1972 and was Company before taking up a role in 1985 with an LLM (Comm) (Hons). He will sit admitted as a barrister and solicitor the as an Investigating Officer in the office of in Christchurch. following year. After 18 years as a litigation the Race Relations Conciliator. lawyer, he joined the independent Bar in She joined Chapman Tripp in 1986, Russell Walker appointed 1990 and was appointed Queen’s Counsel becoming a staff solicitor on her admission to District Court in 1999. In practice he specialised in civil to the bar in March 1987, and joining the and commercial litigation, employment, partnership in 1991. In 1996 she moved Russell Walker has been appointed a sports and criminal law. He also accepted to Russell McVeagh as a partner before District Court Judge numerous appointments as an arbitrator her appointment in 2001 as the Deputy with both jury and and mediator in employment and other Secretary for Justice at the Ministry of Family Court jurisdic- civil disputes. Justice. tion. He will be based From 2003 to 2014 Justice Gwyn was in Invercargill and was Andrew Dallas Deputy Solicitor-General overseeing the sworn in on 26 August appointed ERA Chief Attorney-General’s Group at the Crown in Palmerston North. Law Office and having direct responsibility Admitted as a barris- Andrew Dallas has been appointed Chief for the management of Treaty of Waitangi, ter and solicitor in December 1987, Judge of the Employment Relations Authority. constitutional and human rights law issues. Walker worked as a sole practitioner in He has been appointed for a three-year She was appointed the Inspector-General Palmerston North from 1997, practising term to November 2022. Dr Dallas took up of Intelligence and Security in 2014. criminal law until 2005 and thereafter his role on 22 August when the current focusing on Family Court work. As a Chief, James Crichton, stepped down. Mr Owen Paulsen Resolution Institute accredited mediator Crichton had been Chief since 2015 and a appointed Associate he conducted over 300 mediations. member of the Authority since 2004. High Court Judge Judge Walker was approved as a lawyer Mr Dallas was admitted as a barrister

Owen Paulsen has been appointed an Associate Judge of the High Court and was sworn in at the Christchurch High Court on 2 August. He had been Lord Chief Justice of the Kingdom of Tonga and the President of the Tongan Court of Appeal and the Land Court since 2015. Associate Judge Paulsen graduated from

7 ON THE MOVE · PEOPLE IN THE LAW September 2019 · LAWTALK 932

and solicitor in May 1998. He has an exten- In a statement, Sir Anand said when the the firm as a summer sive background in employment law, inquiry terms of reference were announced clerk in 2009 and both theory and practice. He holds a PhD in November 2018, the scope was widened became a solicitor in (Law) from Griffith University, Australia; to include faith-based institutions and the 2011. He was promoted co-authored an Australasian legal text scale of the inquiry increased markedly. to senior solicitor in on good faith collective bargaining; and “Because of that and the fact that the ‘set- June 2014 and to senior has worked as a legal officer and solicitor up’ and development phase of the inquiry associate in December in employment relations. He has been a is nearly complete, I have opted to step 2016. Will’s particular member of the ERA since November 2015. aside for a new Chair who can lead the specialities include disputes and advisory inquiry through to the completion of this work across the financial services, energy, Other ERA appointments important process.” and infrastructure/property sectors. On the announcement of his resignation, Geoff O’Sullivan has been appointed to the University of Waikato announced that Matanuku Mahuika the ERA from September 2019 for a term its Council had elected Sir Anand as the appointed to Callaghan of three years. Mr O’Sullivan was admitted next University Chancellor for a four-year Innovation board as a barrister and solicitor in January 1978 term commencing immediately. and operates Wellington-based employ- Wellington lawyer Matanuku Mahuika has ment practice O’Sullivan & Associates Katrina van Houtte been appointed to the board of Callaghan (Workplace Law Specialists) Ltd. rejoins Kensington Swan Innovation. Admitted as a barrister and Trish MacKinnon and Anna Fitzgibbon solicitor in December 1991, Mr Mahuika have been reappointed to the ERA for three- Katrina van Houtte has is a partner with Kahui Legal. He has year terms to August 2022. Both have been joined the Kensington experience as a lawyer advising on a wide members since 2012. Swan construction and range of corporate, commercial, Treaty of Tania Tehitaha and Christine Hickey major projects team as Waitangi, Māori land and administrative both stepped down from the Authority in Special Counsel. She law issues. He has experience in working August after seven years’ service. joins the team from with early stage and start-up businesses Fletcher Building, and has held a wide variety of director- Sir Anand Satyanand where she has spent ships and governance roles. Mr Mahuika’s resigns from Royal the last few years providing in-house legal tribal affiliations are Ngāti Porou and Ngāti Commission support to Fletcher Construction in both Raukawa. front-end and back-end matters. Katrina Sir Anand Satyanand started her career at Kensington Swan Tony Randerson QC has resigned as Chair of in 2006 and has a strong background in to lead Resource the Royal Commission construction, litigation and public law. Management into Historical Abuse Review Panel in State Care and in Will Irving becomes the Care of Faith-Based Russell McVeagh partner Retired Court of Appeal Judge Tony Institutions, effective Randerson QC has been appointed Chair from November 2019. Russell McVeagh has promoted commercial of a Resource Management Review Panel, He was appointed Chair of the Inquiry litigation and dispute resolution senior to make recommendations on reforming following its establishment by the associate Will Irving to partner in its the Resource Management Act 1991. Other Government in February 2018. Auckland office. Will began his career with members of the panel will be appointed in

8 LAWTALK 932 · September 2019 PEOPLE IN THE LAW · ON THE MOVE

coming months. Mr Randerson became a employment law advice it intends to combine with Dentons, barrister sole in 1989 and was appointed and support. She has the world’s largest law firm. It says the Queen’s Counsel in 1996. He was appointed previously worked at combination, following approval by part- a judge of the High Court in 1997 and to other smaller Dargaville ners and subject to meeting regulatory the Court of Appeal Judge in 2010. On his firms and has experi- requirements, is expected to launch early retirement in 2018 he was the longest ence in many different next year. sitting member of that court. areas of the law, includ- Since entering the Australasian region ing property, relation- in 2016 with offices in Australia and Papua Simon Waalkens joins ship property, estate planning and trusts. New Guinea, Dentons has been named the Rice Speir partnership fastest growing law firm in Australia, open- Kensington Swan ing offices in all of the major Australian Simon Waalkens has promotes Michelle markets and growing lawyer ranks by joined the Rice Speir Hill to partner 25%, in the past 12 months. Dentons is partnership from 1 reported to have over 8,600 lawyers and August. Simon was Michelle Hill has been professionals in 175 offices in 78 countries. admitted in March 2009 promoted to partner It was founded in March 2013 when several and is an experienced in Kensington Swan’s firms merged. commercial litigation Auckland property and regulatory/compli- team. Michelle’s Sue Wells appointed ance lawyer. He has conducted hundreds expertise is in com- AMINZ Executive Director of criminal hearings and has considerable mercial property, with experience appearing as lead counsel a particular focus on Sue Wells has been before the High Courts and Tribunals on commercial leasing, development projects appointed Executive a variety of civil, criminal, and regulatory and body corporate matters. Admitted as a Director of the Arbi- matters. barrister and solicitor in September 1996, trators’ and Media- she started with the firm in 2013 as a senior tors’ Institute of New Mark Baker-Jones to associate and was promoted to special Zealand (AMINZ). Ms lead Simpson Grierson counsel in 2018. Wells takes over from climate change practice Deborah Hart who had been AMINZ Exec- Te Kahui Manahi utive Director since May 2008. Ms Wells Simpson Grierson has joins LMC Law attended the University of Canterbury appointed former min- isterial policy advisor Te Kahui Manahi has joined Tokoroa firm Mark Baker-Jones to LMC Law. Te Kahui has worked for several lead its climate change Rotorua law firms, specialising in property practice as a special and family law. She was admitted as a counsel. Mark has barrister and solicitor in October 2015. Of worked extensively Ngati Tuwharetoa, Ngati Porou and Ngati as a climate change policy advisor both Maniapoto descent, Te Kahui is fluent in here and in Australia, and most recently te reo Māori. as an advisor to Climate Change Minister James Shaw. As well as climate change Atticus Legal promotes policy development he has worked as a Jo Wadmore to associate special counsel at DLA Piper and a partner Recognised industry experts. Serving legal at DibbsBarker (now Dentons). He has also Hamilton firm Atticus Legal has promoted documents for over held academic positions at the University Jo Wadmore to associate. Jo was admitted 30 years. of Queensland. as a barrister and solicitor in June 2018 after working previously as a legal execu- Pera Paniora joins tive. She has wide experience in property Fast, professional, nationwide WRMK Lawyers transactions and estate administration. process serving for solicitors and government agencies. Ihapera (Pera) Paniora has joined WRMK Kensington Swan to Lawyers’ Dargaville team. Pera is a member combine with Dentons P: (09) 302-2476 E: [email protected] of WRMK’s dispute resolution team and W:www.docuserve.co.nz has a particular interest in providing Kensington Swan has announced that

9 ON THE MOVE · PEOPLE IN THE LAW September 2019 · LAWTALK 932

and served five terms as a Christchurch 35 years’ experience as DLA Piper NZ appoints City councillor. She has held a number of an employment lawyer, Alicia Murray to partner positions in the not for profit sector and most recently as a part- as a Resource Management Act independ- ner for 20 years at Bell DLA Piper New Zealand has appointed ent commissioner. She also has worked Gully. Before that, he Alicia Murray to as a radio and television presenter. was at Russell McVeagh partner. Alicia is a for 20 years. He advises commercial litigator Four new members of and acts on both con- with more than 15 Richmond Chambers tentious and commercial employment years’ experience in issues. large-scale commercial Four new members have joined Auckland’s disputes: regulatory, Richmond Chambers. Meares Williams appoints investigations, restruc- Raynor Asher QC has resumed practice two associates turing, insolvency and general commercial at the bar as an arbitrator and mediator, (including construction disputes). She and providing opinions and advice. Mr Meares Williams has promoted two of its co-leads DLA Piper’s New Zealand insol- Asher was appointed lawyers to associate. vency and restructuring team. Queen’s Counsel in 1992 Belinda Ferguson DLA Piper New Zealand has also pro- and was appointed to has BA and LLB degrees moted Julia MacGibbon, Kate Rogers and the High Court bench from the University of Sophie Hudson to senior associate and In in 2005 and the Court Canterbury and was Sook Scorgie and Natalie Manning to of Appeal in 2016. He admitted in October senior solicitor. retired from the bench 2014. She works mostly in March 2019. in the area of relation- Todd Spencer joins Rachael Woods is an experienced civil ship property but also specialises in general Juno Legal and criminal litigator, and has significant civil litigation and property law. Belinda experience in defending regulatory has appeared as counsel in the District Todd Spencer has prosecutions. Before Court, Family Court and High Court. joined Juno Legal joining the chambers Kate Warren has a from Contact Energy she spent five years at a LLB and an LLM (Hons) where he was head of boutique insurance law from the University of commercial and new firm where her focus Canterbury. She was ventures. Todd has was predominately on admitted in July 2016. more than 20 years’ professional indemnity Kate works between experience in law and matters. the Christchurch and business working at a senior level in-house Lara Steel has broad Rolleston offices assist- and in private practice in New Zealand civil, criminal and reg- ing clients in a wide range of areas. She is and overseas. He started legal practice ulatory experience and particularly experienced in property and at Herbert Smith Freehills in London and joins as a full member commercial law, trusts and estate planning. moved to head up their Thai corporate having formerly been office. He returned to New Zealand as Richmond Chambers’ in-house counsel at Contact Energy before first junior barrister. moving to Chapman Tripp as senior solici- Rob Towner has over tor. He then moved into a commercial role with Contact Energy.

• Corporate and Lawhub promotes Ruth international tax Burgess to Associate • Tax transactional and advisory Lawhub has promoted • AML/CFT advice Ruth Burgess to asso- • AML/CFT audit ciate. Ruth was admit- • Structuring ted as a barrister and www.russassociateslaw.com solicitor in September • Contentious tax +64 9 972 0184 matters 2010 after graduating from the University of Canterbury. She is

10 LAWTALK 932 · September 2019 PEOPLE IN THE LAW · ON THE MOVE

experienced in immigration and estate electoral administration in New Zealand of Auckland’s Faculty of Law where she planning and will head Lawhub’s immigra- including the running of parliamentary taught papers on the Treaty of Waitangi, tion team, which is based in Christchurch elections and referendums, promoting jurisprudence, tikanga and the law, legal and Hamilton. compliance with electoral laws, ser- ethics and law and society. Natalie is based vicing the work of the Representation in Whakatāne. Susan Taylor appointed Commission and providing advice, reports to trustee board and public education on all electoral mat- John Morrison joins ters. “Ms Shroff has a proven track record of Hesketh Henry as Susan Taylor, the Chief Executive Officer utter neutrality in a political environment senior associate of Financial Services Complaints Ltd, has at a senior level, which is exactly what is been appointed a trustee on the Dame needed in this role,” says Justice Minister John Morrison has joined the Litigation Malvina Major Foundation’s Board of Andrew Little. and Dispute Resolution team at Hesketh Trustees. The Foundation is a charitable Wellington barrister Jane Meares Henry as a senior associate. His particu- trust that helps talented young performing has been appointed Deputy Chair of the lar areas of expertise are a broad range artists achieve their potential by providing Commission. The Deputy Chair position has of construction disputes, tortious claims financial assistance, performance opportu- been vacant following the resignation of and claims relating to defective build- nities and professional guidance. Ms Taylor Kristy McDonald QC in April 2019. Admitted ings. John joins the team after 5 years at was admitted as a barrister and solicitor as a barrister and solicitor in October 1990, MinterEllisonRuddWatts. in February 1981. Ms Meares has been in practice as a barrister at Clifton Chambers since 2012 and Tyler-Rose Keatley joins was the Treasury solicitor from November Davidson Twaddle Isaac 2007 until March 2011. She is currently the Chair of an independent Crown entity, Contributing Tyler-Rose Keatley the Transport Accident Investigation information to has joined Hamilton Commission. On the Move firm Davidson Twaddle Isaac as a lawyer in Natalie Coates Brief summaries of information the commercial law appointed to Kāhui about promotions, changes in law team. Tyler-Rose was Legal partnership firms, recruitment and retirement admitted as a barrister are published without charge in On and solicitor in October Kāhui Legal has the Move (which is also available on 2018. appointed Natalie the Law Society website). Please Coates to the partner- send information as an email or MS Electoral Commission ship. Natalie is from Word document (no PDFs please) Chair and Deputy Ngāti Awa, Ngāti Hine, to [email protected]. appointed Ngāti Tūwharetoa, Submissions should be three or four Tūhourangi, Tūhoe and sentences without superlatives. We Former Cabinet Secretary and Privacy Te Whānau a Apanui. may edit them to conform to the Commissioner Marie Shroff has been She was admitted as a barrister and format used. A jpeg photo may be appointed as the next Chair of the Electoral solicitor in August 2008 and joined Kāhui included but please ensure you Commission. The Electoral Commission Legal that year. Before joining the firm, have permission for us to use it. is the agency responsible for all areas of Natalie was a lecturer at the University

healthy Mind healthy Body healthy Practice lawsociety.org.nz/practising-well

11 PROFILE · PEOPLE IN THE LAW September 2019 · LAWTALK 932

▴ Left to right: Kris Morrison (Partner at Parry Field), Mengeam Hok (In-house lawyer, Hagar Cambodia), Sotheary Chun (Legal and Protection Officer, Hagar Cambodia), Alex Summerlee (Associate at Parry Field), Makara Vong (Executive Director, Hagar Cambodia), Viv Zhang (Associate at Parry Field)

12 LAWTALK 932 · September 2019 PEOPLE IN THE LAW · PROFILE

PEOPLE IN THE LAW PROFILE Pushing the boundaries of corporate social responsibility

BY ALEX SUMMERLEE Adding value What started as a lunchtime seminar The question that many of us were left with in a Christchurch law firm was soon to was how we, as legal practitioners, could transform into an international partnership support the worthy work of Hagar – and with three lawyers travelling to Vietnam not just with the usual financial support, to advise an NGO dealing with victims of but by applying our training and expertise human trafficking and domestic violence. in a meaningful way. In short, how could It was an unlikely but very real experi- we add value? ence which for that firm has redefined the Seeking to add value is critical in all boundaries of where lawyers can add value. professional services. It defines the limits Let me explain. Hagar is a global charity of our professional utility, and where that established in 1994 in Cambodia. It has of another begins. And this was ultimately grown to have funding offices in Singapore, the vexing question for us as we pondered New Zealand, Australia, the United States whether a lawyer from New Zealand could and Hong Kong. Its operations take place contribute in any meaningful way to law-re- in Cambodia, Vietnam, Afghanistan, lated issues in a totally foreign jurisdiction. Singapore and Myanmar. We decided that the only way to find Hagar’s tagline is “the whole journey”. This out was to try. So, working with Hagar reflects the nature of work that they carry Vietnam, we identified some of the key out with their clients. Hagar’s clients are issues they were encountering. Two key victims of domestic violence, sexual abuse opportunities emerged: or human trafficking. Hagar is committed to • Evaluating the extent to which Hagar’s the restoration – insofar as far as is humanly existing legal support systems prepared possible – of people who have suffered their clients for interacting with the some of the worst treatment at the hands domestic legal system; and of other people. This involves a combination • Identifying opportunities to improve of psychological support as well as initiatives these systems. to economically empower individuals to There were some obvious concerns, ie, how control their future destinies. Another aspect could a group of foreigners better identify of Hagar’s work is supporting their clients opportunities for legal advocacy? through domestic legal processes. On the other hand, there was clear over- And so it was that during one after- lap with skills with which all lawyers are noon in March 2017, Hagar was giving a equipped: problem-solving, research and presentation on its work at Parry Field connecting with other spheres of expertise, Lawyers. It quickly became apparent that where required, to achieve an outcome for this was not the ordinary lunchtime semi- a client. nar, inconveniently distracting fee earners With that in mind, in November 2018, ▴ Left to right: Kris Morrison (Partner at Parry Field), Mengeam Hok (In-house lawyer, Hagar Cambodia), Sotheary Chun (Legal and Protection Officer, Hagar Cambodia), Alex Summerlee from more pressing matters, such as the three lawyers from Parry Field travelled (Associate at Parry Field), Makara Vong (Executive Director, Hagar Cambodia), Viv Zhang (Associate at Parry Field) Bright Line Test or AML/CFT. first to Phnom Penh in Cambodia. The trio

13 PROFILE · PEOPLE IN THE LAW September 2019 · LAWTALK 932

PEOPLE IN THE LAW PROFILE CONTINUED FROM PAGE 13 consisted of a civil litigator, a commercial lawyer and an immigration lawyer. Hagar’s La vie en rose Phnom Penh office was the first operational office the organisation opened. It is there that Hagar’s legal advocacy arm is most My experience of the developed and it served as an exemplar of how this sort of advocacy, done at its best, Paris International could make a real difference to some of the most vulnerable members of humanity. The Training Programme set-up was impressive, designed specifically to insulate victims – often children – from re-traumatisation that can occur BY SARAH-KATE when judicial proceedings commence. HOARE The main part of the secondment took place in Hanoi, Vietnam. Over the course of the next 10 days we interviewed Hagar staff, local lawyers, local and international As the world’s most popular tourist destination, there is NGOs supporting the victims of trafficking a lot to love about France. The country is beloved for its café and domestic violence, Vietnamese gov- culture and UNESCO-protected gastronomy, countless landmarks ernment officials, representatives from and cultural icons, the romance of Paris, the magic of the French UN-backed entities, as well as diplomats Riviera – the list goes on. from various overseas missions. While I could spend days reciting everything that I love about France, the French trait of disruptive and near-constant protest is And the result? less favourably regarded. The Third Republic was founded on the After conducting interviews with staff principles of Liberté, Égalité, Fraternité, which can be traced back from over 18 organisations connected with to the Revolution and have underpinned subsequent republics anti-human trafficking efforts together including the current Fifth Republic. These tenets are lived and with interviews from parents of traffick- breathed by the French and they are fiercely defended across ing victims, we were able to report back the country. The French attitude towards their political and legal to Hagar on the concrete ways it could system can sometimes stand in stark contrast to the “she’ll be provide better legal support for its victims. right” attitude we tend to adopt in New Zealand. All this makes for One of the most satisfying and peculiar an unforgettable learning environment for a young Kiwi solicitor. aspects of the secondment was the number of doors that were opened to us simply by A unique opportunity virtue of the fact that we were a group of In May and June this year I had the privilege to be nominated by New Zealand lawyers trying to conduct the New Zealand Law Society to participate in the Programme research into legal practices in Vietnam. du Stage International (International Training Programme) of the A second benefit of our trip was being Paris Bar. The eight-week programme is run twice a year, once in able to add value by defining what best English and once in French, and combines classroom learning, practice can look like, in relation to witness site visits and a hands-on internship in a Paris law firm. Through and victim protection. the programme, the Paris Bar hopes to encourage and build inter- Finally, there were a number of areas national networks within the legal profession while providing a which, despite such foreign legal systems, unique opportunity for non-French lawyers to discover practice bore striking resemblance to issues litigants in the French capital. face in New Zealand such as practical diffi- The first four weeks of the programme took place at theÉcole de culties with the enforcement of judgments, Formation du Barreau (the Paris Bar School) in a series of classes and conceptually similar regimes relating to covering aspects of the French legal system, European Union law, domestic violence (albeit with significantly and international law from a Paris perspective. This part of the different outcomes and practice). programme was spent as a group which provided an additional Kiwi lawyers can make a difference in opportunity to discuss and compare aspects of the legal systems some very different legal jurisdictions.▪ in participants’ home countries. Our cohort was also lucky enough to benefit from several group Alex Summerlee  alexsummerlee@ visits to buildings of legal significance in the capital. We were given parryfield.com is an Associate with Parry a tour of the Conseil d’État, France’s supreme court of adminis- Field Lawyers in Christchurch. trative justice, guided by a newly-appointed judge. We visited

14 LAWTALK 932 · September 2019 PEOPLE IN THE LAW · PROFILE

PEOPLE IN THE LAW PROFILE

the Tribunal de Commerce to learn about throw from the Arc de Triomphe. the new English-speaking International During my internship I was able to assist on matters involving Chamber of the Court, created in the wake insurance law, the French and EU laws of subrogation and ques- of the Brexit referendum and the ensuing tions of international jurisdiction, as well as attempting to describe uncertainty about the appeal of the United New Zealand’s accident compensation scheme to a Franco-Italian Kingdom as a seat of European Union and lawyer (which is no small feat). I also had the opportunity to attend international dispute resolution. a procedural hearing at the Tribunal de Commerce de Versailles My personal highlight was a tour of the and attend a conference at the Italian Embassy. Palais de Justice, much of which is closed Aside from a commute to work that never got old and behind- to the public. Now home to the Cour d’Ap- the-scenes access to important buildings and legal institutions pel de Paris (Paris Court of Appeal) and that are overflowing with history, I gained skills through the the Cour de Cassation (France’s highest Programme du Stage International that will improve my practice appeals court), the building of the Palais in New Zealand. As a young lawyer, I was able to make connec- de Justice began its life in the sixth cen- tions with other practitioners from all over the world, I found a tury as the residence of the King of France mentor in my supervising lawyer during my internship placement, and includes the courtroom where Marie I broadened my perspective and gained knowledge of new subject Antoinette was sentenced to death in 1793. areas, and I acquired that “je ne sais quoi” quality that only comes from unique experiences. Interning in Paris I spent two amazing months in Paris enjoying all that the city The final four weeks of the programme has to offer and I strongly encourage anyone with an interest in were spent interning in a Paris law firm. France, the European Union, international networking, or just a The Paris Bar organised a placement for memorable addition to their career, to apply for the Programme each participant depending on their du Stage International. ▪ individual experience and goals for the programme. I was placed in a mid-sized Sarah-Kate Hoare is a solicitor within the Public Service. All views Italian firm, whose Paris office is a stone’s expressed are her own.

15 NEW ZEALAND LAW SOCIETY September 2019 · LAWTALK 932

NEW ZEALAND LAW SOCIETY

Climate Change Response (Zero Carbon) Amendment Bill

no confusion between the effectson “’the effects of climate change’ has The Law Society has made a climate change (that is, the emis- been confined to the consequences submission to the Environment sions which cause climate change) of climate change. Emissions have Committee on the bill. The sub- and the effectsof climate change an effect on climate change while mission comments on drafting and (the outcomes of climate change). adaptation is a response to the technical matters, with the aim of It says the importance of the effects of climate change.” improving its clarity, certainty and distinction has been highlighted The Law Society recommends practical workability. in litigation under the Resource that the bill is carefully reviewed Noting that the clarity and preci- Management Act, where the words to ensure a clear distinction is sion of language used in the bill is of “the effects of climate change” in maintained between addressing critical importance, the submission s7(i) have been held not to com- the causes of climate change and says when reviewing the bill the prehend the matters which cause managing the consequences of committee should ensure there is climate change. climate change. ▪

Infringement offence created by bill raises issues

In a submission on the bill, the liability offence according to the The Law Society has pointed to Law Society says Legislation Design Guidelines’ criteria. The Guidelines Bill of Rights issues which stem from and Advisory Committee Guidelines state that absolute liability offences an infringement offence created 2018 identify two issues applying are almost never used. If legislation by the Smoke-free Environments to infringement offences that have is silent on mental element or (Prohibiting Smoking in Motor not been addressed. These are, what available defences the courts will Vehicles Carrying Children) defences, if any, should be available, generally infer a mental element, Amendment Bill. and on whom the burden of proof but that can create uncertainty. The bill creates an infringement should lie. The Law Society says consider- offence of smoking in a motor vehi- The infringement offence created ation should be given to whether cle, whether moving or stationary, by the bill does not provide for any defences should be available, that is on the road and has a child either a defence or an absence of and if so, they should be specified (under 18 years old) occupant. fault, so it is prima facie an absolute in the bill. ▪

Receipt of LawPoints and NZLS Weekly The Law Society’s weekly enewsletter LawPoints is automatically sent on Thursday evenings to all lawyers who currently hold a practising certificate, unless they unsubscribe. Because of the anti-spam settings of some servers, LawPoints may be blocked in some organisations. The Law Society has also had some problems recently with changes implemented by our US-based LawPoints distributor MailChimp which have removed some previous recipients from the distribution list. If you do not receive LawPoints or have stopped receiving it without unsubscribing, contact [email protected]. A public version of LawPoints, NZLS Weekly, is also available free of charge each week to non-lawyers. To sign up, visit www.lawsociety.org.nz/news-and-communications/email-updates/nzls-weekly.

16 LAWTALK 932 · September 2019 NEW ZEALAND LAW SOCIETY

New Zealand New Zealand represented Law Society 150 at POLA years events

Law Society President Tiana Epati represented Law Society branches are holding or have held a New Zealand at the 30th annual Presidents of Law number of events and court sittings to recognise 150 Associations in Asia Conference. This was held in years. Dates for some are still to be confirmed. Kunming, China from 31 July to 2 August. POLA is a non-political organisation which provides a forum for 16 August: Gisborne branch dinner, Gisborne. the leaders of lawyer and bar associations across the Asia-Pacific region.▪ 24 August: Nelson event, Nelson.

27 August: Nelson branch lawyers’ photo, Nelson.

4 September: Wellington special High Court sitting. Photo of those in attendance, Wellington. Manawatu Confidential electoral branch gathering, Palmerston North. roll process outlined 5 September: Canterbury-Westland special High Court sitting, Christchurch. in Practice Briefing 6 September: Wellington branch dinner (to be confirmed). With the 2019 local authority elections approach- ing, the Law Society has updated its Practice Briefing 4 October: Waikato Bay of Plenty branch dinner, on the confidential unpublished electoral roll. Hamilton. Section 82 of the Electoral Act 1993 requires anyone who is qualified to be registered as an elector to register. 16 October: Waikato Bay of Plenty special High Court Details of electors are compiled to create rolls for each sitting, Hamilton followed by Past Presidents/Vice electoral district. Section 106 requires the electoral rolls Presidents lunch together with local judiciary and to show the names, residences and occupations of all branch council. enrolled electors and, under section 110, copies of the rolls must be kept for inspection at the Office of the 24 October: Otago branch special High Court sitting. Registrar of Electors. Ethel Benjamin Address. Branch dinner, Dunedin. Section 115 allows the Electoral Commission to direct that the name and particulars of a person not be pub- 26 October: Auckland branch special High Court sitting, lished or available for inspection “where the Electoral Auckland. Commission is satisfied, on the application of any person, that the publication of that person’s name would be 1 November: Southland branch special High Court prejudicial to the personal safety of that person or his sitting. Branch dinner, Invercargill. or her family”. Details of such a person are still recorded, but on To be announced: Taranaki branch special High Court what the Commission refers to as the “confidential sitting, New Plymouth. Whanganui branch special High unpublished roll”. The unpublished roll is confidential Court sitting, Whanganui. and it can only be viewed by the Registrar of Electors for the electorate the person is enrolled in. The Practice Briefing provides information on how applications can be made, how long names stay on the roll and how someone on the roll can vote. ▪

17 A Changing Profession

NEW ZEALAND LAW SOCIETY 1869-2019

BY GEOFF ADLAM

18 LAWTALK 932 · September 2019 NEW ZEALAND LAW SOCIETY

◂ Portrait of Sir James Prendergast, ca 1890–1900 Ref: 1/2-031752-F. Alexander Turnbull Library, Wellington, New Zealand

On 20 November the New Zealand Law Society Act 1869 Amendment Act 1877 makes it lawful for Law Society members to form a district law society in any Supreme Court district and to elect a Council.

The New Zealand Jurist says the number of legal practitioners in New Zealand is 225.

1869 1870 1875 1876 1877

On 19 February by warrant James Prendergast is the Governor appoints a appointed Chief Justice. As 12-man Council with James far as can be determined, Prendergast, Attorney- no successor as President General, as President. was appointed.

On 3 September Parliament passes the New Zealand Law Society’s Act 1869, for all barristers and solicitors of the Supreme Court lawfully practising within the Colony of New Zealand to “for ever hereafter be and be called one body politic and corporate in deed and in law by the name of style of ‘The New Zealand Law Society’.”

The New Zealand Law Society is the second lawyers’ organisation to come into exist- ▸ New Zealand Law ence. On 16 October 1868 the Canterbury Society’s Act 1869 District Law Society was established at a New Zealand Acts As meeting in Christchurch. Enacted, NZLII

19 NEW ZEALAND LAW SOCIETY September 2019 · LAWTALK 932

◂ Sir Āpirana Ngata, photographed in 1910 by Herman John Schmidt Ref: 1/1-001566-G. Alexander Turnbull Library, Wellington, New Zealand

On 18 February the Hawke’s Bay District Law Society is founded.

On 12 August the Nelson District Law Society is founded.

1878 1879 1882 1885 1885

On 6 June the Marlborough ▾ New court room interior being District Law Society is constructed, Court of Appeal, founded. Wellington. Evening Post photographer, 15 Jan 1960 Ref: EP/1960/0162-F. Alexander Turnbull Library, Wellington, New Zealand On 31 January Westland District Law Society is founded.

On 6 March the Taranaki District Law Society is founded.

On 7 June the Law Society of the District of Otago and Southland is founded.

On 26 August the Wellington District Law Society is founded.

On 11 November the District Law Societies Act 1878 deems the 1877 amendment “ineffective” and establishes firm rules for formation of District Law Societies. Any District member “aggrieved by the decision” of the District, has a right of appeal to the Council of the New Zealand Law Society. Amendment Acts in 1879 and 1882 are introduced.

On 21 December the Southland District Law Society is founded.

20 LAWTALK 932 · September 2019 NEW ZEALAND LAW SOCIETY

On 26 March Āpirana Turupa Ngata (later Sir Apirana) is the first Māori to be admitted as a barrister and solicitor. In February the Gisborne District Law On 3 May Walter Scott Reid is unanimously elected the Society is founded. first President of the New Zealand Law Society. Solicitor- General for a record 25 years from 1875 to 1900, Mr Reid is On 7 June 10 King’s Counsel are appointed: the only in-house lawyer to have held the role. the first in New Zealand. 112 years later, 317 members of the profession have been On 10 May Ethel Benjamin becomes the first European honoured with the rank. woman to be admitted as a barrister and solicitor. She is followed nine years later by Matilda Monteith and Eliza Melville (both admitted 1906), Geraldine Hemus (1907), Annie Rees (1910), Hariette Vine (1915) and Lyra Taylor (1918).

Sir Francis Henry Dillon Bell KC becomes President in January and remains so until 1918 – the longest tenure of any President. His equally long CV includes terms as Mayor of Wellington, a founder of Bell Gully, one of On 11 September The Female Law the first King’s Counsel, Cabinet Minister, Practitioners Act 1896 allows women aged acting Prime Minister four times, and Prime 21 and over to be enrolled as a barrister Minister for 16 days in 1925. or solicitor.

1896 1897 1901 1907

▸ Dunedin Court opening 1902 Otago Witness, 2 July 1902. Photo courtesy of the Otago Daily Times

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◂ Wellington District Lieutenant Herman Baddeley, 23, was killed Law Society building, on 25 April 1915 during the first day of the Wellington. Duncan Gallipoli invasion. He was the first of 54 Winder, ca 1962–1965 lawyers and a similar number of law clerks Ref: DW-1299-F. who died while serving during World War Alexander Turnbull I. Quartermaster Sergeant Benson Wyman, Library, Wellington, 36, and Private Percy Henderson, 24, both New Zealand. died of influenza in New Zealand on 15 November 1918, the last of the lawyer soldiers who died because of the war.

On 4 August in the great 1908 Statutes Consolidation, the Law Practitioners Act 1908 brings together 12 previous Acts which regulate the legal profession. District Law Societies are empowered to issue practising certificates and to institute prosecutions and other proceedings for breach of any statute or rules relating to the practice of law in the district, with right of appeal to the Council of the New Zealand Law Society. The New Zealand On 23 October the Law Society’s Council is to consist of representatives of each of the Districts Wanganui District Law and the Council is to elect the President and Vice-President. Society is founded.

On 8 December the Hamilton District Law Society is founded.

1908 1913 1914-1918

22 LAWTALK 932 · September 2019 NEW ZEALAND LAW SOCIETY

◂ Portrait of Sir Charles Perrin Skerrett. Hardie Shaw Studios of Wellington, ca 1900–1910 Ref: PAColl-6418-1-12. Alexander Turnbull Library, Wellington, New Zealand.

A Royal Commission on University Education issues a report which is Charles Perrin Skerrett KC very critical of the quality becomes President. He of legal education and served until 1 February 1926 says the phrase “learned when he was appointed counsel” is in danger of Chief Justice and knighted. becoming a sarcasm. His time as Chief Justice was short and he died at sea en route to England on 13 February 1929.

1918 1919 1923 1924 1925

Harold Herbert Carr is ◂ Left: Walter Scott appointed to the bench Reid of the Native (later Māori) Henry Ah Kew becomes Published in Portrait Land Court, the first Māori the first person of Chinese of a Profession: The to be appointed a judicial ethnicity to obtain an LLB centennial book of officer. (from Auckland) and to be the New Zealand Law admitted as a barrister and Society, 1969. Original solicitor. source unidentified. New Zealand has 1,102 ◂ Right: Ethel Benjamin practising lawyers (1,096 ca 1896 men and six women as Hocken Library, Ethel Benjamin has moved University of Otago. to England). That gives one lawyer for every 1,102 people.

▸ View of Victoria Street, Hamilton. William A Price, ca 1905–1915 Ref: 1/2-001326-G. Alexander Turnbull Library, Wellington, New Zealand.

23 NEW ZEALAND LAW SOCIETY September 2019 · LAWTALK 932

▸ Group photograph of members of the Wellington legal profession. Muir and Stewart, 1903 Ref: PA7-49-33. Alexander Turnbull Library, Wellington, New Zealand.

Alexander Gray KC becomes President and remains so until his death on 28 April 1933. He was knighted in the 1933 New Year’s Honours. The first of what becomes a long-running series of triennial Law Society conferences is held in Wellington. Dwindling interest and the development of other forms of communication saw the last conference held in Christchurch in 2001.

1926 1928 1929 1930 1932

The Rules Committee is established by statute to take over rule-making for the superior courts.

On 25 October the Law Practitioners Amendment Act 1930 requires the University of New Zealand to hereafter conduct the examination of candidates for admission as barristers or solicitors. The New Zealand University Amendment Act 1930 establishes the Council of Legal Education to enable the University to do so.

There are 1,779 practising lawyers – one for every 825 people.

On 7 November the Law Practitioners Amendment (Solicitors’ Fidelity Guarantee Fund) Act 1929 makes the first legislative provision for a Fidelity Fund, administered On 1 January most of the Law Practitioners by the Law Society’s Council. Act 1931 comes into force after receiving the Royal assent on 11 November 1931. The New Zealand Law Society is established ◂ Charles Herbert Treadwell, ca 1934 (but declared to be the same Society as the Ref: PAColl-8972-3-05. Alexander one constituted under the 1908 Act) and Turnbull Library, Wellington, New deemed to consist of all practitioners who Zealand. are members of any District Law Society.

24 NEW ZEALAND LAW SOCIETY

◂ Corner of Stuart street and Castle street showing the Dunedin Court

On 18 August the New Zealand Council of Law Reporting Act 1938 comes into force, formally incorporating the body established in 1883 and responsible for publication of the New Zealand Law Reports.

Humphrey O’Leary KC (later Sir Humphrey) becomes President and In April Olive Virginia remains so until 1946 when he is appointed Chief Justice. “As President Malienafau Nelson he enjoyed tremendous popularity and goodwill all over the country. In becomes the first Samoan Council he was an excellent chairman, probably at his best with broad to graduate LLB. In August issues for he was not a man to be bothered with trivia,” Sir Richard Wild she is admitted as a bar- wrote in Portrait of a Profession. rister and solicitor, the first Samoan and Pacific On 26 October section 33 of the Law Practitioners Amendment Act 1935 woman to be admitted. prevents anyone from practising as a solicitor on their own account without at least three years’ legal experience.

1932 1933 1935 1936 1938

Charles Treadwell KC becomes President at the age of 71 – the oldest President. He retired after under two years, having brought to the office “an aura of immense dignity,” says Portrait of a Profession.

The Law Society’s Dis- ciplinary Committee is established.

▸ Olive Nelson Ref: Williams, N. (2009). A View From the back, Spaces between times: Equality of educational opportunity and Pacific students at a University. (Doctoral thesis).

25 NEW ZEALAND LAW SOCIETY September 2019 · LAWTALK 932

◂ Humphrey Francis O'Leary, his wife and son. 17 October 1932 Ref: PAColl-6301-21. Alexander Turnbull Library, Wellington, New Zealand.

1939 1939 – 1945 1946 1949

A Law Society plaque lists 913 principals and law clerks who served with the Forces during World War II. Of these, 21 died while serving. New Zealand’s current longest-practising lawyer is admitted (we’re preserving their anonymity). There are 1,784 practising lawyers – one for every 1,039 people and up 1.7% on a decade earlier. On 7 October the Legal Aid Act 1939 receives the Royal assent. It allows the making of regulations to authorise the Law Society to establish committees and panels of legal practitioners for the assistance of poor Philip Cooke KC, MC (later Sir Philip) persons, “and for this purpose to require becomes President and serves until his practitioners to serve on those committees appointment to the bench in 1950. In and panels and to undertake the advis- the examination of proposed post-war ing of poor persons and the conduct of legislation during his time as President, litigation on behalf of poor persons; and he rendered very valuable unpaid service empowering the New Zealand Law Society which the Government warmly appreci- to delegate any of its functions under the ated, says Sir Richard Wild in Portrait of regulations to any District Law Society.” a Profession.

There are 1,754 practising lawyers, a decrease of 1.4% on a decade earlier.

26 NEW ZEALAND LAW SOCIETY

◂ Major General W Cunningham. Evening Post, 14 March 1951 Ref: 114/268/08-G. Alexander Turnbull Library, Wellington, New Zealand.

On 1 January the Law Practitioners Act 1955 comes into force after receiving the Royal assent on 27 October 1954.

1950 1954 1956

Timothy Cleary (later Sir Timothy) becomes President. Revised law practitioners’ legislation and establishment of a permanent Court of Appeal were key focal points during his term. He left the presidency to go straight to the new Court of Appeal in 1958 (after declining judicial appointment for a decade), one of just three judges ever appointed directly to that court.

Lalbhai Patel is the first person of Indian ethnicity to be admitted as a barrister and solicitor.

William Cunningham becomes President at the age of 67. He attained the rank of Major-General during the War, was Wellington Crown Prosecutor for many years and became the first President to represent New Zealand at a Law Conference overseas – in Australia in 1951. He joined Sir Alexander Grey in being knighted on his retirement from the role.

▸ Timothy Patrick Cleary. S P Andrew Ltd, ca 1955 Ref: 1/4-020261-F. Alexander Turnbull Library, Wellington, New Zealand.

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On 23 October the three members of the newly established Court of Appeal are appointed: Kenneth Gresson as President, and Alfred North and Timothy Cleary as Judges of Appeal. Harold Barrowclough CJ is ex officio head of the court. The establishment of the court was widely welcomed with discussions at the Law Society’s 1954 Conference providing impetus.

On 17 February a permanent Court of Appeal sits for the first time in the Wellington Supreme Court building. It secured its own premises in February 1960.

Allan Buxton becomes the 10th President. He died aged 64 while serving in the role. During his term the Council dealt with some difficult questions of professional privilege, began a study into retirement schemes, and entertained a further group ▴ Chief Justice, Sir Harold Barrowclough (left) and of overseas guests. In the short space of two Registrar, G R Holder being escorted by Constable years, made none the easier by a change W J Firmin to the new Court of Appeal, Ballance in secretarial staff, Mr Buxton served the Street, Wellington. Evening Post, 5 Feb 1960 Society well, says Sir Richard Wild in Ref: EP/1960/0507-F. Alexander Turnbull Library, Portrait of a Profession. Wellington, New Zealand.

1957 1958 1959 1962

▾ Right Honorable Sir Kenneth Gresson. Crown Studios of Wellington, 1964 On 30 March the Manawatu District Law Society is founded. Ref: 1/2-194721-F. Alexander Turnbull Library, On 1 August work begins on construction of a national Wellington, New Zealand. office for the Law Society at 26 Waring Taylor Street. Completed in 1964 at a cost of £250,812 it was funded by a £5 increase in practising fees for four years. Denis McGrath was the key player in overcoming opposition and ensuring delivery of the building.

Edward Denis (later Sir Denis) Blundell becomes President. His tenure sees completion of the Law Society’s national office building. He was knighted in 1967 in recognition of his services to the legal profession. Sir Denis was the first resident New Zealander to be appointed Governor- General, in 1972.

Margaret Smith is admitted as a barrister and solicitor, the 46th woman. New Zealand has 2,113 practising lawyers – one for every 1,096 people.

David Perry becomes President. He instigated the move to obtain a permanent home for the Law Society, enhanced the status of the triennial conference and oversaw Law Society decisions to appoint an audit inspector of all trust accounts and to adopt a general policy under which public statements would be made on matters of controversy where legal principle was involved.

28 LAWTALK 932 · September 2019 NEW ZEALAND LAW SOCIETY

◂ New Zealand Law Society building, Wellington. Duncan Winder, ca 1962–1965 Ref: DW-1289-F. Alexander Turnbull Library, Wellington, New Zealand.

Stanley Tong becomes President. He is the first non-Wellingtonian to hold the office. He travels to many law conferences overseas and establishes enduring relationships with law organisations and the judiciary in a number of countries.

Georgina te Heuheu (later Dame Georgina) is the first Māori woman to be admitted as a barrister and solicitor.

1968 1969 1970 1971 1972

Denis McGrath becomes President. During his term On 1 April the Legal Aid Act 1969 comes into force, removing responsibility for legal aid he oversees assertion of from the Law Society and establishing a Legal Aid Board. control over contributory In June Ken Mason is sworn in as a Stipendiary Magistrate (and later a District Court mortgage management Judge), becoming the first Māori to be so appointed. He retired in 1988. by means of the nominee company system and In September the Ponsonby Citizens Advice Bureau opens. NZ’s first CAB, it offers free the centenary of the Law legal advice thanks to waivers given by the Auckland District Law Society. Society in 1969.

The Law Society centenary is marked by commissioning of a Coat of Arms, the issue of a set of three stamps on 8 April, an international conference at Rotorua from 8-11 April, publication of a history, Portrait of a Profession, edited by Robin Cooke (later Lord Cooke of Thorndon), a Centennial Scholarship and a special tie.

▸ Members of the Court of Appeal sitting in the new courtroom, from left, Justice North, Justice K M Gresson, Justice Cleary and the Registrar G R Holder, (front), Ballance Street, Wellington. Evening Post, 8 Feb 1960 Ref: EP/1960/0508-F. Alexander Turnbull Library, Wellington, New Zealand.

29 NEW ZEALAND LAW SOCIETY September 2019 · LAWTALK 932

In September Augusta Wallace (later Dame Augusta) is appointed a Stipendiary Magistrate (later a District Court Judge), the first woman to be appointed to the bench.

The Law Society runs 19 one-day seminars around New Zealand to begin its role as a provider of continuing legal education. Just under 1,000 lawyers attend. Three years later, in 1977, 35 seminars are provided with 2,400 registrants.

The first year that records are available by gender, perhaps recognising the increasing number and influence of women in the profession. Of New Zealand’s 3,512 lawyers, 168 (4.6%) are women.

Laurence Southwick QC becomes President. His advocacy for continuing legal education saw appointment of the ▴ The second issue of LawTalk, first Law Society education director, and he was a fervent published 26 July 1974 proponent for using interest on trust accounts for funding of areas such as education, says Alan Ritchie in Law Stories.

The Honourable Rex Mason Prize for In June the Grey Lynn Neighbourhood Law Office opens Excellence in Legal Writing is established in Auckland, the first community law centre under a Law to commemorate former Attorney-General Society pilot. John Wilson is its first full-time lawyer and and Minister of Justice Henry Greathead initital funding comes from the Law Society. Rex Mason (1885-1975). It is New Zealand’s oldest legal writing prize.

1973 1974 1975 1977

In February the first issue of “The New Zealand Law Society’s News Sheet” is published with an asterisk where the title should be. Lawyers are asked to suggest a name and the fourth issue is called LawTalk.

On 29 March Guy Smith becomes President but dies of a heart attack in Germany in July while on a world tour with his wife. “I suppose I would like to create the atmosphere in which all those who practise law can feel that they’re giving their best, and that they’ve got all the opportunities open to them to give a measure of public service,” Mr Smith said in an interview published in the second, April, issue of LawTalk. “We have to make the profession attractive to young men and women.”

On 1 April the Accident Compensation Act 1972 comes into force, radically reducing or changing personal injury practice for many lawyers.

In August Lester Castle becomes President. A 1987 obitu- ary in LawTalk says as President his diplomacy and skill and fundamental commonsense in dealing with many difficult situations shone through. CLE seminars through the Law Society began during his term. He was appointed ▴ Henry Greathead Rex Mason. Thorpe Studio of an Ombudsman in 1977 and Chief Ombudsman in 1984. Pukekohe, ca 1930s Ref: PAColl-4415-09. Alexander Turnbull Library, Wellington, New Zealand.

30 ▴ Corner of Lambton Quay and Ballance Street, Wellington, showing the Magistrates Court Ref: 1/1-015601-F. Alexander Turnbull Library, Wellington, New Zealand.

1979 1980 1981

On 9 February Mary Finau Tuilotolava is the first Tongan woman admitted as a barrister and solicitor.

Thomas Eichelbaum QC (later Sir Thomas) becomes President. He was an important contributor to the reforms in the 1982 Act. A major interest during his term as President was the maintenance of professional competence and a credible public image in a time when the “traditional aura and mystique of professions” no longer sufficed. Appointed to the High Court in October 1982 he became Chief Justice in 1989, the first already-serving judge to be appointed.

Major changes are made to the court system, with Magistrates’ Courts renamed District Courts, the Supreme Court the High Court, and establishment of specialist Family Courts. The changes have been driven by recommendations from the 1978 Beattie Royal Commmission. ▴ Dame Augusta In April Avinash Ganesh Deobhakta is sworn in as the first District Court Wallace Judge of Indian ethnicity.

In September Silvia Cartwright (later Dame Silvia) is the second woman to be appointed a District Court Judge.

31 NEW ZEALAND LAW SOCIETY September 2019 · LAWTALK 932

The growing number of community law centres form the Coalition of Community Law Centres Aotearoa, to act as an umbrella body. This coincides with the first definite decision by the then Department of Justice to provide funding for all CLCs.

A group of barristers forms the Criminal Bar Association, to further and promote the practice of criminal law.

In November the Law Society abolishes the Scale of Professional Charges which fixed prices for conveyancing. The profession has to focus on providing a “good, efficient and well conducted conveyancing service at a reasonable cost,” President Bruce Slane says.

Peter Clapshaw becomes the 20th President. His “fair and gentlemanly approach” in the face of abolition of the scale, lessening of restrictions on advertising, the dawn On 1 April the Law Practitioners Act 1982 of Rogernomics and major institutional reform “made comes into force after receiving the Royal him, in many ways, the ideal president at a time when assent on 4 December 1982. The Act contin- the profession was rather catching its breath,” says Alan ues the New Zealand Law Society, which Ritchie in Law Stories. it says “shall consist of all practitioners Mervyn Rogers retires as Law Society Secretary after who for the time being are members of 14 years in the role. He is succeeded by Alan Ritchie, as any District Law Society and hold current Executive Director practising certificates”.

1982 1983 1984 1985

The New Zealand Law Foundation is established as an independent trust. It begins its funding operations in 1992 with grants for legal research, public education on legal matters and legal training.

Bruce Slane (later Sir Bruce) becomes President. An outstanding communicator, he wrote a regular column in LawTalk, was a strong advocate for the increasing number of women entering the profession, pushed for abolition of the scale of charges and worked hard to make the Law Society a more public advocate in law reform. He was appointed the first Privacy Commissioner in 1993. ▴ Representatives of the Whanganui River tribes and their solicitor D G B Morison. Taken at the Dominion Museum in 1945, by an unidentified photographer Ref: PAColl-2427-1. Alexander Turnbull Library, Wellington, New Zealand.

32 LAWTALK 932 · September 2019 NEW ZEALAND LAW SOCIETY

On 1 February the Law Commission Act 1985 (assented to on 9 Decem- ber 1985) comes into force, establishing the Law Commission which has the role of reviewing, reforming and developing New Zealand law.

▴ From left to right: Dame Sian Elias, Dame Judith Potter and Dame Lowell Goddard. Sian Elias and Lowell Goddard were the first women QCs and Judith Potter was the first woman President of a District Law Society (and later NZLS)

1986 1987

On 1 March the Fair Trading Act 1986 comes into force, bringing to an end lengthy discussions, committee investigations and arguments over the right of lawyers to advertise.

On 29 May Margaret Lee is sworn in as the first District Court Judge of Chinese ethnicity.

The Corporate Lawyers Association of New Zealand (CLANZ) is formed with Peter Lorrigan as President. Later renamed ILANZ, it became the first section of the New Zealand Law Society in 1989.

In August Anne Gambrill is appointed a Master of the High Court (now Associate Judge). She is the first woman appointed to the senior court bench. She is the seventh woman appointed to the judiciary.

The Auckland District Law Society establishes the LINX legal information database and is later joined by the Canterbury and Wellington District Law Societies in maintaining and developing the database.

Major research commissioned by the Law Society among the public, includes a question about their preference between male and female lawyers (who comprise 15% of the profession). 67% have no preference, 21% state a preference for a male lawyer, and 9% a preference for a ▴ Dame Silvia Cartwright female lawyer.

33 NEW ZEALAND LAW SOCIETY September 2019 · LAWTALK 932

On 4 March Sian Elias and Lowell Goddard are the first women to be appointed Queen’s Counsel.

Te Hunga Rōia Māori o Aotearoa The Māori Law Society is formally established in John Chadwick’s Rotorua garage.

Graham Cowley from Hawke’s Bay becomes President, the first from a region outside the main centres. “He spearheaded reform of the Law Society’s own rules, its ethical rules and solicitors company nominee rules. His conciliatory approach helped to smooth relations between the Law Society and the [recent NZ Bar Association]," says Alan Ritchie in Law Stories.

Judith Potter (later Dame Judith) is elected President of the Auckland District Law Society, the first woman to hold that role for any of the district law societies.

In July the Association of Independent Counsel Inc is incorporated, becoming the New Zealand Bar Association after resolution of differences with the Law Society. Ted Thomas (later Sir Edward) is elected inaugural President on 8 June 1989.

▴ Dame Judith Potter

1988 1989 1991 1992

On 1 February the Legal Services Act 1991 comes into force, giving the first statutory recognition of community law On 1 February substantial parts of the Bay of Plenty centres. and Thames/Coromandel area are transferred from the On 13 April it is revealed that two partners in the Upper Auckland District Law Society to the Hamilton District Hutt firm Renshaw Edwards are responsible for the largest Law Society. The name Waikato Bay of Plenty District Law fraud by a law firm. Pat Renshaw (theft of $6.4 million of Society was adopted in 1993. client money) and Keith Edwards (theft of $3.5 million of On 1 November the Children, Young Persons, and Their client money) both receive sentences of imprisonment. Families Act 1989 commences, establishing the Youth Court The thefts along with others leave the lawyers’ fidelity and other major family law reform. fund facing claims of over $30 million, compared with $6.7 million in total for the previous six years. The money was In December the Arbitrators’ and Mediators’ Institute of raised by a special levy on the country’s 2,700 partners or New Zealand is established to replace the NZ Branch of the lawyers in sole practice, with each having to pay $10,000 Chartered Institute of Arbitrators. AMINZ is a non-profit over five years. body focused on maintaining high standards for all aspects of dispute resolution,

Judith Potter (later Dame Judith) becomes the first woman President of the Law Society. President during the Renshaw Edwards affair (see 1992), she received much praise for her poise, accessibility and management of the issues, but also endured some abuse from both the profession and the public. She publicly stated that the deregulated economy meant there was no longer a need for lawyers to be involved in lending money. She was closely involved in establishment of the NZLS Women’s Consultative Group, instigation of the Law Society Board and reform of law practioner legislation. Dame Judith was appointed to the High Court in March 1997.

34 LAWTALK 932 · September 2019

Austin Forbes QC becomes President, the first from the South Island. He has the task of continuing to repair the damaged image of the profession after Renshaw Edwards and becomes a very popular and respected public figure. His speech to the 1996 triennial conference in Dunedin was entitled “Profession in Crisis” and widely televised and reported. Law Society-commissioned research among both public and the profession in 1997 shows the profession still enjoys a high level of respect and trust.

In July Judge Silvia ▴ Sir Edward Durie Cartwright becomes the first woman appointed as a Justice of the High Court. In February it is revealed that the Law Society has taken out a $7.3 million loan to comply with a High Court ruling that it must pay Renshaw Edwards claims immediately. In At 1 November it is revealed November the Law Society sues Renshaw Edwards’ auditors Clark Fitzgerald for $24.6 that 266 (52.1%) of the 511 million. The Society of Accountants no longer has a fidelity fund after paying out $12 lawyers admitted that year million for an Auckland accountant’s actions. In June 1996 the Law Society settles the were women – the first claim against Clark Fitzgerald out of court. Details are kept confidential. time more women than men have been admitted. In November Lowell Goddard (later Dame Lowell) is appointed to the High Court – the first woman of Māori ethnicity to be so appointed. Sian Elias (later Dame Sian) is also appointed to the High Court.

1993 1994 1995 1997 1998

Ian Haynes becomes President. Reform of the legislation regulating the practice of law is a key element of his presidency. He travelled widely around the country to present a model Law Practitioners Act and “gave the process and the profession a real chance in the face of menacing political attention,” says Alan Ritchie in Law Stories.

The Family Law Section of the Law Society is established to represent the interests of family law practitioners. In 2019 it has just over 1,000 members.

A Law Society survey of the public shows that 84% would prefer to resolve their disputes out of court.

In October Edward (later Sir Edward) Durie is sworn in as the first man of Māori ethnicity to be appointed to the High Court.

◂ Dame Lowell Goddard

35 NEW ZEALAND LAW SOCIETY September 2019 · LAWTALK 932

◂ Christine Grice

On 22 February A’e’au Semikueiva Epati is sworn in as a District Court Judge at Manukau District Court, the first judge to be appointed of Samoan and Pacific ethnicity.

On 24 September Ida Malosi is sworn in as a Family Court Judge, the first Samoan and Pacific Island woman. In 2013 she becomes the first woman judge to preside in the Supreme Court of Samoa.

On 4 November Ajit Swaran Singh is sworn in as a District Court Judge. He is the first Fiji-born Indian to be appointed to the District Court bench.

1999 2000 2001 2002

On 17 May Justice Sian Elias is appointed Chief Justice: the first woman The Pacific Lawyers Association is established. A key objective is promoting appointed to the role. fellowship, mutual support and continuing legal education for Pacific lawyers. New Zealand has 8,151 practising lawyers – one On 2 October Denise Clark is sworn in as a District Court Judge on for every 470 people. On Tematekapua Marae in Rotorua. She is the first Māori woman appointed the bench are seven Court as a District Court Judge and it is also the first time a judge has been of Appeal Judges, 32 High admitted to the bench in a ceremony held on a marae. Court Judges, five Masters and 118 District Court Judges.

Christine Grice becomes President and is the second woman in the role. She is the youngest person to have ever been elected President. It is also the first election where all three candidates are women. The impetus for reform of the practice of law continues during her presidency. In the 2004 New Year's Honours she is appointed a Companion of the New Zealand Order of Merit for services to the legal profession.

The proportion of women admitted reaches 60% – 440 women and 288 men.

In April the Property Law Section of the Law Society is established to represent the interests of property law practitioners. In 2019 it has over 1,500 members.

36 NEW ZEALAND LAW SOCIETY

On 20 March the Lawyers and Conveyancers Act 2006 receives the Royal assent after its third reading on 14 March. It brings about the most far-reaching reform in regulation of the legal profession and has the purpose of protecting the consumers of legal services, maintaining public confidence in the legal profession and recognising the status of the legal profession. This becomes the mandate of the New Zealand Law Society which is to issue practising certificates and regulate the legal profession. District Law Societies are dissolved six months after commencement of the Act. After much debate, all but one of the 14 district law societies vote to combine their assets with the New Zealand Law Society to form “one society”. They become branches.

John Marshall QC is elected President. During his presidency he tirelessly works to explain the “one society” model and also ▴ Mr Tere Mataio, first Cook Islander to qualify as to respond to negative comment resulting a solicitor, with Professor C C Aikman and Mr from the Bazley report on legal aid. He is Mathison. Evening Post, 3 Jun 1960 also a strong advocate for increased pro Ref: EP/1960/2023-F. Alexander Turnbull Library, bono and later instigates the successful Wellington, New Zealand. Practising Well initiative.

2003 2004 2006 2007

In May a pilot Public Defence Service begins in Auckland. The success of the pilot leads to the roll-out of the service in major population centres, ending with Hawke’s Bay in 2012.

On 1 July the Supreme Court sits for the first time.

Chris Darlow is elected President. He is closely involved over his whole presidency in work on the proposals for major reform of the regulation of legal services and creation of a new role of registered conveyancer. In 2008 he is made a Member of the New Zealand Order of Merit for services to the law.

The Landonline electronic titles system is completed at a cost of $141 million, introducing a new era of digital land titles registration. In October 2018 Cabinet accepts a $128 million business case to progressively rebuild the system over five years.

On 24 June the Lawyers and Conveyancers Bill is introduced by Mark Burton. It receives its first reading on 29 July, is reported from the Justice and Electoral Committee on 27 July 2004 and receives a second reading on 29 March ▴ New Zealand Law Society Council in 2010, 2005. President Jonathan Temm

37 NEW ZEALAND LAW SOCIETY September 2019 · LAWTALK 932

Jonathan Temm becomes President. Just the second President from outside the main centres, he is active in communicating the Law Society’s viewpoint on major changes to legal aid, the One Society Model, development of the Law Society’s regulatory expertise and a wide range of law reform developments, including the Criminal Procedure Act 2011 and major family law changes.

Former President Christine Grice becomes Executive Director, succeeding Alan Ritchie.

On 4 September the first of two devastating Canterbury earthquakes has a severe impact on the region’s legal profession. Led by the Canterbury- Westland branch the Law Society co-ordinates many offers of assistance and support from lawyers around the country.

On 1 July most of the Legal Services Act 2011 comes into force, introducing major changes to legal aid, including fixed fees for lawyers.

On 1 October completion of the Law Society’s Stepping Up programme becomes mandatory for barristers ▴ Kathryn Beck sole.

2008 2009 2010 2011 2012

On 1 August the Lawyers ▾ Admission of Te Wehi Wright, 2018 and Conveyancers Act 2006 comes into effect.

On 1 October, seven Senior Counsel are appointed – the first and last time the title has been confered. All subsequently took the title Queen’s Counsel.

On 1 February, all but one of the former districts become branches of the New Zealand Law Society. A new Auckland branch is established and Canterbury and Westland amalgamate.

In June John Marshall launches Practising Well, the Law Society’s health and wellbeing initiative.

On 27 November Dame Margaret Bazley’s report “Transforming the Legal Aid System” is released. Among her findings, she says over 200 corrupt lawyers are rorting taxpayer-funded legal aid.

38 LAWTALK 932 · September 2019 NEW ZEALAND LAW SOCIETY

Chris Moore becomes President. His presidency includes securing final agreement on changes to the intervention rule for barristers, a busy programme addressing and encouraging law students and young lawyers, a focus on advancement of women in the profession which includes chairing the Women’s Advisory Panel and advocacy of access to justice. On 5 December the Law Society and NZ Bar Association launch the Gender Equitable On 16 May 26 barristers are appointed Queen’s Counsel – the most ever Engagement and Instruction Policy, with in an appointment round, and the first formal round of appointments the key objective of policy adopters aiming since 2008. to increase the number of women leading On 1 October the Law Society introduces a requirement for lawyers to court proceedings. complete at least 10 hours a year of continuing professional development. Executive Director Christine Grice is The innovative scheme is self-directed. appointed to the High Court bench. Mary Ollivier becomes Acting Executive Director.

On 1 July changes to the On 1 September Justice Intervention Rule come Mark Cooper is appointed into effect with barris- a permanent judge of the ters able to apply to Law Court of Appeal, the first Society for approval to person of Māori ancestry to accept instructions directly be appointed to the Court. from clients without an instructing solicitor.

2013 2014 2015 2016 2017

▾ Soana Moala Kathryn Beck takes office as the 30th President. She continues the strong focus on the advancement of women, and a broadening focus on diversity in the profession, access to justice and communication to Law Society branches. The #Me Too developments in 2018 place her under intense pressure but she provides strong and visible leadership of the profession. “I’m a bit bruised, last year took its toll and I struggled with some aspects of it but I never regretted being in this role,” she tells LawTalk in April 2019. “We were given a massive wake-up call … but as a profession we listened, we reflected and we accepted that things had to change. There is still a long way to go but people are willing and there is a momentum and genuine desire for change.” She continues to lead the Culture Change Taskforce.

On 11 April at the memorial service for Judge Ian Borrin, the Michael and Suzanne Borrin Foundation, in memory of his parents, is announced. The $38 million charitable trust – one of New Zealand’s largest single purpose trusts – is devoted to legal education and research.

On 1 June Mina Wharepouri is sworn in as a District Court Judge and becomes the first Tongan-born Judge.

On 2 September Soana Moala is sworn in as a District Court Judge, becoming the first Tongan woman appointed to the bench.

39 NEW ZEALAND LAW SOCIETY September 2019 · LAWTALK 932

On 1 February, 13,530 New Zealand-based and 803 overseas-based lawyers hold practising certificates. Of these, 51.3% are women.

On 7 March the Law Foundation announces it will be going into recess to allow its funding base to rebuild. The last funding round will be in June 2020.

On 14 March the Law Society announces the appointment of an independent Board member. Social entrepreneur Jason Pemberton is the first non-lawyer to be involved in setting Law Society direction.

On 9 April Helen Morgan-Banda becomes Executive Director of the Law Society.

On 10 April Tiana Epati becomes the 31st President and fourth woman in the role. She is also the first person of Samoan ethnicity to be President.

On 2 May Justice Joseph Victor Williams becomes the first Māori appointed to the Supreme Court.

On 10 June NZAL Lawyers is launched in Auckland. A sub-group of NZ Asian Leaders, it aims to offer collegiality, guidance, and wisdom to the growing Asian legal community.

On 3 September the Law Society completes 150 years as an organisation.

▴ Tiana Epati 2018 2019

On 14 February the Newsroom website reports “a pattern of sexually inappropriate behaviour” by some senior male lawyers at Russell McVeagh towards female university students who were summer clerks in Wellington in 2016. The resulting fallout places the role of the Law Society under intense scrutiny and a wide range of measures and support systems are subsequently introduced.

On 20 February at the Supreme Court the Michael and Suzanne Borrin Foundation announces five inaugural grants totalling $1.7 million for criminal justice, family law and Māori legal research projects.

On 1 March the Law Society announces a working group, to consider what improvements can be made to enable better reporting of harassment in the legal profession to the Law Society. Dame Silvia Cartwright is subsequently appointed chair, along with four other members. The working group reports in December and the Law Society Board accepts its recommendations and commits to taking action to get them implemented.

On 12 April the Law Society launches its Gender Equality Charter which is a set of commitments around gender equality aimed at improving the retention and advancement of women in the legal profession. By August 2019 133 legal workplaces have signed the Charter.

On 30 May the Law Society releases the results of its Workplace Environment Survey. With input from 3,516 lawyers this shows that nearly one third of female lawyers have been sexually harassed during their working life and more than half of all lawyers have been bullied at some time in their working life. President Kathryn Beck says the Law Society is committed to building a culture that is safe, inclusive, fair and just. She asks all lawyers and stakeholders to work with the Law Society and announces the formation of a taskforce to drive culture and systems change across the profession and to eliminate bullying and sexual harassment.

On 1 July lawyers are required to comply with the Anti-Money Laundering and Countering Funding of Terrorism Act 2009. The Department of Internal Affairs is supervisor.

40 POSTGRADUATE LAW

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APPLICATIONS OPEN 1 OCTOBER victoria.ac.nz/postgraduate-law EMPLOYMENT LAW · UPDATE September 2019 · LAWTALK 932

UPDATE EMPLOYMENT LAW “Default” union enrolment widely supported, study finds

BY LYNDA HAGEN Immediate opt-out right The employment law experts convinced him that a union default Nearly two-thirds of New Zealanders had to be accompanied by an opt-out right, available immediately. support automatic trade union enrolment This would overcome the argument that a union default would for new job starters, provided they also restore “closed shop” unionism. have the right to opt out afterwards, “None of the experts we spoke to want a return to compulsory according to research conducted as part union membership – they all favour choice,” he says. “Neither of a Law Foundation-backed study. National nor Labour want to return to compulsory unionism, What’s more, support for a “union and the International Labour Organisation opposes it. So opt-out default” policy extends across society, must be available to keep unions accountable, offering services regardless of political, occupational, income that members want.” and other differences. The idea is backed He says a major concern was that people will be “duped into by managers, employers, workers and the membership” by being passively enrolled, without even thinking unemployed alike. Supporters of most of the about it. main political parties favour it, including “We were thinking about a stand-down period before allowing ACT – only National voters are marginally people to opt out, but we now realise that’s a bad idea. There has against, with just under half liking the idea. to be choice, available immediately and easily.” Study co-author Mark Harcourt, Professor at Waikato University School Support from most groups of Management, says the survey results The survey found that a majority of virtually every group stud- surprised him. ied in the survey favoured a union default. This included almost “Support for this cuts across the whole every ethnic group, both genders, all income groups except those population – even the few groups against earning more than $150,000, every educational group, almost all had large minorities in favour. I find this occupational groups (including managers), all groups by employ- fascinating and heartening,” he says. ment status (including employers). Perhaps surprisingly, 60% of The nationwide survey in May of 1,471 managers supported union default, as did 62% of employers and randomly-chosen people found that 60% 51% of self-employed people. of respondents favoured a union default Professor Harcourt isn’t lobbying for a union default policy with policy. This complements the findings from decision-makers just yet – he wants to tease out the rich data from in-depth interviews with 42 employment the survey over the coming weeks, to build support for change. law experts, 70% of whom liked the idea. “We are thinking longer term. We’ve been in touch with other Professor Harcourt wanted to test the countries as well. I’m convinced that there is real potential in this.” union default idea as a way of reversing Professor Harcourt co-wrote the study with Waikato Law declining union membership and the Professor Margaret Wilson, Victoria University of Wellington accompanying growth in income inequal- law student Nisha Novell, and affiliate researcher Gregor Gall of ity over the past three decades. Glasgow University. “I’m sure that the way people answered For more information on this and other grants made by the was motivated by their feelings about Law Foundation, visit www.lawfoundation.org.nz. ▪ unions,” he says. “People were in favour largely because they think that unions are Lynda Hagen  [email protected] is Executive good for society and the workplace.” Director of the New Zealand Law Foundation.

42 LAWTALK 932 · September 2019 UPDATE · ENVIRONMENTAL LAW

UPDATE ENVIRONMENTAL LAW The Zero Carbon Bill – a framework for New Zealand’s climate change journey

BY DUNCAN BALLINGER

Need for action on does not currently have a coordinated and joined-up approach. climate change The task of planning for the effects of climate change is left to be Climate change is happening, and it is considered by local authorities in their planning role. happening now. And it is caused by human New Zealand needs a national framework to guide our response activity. There is overwhelming scientific to climate change. To that end, the Minister for Climate Change, consensus about this (eg, BD Santer James Shaw, has introduced the Climate Change Response (Zero “Celebrating the anniversary of three key Carbon) Amendment Bill into Parliament. It passed its first read- events in climate change science” Nature ing on 21 May 2019 with cross-party support and only one vote Climate Change, 25 February 2019). against, which is a remarkable achievement. The Environment We are in a climate emergency, but we select committee is currently considering submissions. can, and should, do something about it. We This article describes how the bill works and why it is a major can mitigate how bad the effects of climate step forward on climate change. In summary, the bill puts in place change will get by reducing emissions of a net zero emissions target for 2050, and requires budgets and plans greenhouse gases. The international agree- to be produced as stepping stones towards meeting that target. ment reached in Paris in 2015 was that we The bill also creates an independent Climate Change Commission, should aim to reduce emissions so that to give advice on adaptation and mitigation planning. But the bill there is no more than 1.5°C of global aver- could be stronger in terms of how it is allowed to have legal effect. age temperature increases. That will require reducing global emissions of carbon diox- Climate Change Response ide by around 45% by 2030 and to net zero (Zero Carbon) Amendment Bill by around 2050 (Intergovernmental Panel As the bill’s title suggests, it focuses New on Climate Change (IPCC) “Global Warming Zealand’s mitigation response to climate of 1.5°C” (October 2018) at p 95). As well, we change around a “net zero” emissions should prepare for the likely consequences target. This requires that net emissions for of climate change, such as sea level rises most greenhouse gases are zero by 2050. and more frequent and intense storms. This target is based on the science sum- We have begun to see these consequences The bill puts marised in the IPCC’s 2018 report, which already, and they will likely get worse even in place a says that to stabilise global temperature if global average temperature increases are net zero increases within 1.5°C, global emissions limited to 1.5°C. emissions of carbon dioxide need to reduce to net To date, New Zealand has not had a clear target for zero by around 2050. New Zealand should governing framework for reducing its emis- 2050, and play its part towards the global effort to sions and planning for the effects of climate requires achieve this. change. It has sought to reduce emissions budgets and The bill sets a separate 2050 target for through the emissions trading scheme plans to be methane produced from the agriculture (ETS), which puts a price on some green- produced and waste sectors (known as biogenic house gas emissions. The ETS has been as stepping methane). The bill will require that gross ineffective in inducing significant emis- stones emissions of biogenic methane decrease sions reductions (Productivity Commission towards by between 24% and 47% relative to 2017 “Low-emissions economy” August 2018 at meeting that levels by 2050. Methane is a short-lived p 128). In terms of adaptation, New Zealand target but very potent greenhouse gas. It decays

43 ENVIRONMENT LAW · UPDATE

after around 12 years in the atmosphere, but has a 34 times greater warming effect than carbon dioxide during that time (New Zealand Agricultural Greenhouse Gas Research Centre “How do livestock affect the carbon cycle?”, November 2017). So it makes sense to have a separate methane target. The bill requires step-wise progress towards the long-term 2050 targets. The minister must set five-year budgets in advance so that there is always one current budget and two future budgets covering approximately the next 15 years. The minister will have advice from the Climate Change Commission on what the budget should be. The Commission is an independent and expert body that will recommend what the budget should be, and how it may be realistically met using pricing and policy methods. The minister must give reasons for departures from the Commission’s recommendation. The bill does not tell us how the budgets are going to be met. It simply requires that there are plans in place for meeting them. Emissions reduction plans are to be prepared by the minister before the budget period begins. The plans must include sector-specific policies for how to reduce emissions and increase removals of carbon from the atmosphere, as well as a multi-sector strategy to meet emissions budgets. Plans must also include a strategy that accounts for the need for a just transition to a low carbon economy, so that the impacts of reducing emissions on workers, regions, iwi and Māori and wider communities are mitigated. The Commission will give advice on the direction of policy required by the plans. The Commission is an important part of the new regime to be created by the bill. It injects expertise, independence and transparency into New Zealand’s The bill provides a centralised adaptation framework. climate change response. The Commission will be an The Commission will prepare a national climate change independent Crown entity consisting of up to seven risk assessment every six years. The risk assessment will members who collectively have expertise in climate take into account the economic, social, health, environ- change, governance, policy, the environmental, eco- mental, ecological and cultural effects of climate change, logical, social, economic and distributional impacts of and the distribution of those effects across society and climate change, and te Tiriti o Waitangi and te ao Māori. vulnerable groups. In response to that risk assessment, This expertise will feed into the budgets and plans. the minister must prepare a national adaptation plan The Commission will also monitor and report on pro- that sets out the Government’s objectives, strategies and gress towards meeting budgets and the 2050 target by policies for adapting to the effects of climate change. producing an annual report on New Zealand’s emissions and the adequacy of the emissions reduction plans. The bill’s weaknesses Then, at the end of a budget period, the Commission While the bill is a good start in establishing a framework will report on whether the budget was met. This will for reducing emissions and adapting to the effects of ensure transparency on New Zealand’s progress towards climate change, it contains a number of weaknesses. the 2050 target. If we are slipping and sliding, the public These could frustrate the progress towards the bill’s can hold their politicians accountable. purpose of developing clear policies that contribute Another important pillar of the bill is its provision for to the global effort to stay within 1.5°C. Many of these adaptation. There is a certain level of climate change problems have been raised in over 400 submissions that is already locked into the global climate system due received by the Environment select committee. Here I to our emissions to date. Even with 1.5°C of warming focus on three weaknesses in the legal architecture of there will be more frequent heatwaves and heavy rainfall the bill. These aspects are also addressed in a submission events, more intense tropical cyclones, losses of some lodged by Lawyers for Climate Action New Zealand, species, spread of diseases, and issues with water and which is available on its website. food security (IPCC at pp 178–181). The first weakness is in how the 2050 target and

44 UPDATE · ENVIRONMENTAL LAW

the bill is very weak in this regard. and reasonable manner. The reme- This appears to be inconsistent with dial approach should be left to New Zealand’s obligation under develop over time, as it has for the the United Nations Framework New Zealand Bill of Rights Act 1990 Convention on Climate Change to and in judicial review over the last “take climate change considerations 30 years. For example, if a deci- into account, to the extent feasible, sion to be made by a Government in its relevant social, economic and department would make a budget environmental policies and actions”. unachievable, it should be possible The second weakness is that the to obtain an order quashing that bill does not make any changes to decision. Another possible remedy other legislation (other than some that has been suggested is that if minor tweaks). This creates some the Government has failed to meet significant inconsistencies. Most a target or budget then it should glaring will be the tension between be ordered to invest in appropriate the bill and sections 70A and 104E of infrastructure an amount of money the Resource Management Act 1991 equivalent to the cost of purchasing (RMA). Those provisions say that emissions credits on international planning and consenting author- markets to make up the shortfall ities must disregard the effects (Jonathan Church “Enforcing the of a greenhouse gas discharge on Climate Change Act” (2015) 4 UCL climate change. This means that Journal of Law and Jurisprudence 109 the RMA overrides the 2050 target at 131-132). and emissions budgets from even being permissive considerations in Conclusion RMA decision-making. That could The bill before Parliament is a be a major obstruction to achieving promising start in providing a the target and budgets. Thankfully, framework for New Zealand to the relationship between the RMA reduce its emissions and prepare and climate change is within the for the effects for climate change. scope of the comprehensive review It creates a clear structure so that of the RMA recently announced by budgets and plans are produced in a the Minister for the Environment. transparent manner with appropri- emissions budgets are able to influ- The third weakness is that the bill ate expert input. This will insulate ence decision-making under other constrains the ability for the courts climate change policy from political legislation. It might be thought that to order remedies in situations ebbs and flows. the target and budgets are so “obvi- where the target or a budget has not However, there are some ously important” that they become been met. Proposed section 5ZJ says weaknesses in the architecture of mandatory relevant considerations that no remedy or relief is available the bill. The targets and budgets for many decisions (CREEDNZ Inc for the failure to meet the 2050 created under it cannot be man- v Governor-General [1981] 1 NZLR target or a budget, and the target datory considerations for judicial 172 (CA) at 183). But the bill stifles and budgets are not enforceable review purposes. The bill does this sort of argument from being in a court of law. A court may only not yet interface well with other raised. Section 5ZK says that the make a declaration that the target legislation. And the availability of 2050 target and emissions budgets or a budget has not been met and remedies to enforce the target and are permissive considerations and award costs. budgets is significantly constrained. that the failure to consider them It appears the thinking behind The select committee should address does not invalidate anything done this provision may be that the these aspects of the bill before it is by that person or body. This will Government does not wish to be enacted. ▪ immunise decision makers from exposed to damages claims for judicial review in cases where they failing to meet the target or budgets. Duncan Ballinger  Duncan. have failed to take the target or a While that rationale is understand- [email protected] is budget into account, regardless of able, section 5ZJ goes too far in a junior barrister at Stout Street the consequences of that decision excluding all remedies and making Chambers, Wellington, and a found- for the achievability of the target the target and budgets unenforcea- ing committee member of Lawyers and budgets. That is, despite the ble. This will prevent the courts from for Climate Action New Zealand Inc, importance of climate change think- applying or creating remedies in  www.lawyersforclimateaction. ing permeating across Government, appropriate cases in a proportionate nz.

45 INCORPORATED SOCIETIES · UPDATE September 2019 · LAWTALK 932

UPDATE INCORPORATED SOCIETIES New Incorporated Societies Act Progress Report 1

BY MARK VON DADELSZEN

In a series of three articles, incorporated societies expert Mark von Dadelszen will look at the proposed reform of the law relating to incorporated societies. This will involve a complete overhaul of the existing century-old legislation.

A brief history of the still underpinned by the principles Consumer Affairs’ June 2019 reform process set out in the Law Commission’s Cabinet Paper records that “incor- An 1895 New Zealand statute was 2013 report. porated societies make a significant the first to provide for the incorpo- First, incorporated societies are contribution to New Zealanders’ ration of a wide range of community organisations run by their mem- wellbeing”, and confirms that the societies in New Zealand, and it was bers, and those members have the present legislative proposals are to replaced on the consolidation of primary responsibility for holding completely replace the Incorporated all statutes in 1908 by the present their societies to account, and a Societies Act 1908, provide a modern Incorporated Societies Act 1908. It group without members to hold and clearer statutory framework for has effectively remained unchanged it to account should consider an incorporated society governance, for over a century (in 1920 it was alternative form of incorporation align the definition of incorporated amended to allow for branch soci- (such as a trust). society officers with the definition eties, further minor amendments Second, incorporated societies in the Charities Act 2005 (a some- were made in 1923 and 1953, and should not distribute profits or what narrower definition than on the introduction of decimal financial benefits directly to mem- was previously proposed), require currency in 1967 a shilling fine was bers (who join to achieve a shared better processes for how societies changed to 10 cents). In contrast, purpose, and not for any personal deal with member grievances and our companies’ legislation has been financial profit from the activities of complaints, and make significant totally re-enacted six times since the the society) – a key feature setting changes to provisions relating to Joint Stock Companies Act 1860 incorporated societies apart from trade unions. (1868, 1882, 1901, 1903, 1933 and other forms of incorporated entities. It is also now proposed to give 1993), all with regular amending Third, incorporated societies existing charitable societies regis- Acts. are private bodies that should be tered under the Charitable Trusts The Law Commission’s 2013 self-governing and largely free from Act 1957 the option to migrate to Report 129, “A New Act for inappropriate State interference. the new incorporated societies Incorporated Societies”, recom- Finally, the legislative regime regime (rather than, as previously mended a complete overhaul of should give incorporated societies proposed, requiring them to migrate the Incorporated Societies Act some flexibility to adapt their to the new Incorporated Societies 1908. The 2015 Exposure Draft of the operating environment to suit their Act regime), and to give existing Incorporated Societies Bill largely purposes and their culture. incorporated societies the option to followed the recommendations in move to the new register (ie, under the 2013 Law Commission Report, The new Incorporated the new Act) “only if they confirm but progress has been stalled for the Societies Act – as that they wish to be so moved and last four years. now proposed that they have achieved compliance The reforms as now proposed are The Minister of Commerce and with the requirements of the new

46 UPDATE · INCORPORATED SOCIETIES

comply with the new requirements societies will need to amend their constitutions). Concluding observations The substance of the reform proposals approved by Cabinet in June 2019 are unlikely to change significantly as the reforms are not considered to be politically con- troversial. However, a number of societies and interest groups are likely to make submissions on the bill (particularly during the committee stages of the bill’s passage through Parliament). The new requirements proposed to be placed on incorporated societies by the new Act (the trade-off in return for the benefits of incorporation) will be onerous for some and may prompt some fundamental reconsid- eration about existing societies: • Why do we have a society, what need is it meeting, and are we fulfilling the wants and needs of our members – fundamentally what is our “purpose or “mission”? Do we need a society (with voting members) or might some other type of organisation (perhaps a trust) meet our needs? • To lessen the new legislative burdens, might there be merit in considering combining forces with some other organisation or organisations providing similar community services (such as forming a combined sports club or cultural society)? • Do we actually need to be incorporated (the main benefit of incorporation for most societies being to protect members from most personal liability for society activities)? statute (such as amending their being incorporated entities (the • If we choose to remain incorporated, how will constitution to include dispute res- Cabinet paper recognises that this we meet the greater reporting and accountability olution provisions).” These aspects proposal may “become subject to requirements of the new Act? Will we need to pay or of the current proposals are likely to criticism”, and the author of this increase committee honoraria or engage some external attract criticism as it can be argued article fears that many societies professional help? that, because charitable societies that are poorly governed will elect Existing societies reviewing their constitutions should enjoy some privileges, they should not to transition, to the potential seek to anticipate the changes by adopting constitutions not be exempt from the greater detriment of their members and that comply with the provisions expected to be included rigour proposed to be required of third parties). This option is likely in the Incorporated Societies Bill. This will avoid the those governing other incorporated to be taken by smaller societies for pressure of having to revise a society’s constitution societies. which the added administrative during the transitional period after the new Incorporated The present intention is to reduce burdens imposed by the new stat- Societies Act is enacted, as well as saving some effort the originally proposed four-year ute are considered to outweigh the and cost. ▪ transition period for societies to benefits of incorporation. comply with the new statute to During the transitional period of Mark von Dadelszen  mark.vondadelszen@bvond. 30 months. However, it is also two years and six months, every co.nz is a consultant with Bannister & von Dadelszen. proposed that existing societies existing society will need to check He was a member of the Reference Group advising will be allowed to elect whether that its constitution complies with the Law Commission in the preparation of its report or not to transition to the new the new requirements (I anticipate on the proposed reforms, and was engaged by the legislative regime. Those that do that few existing constitutions will Ministry of Business, Innovation and Employment to not transfer to the new regime comply with the new requirements, advice on the proposed model constitution as originally will cease to enjoy the benefits of and where constitutions fail to recommended by the Law Commission.

47 LAW OF TOKELAU · UPDATE

UPDATE LAW OF TOKELAU The story behind the first Tokelau High Court judgment

BY RICHARD FLETCHER

Zealand law. But the Employment Relations Act 2000 Just before Prime Minister does not apply to Tokelau, even though Tokelau is part of Jacinda Ardern was visiting Tokelau New Zealand. Nor does any other New Zealand statute – the first New Zealand Prime unless that statute specifies that it applies to Tokelau Minister to do so for 14 years – judg- (section 6 Tokelau Act 1948). ment from the first full hearing of the So, what is the law of Tokelau? The common law of High Court of Tokelau was issued, England – but what common law? Counsel referred to but in Wellington (Suveinakama v the common law at 1996 or the time the case was heard play quite a role in how Tokelau Council for the Ongoing Government in February 2019. The Chief Justice, in an interlocutory runs, including having considerable of Tokelau [2018] NZHC 1787). decision, referred to the common law as received in control over purse strings. Accompanying Ms Ardern was the New Zealand in 1840. Halsbury concurs with the Chief These issues came into play when Tokelau Administrator, her father Justice’s view – to an extent. Halsbury’s Laws of England two officials, the plaintiffs before Ross Ardern. Also with her was (Hailsham Edn) [990], n 4 refers to the “law of England Churchman J, were involved in pur- Kris Faafoi, a Cabinet Minister of at 1840 save insofar as inconsistent with the Tokelau chasing two helicopters in late 2016, Tokelauan descent and the MP for Islands Act 1948 or inapplicable to the circumstances of part of a proposal to provide an air Mana – an electorate based around the islands ….” and later laws in force in the Gilbert and service. Substantial revenues from its Porirua, a city that reputedly has Ellice Islands Colony at 1 January 1949. What common fisheries and access to a development more Tokelauans than Tokelau. law applied was one issue in what, essentially, was a fund meant Tokelau could fund pro- The High Court of Tokelau, you common law wrongful dismissal case jects itself and was no longer entirely may ask. Why Wellington? The The Chief Justice became involved when some thought dependent on New Zealand aid. Prime Minister’s father? Such are the hearing should be in Tokelau rather than Wellington some of the, at times, quirky, some- (Suveinakama v Council for the Ongoing Government of The outcome times bizarre, issues around New Tokelau [2018] NZHC 1670). The court was concerned, Questions arose about whether Zealand’s administration of its most among other things, about logistics for the High Court spending on the helicopters was remote outpost. First things first: the to get to and sit in Tokelau. That concern reflects that authorised. Churchman J ruled the “High Court of Tokelau” is the High the only way to Tokelau is by boat, taking some 36 hours two officials were lawfully dismissed Court of New Zealand sitting as the from Apia, Samoa. but changing their suspension from High Court of Tokelau. See section one “on pay” to one “without pay” 3 of the Tokelau Amendment Act Small and isolated was unlawful. 1986, and Leilua-Lei-Sam v Council for The hearing Judge, Churchman J, explained some of the The case was essentially about the Ongoing Government of Tokelau background. Tokelau, he said, was one of the smallest wrongful dismissal. However, it [2012] NZHC 2775. Confused? More and most isolated countries on earth consisting of three also highlighted difficulties involved is to come. atolls with a total land area of about 11.7 km. Some 42 in administering a small group of Tokelauan officials operate from Apia in Samoa, which islands. With some administra- What is the law is 500 km from the nearest of the three atolls. Total tion in Apia and “government” of Tokelau? Tokelau population is just under 1500 people. in Tokelau, potential for misun- To employment lawyers, the case Tokelau is run in a fairly patchwork way. It has a derstandings arise. The role the might have seemed like a pretty bog government comprising various institutions, but the Administrator, and New Zealand standard unjustified dismissal with Administrator can overrule government decisions. Also, government officials and advisers the odd twist – if you applied New New Zealand’s Minister of Foreign Affairs and MFAT have played, sometimes remotely

48 UPDATE · RELATIONSHIP PROPERTY

UPDATE RELATIONSHIP PROPERTY Law Commission recommends a new Act for dividing property when people separate

BY NICHOLA LAMBIE AND JOHN-LUKE DAY

from Wellington, may not always over 400 submissions from mem- have helped. Reportedly, Mr Ardern, The Law Commission has con- bers of the public, organisations, in his time as Administrator, has cluded its review of the Property community groups, academics, worked on repairing the some- (Relationships) Act 1976 (PRA) by lawyers, Judges and other experts. times fraught relationship between recommending an overhaul of It also relied on a survey of public Tokelau and New Zealand. He has the way couples should divide attitudes and values on relationship visited the islands several times, property when they separate. The property division conducted by the once with Mr Faafoi. Commission proposes Parliament University of Otago with support The first judgment from the High repeal the PRA and replace it with from the Michael and Suzanne Court of Tokelau does not specifi- a new Act. Although the new Act Borrin Foundation. cally address how Tokelau legal would contain some familiar In June, the Law Commission processes can deal with other “com- elements, such as the equal shar- submitted its report, Review of the mercial/contract” matters. There are ing of relationship property, the Property (Relationships) Act 1976 – Te “contract rules”, some of which the Commission’s 140 recommenda- Arotake i te Property (Relationships) court considered. Dealings with out- tions would mean key changes in Act 1976, to the Minister responsi- siders, including contractors putting other areas. ble for the Law Commission, Hon in alternative energy generation Andrew Little. The report is available sources and other infrastructure, The Law Commission’s on the Commission’s website, at raise the spectre of further litigation review https://lawcom.govt.nz/our-projects/ affected by the unique common law The Law Commission reviewed the review-property-relationships- position in Tokelau and the difficul- PRA to ensure it is operating appro- act-1976. ties in administering islands – and priately and effectively. In 2017, it Some of the key recommenda- during her recent visit, the Prime published an Issues Paper and tions in the report are summarised Minister said she would support an sought submissions. At the same below. airstrip for Tokelau. ▪ time, the Commission published a Study Paper examining the changes Relationship property Wellington practitioner, Richard in New Zealand’s social context and the family home Fletcher  richard.fletcher@ since the PRA was enacted in 1976. A strong theme in the review woodsfletcher.co.nz, filed the first In 2018, the Commission published was the unfairness many New proceedings in the High Court of a Preferred Approach Paper, setting Zealanders felt in having to divide Tokelau. He has maintained an out its draft recommendations on property they acquired before a interest in Tokelau administration key issues and inviting feedback. relationship, especially the family since then. The Law Commission received home. Currently, the family home is

49 RELATIONSHIP PROPERTY · UPDATE September 2019 · LAWTALK 932

always classified as relationship property and divided requirements, based on the existing its place the Commission proposes between the partners even if it was owned by one part- section 14A requirements. That is, the introduction of Family Income ner before the relationship. This rule was put in place there must be a child of the rela- Sharing Arrangements (FISAs) as a in the 1970s, when the paradigm relationship was a tionship or one partner must have simpler and more accessible remedy. marriage, entered into early in life, in which the spouses made substantial contributions to Under a FISA, the partners would accumulated property and raised a family over time. The the relationship, and in either case be required to share income for a family home was therefore a product of the family joint a court should only be able to make limited period after separation. A venture, to which each partner was deemed to have an order for division if it considers partner would be entitled to a FISA contributed in equal, albeit different ways. However, it just. If these requirements are when they have suffered economic increasing rates of separation and repartnering mean satisfied, the relationship should disadvantages from the relationship that more people are entering relationships later in life, be subject to the ordinary rules of when: often having already accumulated key assets such as division. a. the partners have a child together; their home. In these situations, the family home cannot b. the relationship was 10 years or be said to be a product of the family joint venture, and Rethinking how economic longer; or equal sharing can produce an unjust result. advantages and c. during the relationship: To address this issue, the Law Commission recom- disadvantages are shared (i) Partner A stopped, reduced mends revising the definitions of relationship property The Law Commission has concluded or did not ever undertake and separate property so that property is only treated that section 15 has been unsuccessful paid work, took a lesser as relationship property if it was: in effectively addressing economic paying job or declined a a. acquired by either partner for the partners’ common advantages and disadvantages promotion or other career use or benefit; or arising from the relationship or its advancement opportunity in b. acquired or produced by either partner during the rela- end. Section 15 gives the court the order to make contributions tionship (excluding third party gifts and inheritances). power to compensate one partner to the relationship; or The family home should no longer be treated as relation- from the relationship property pool (ii) Partner B was enabled to ship property just because it was used by the partners when there is a significant disparity undertake training, edu- during the relationship. The Commission instead rec- in the partners’ income and living cation and/or other career ommends that when the family home was acquired by standards because of the way they sustaining or advancing a partner before the relationship was contemplated, or divided their functions during the opportunities due to the was received as a third party gift or inheritance, it should relationship. The remedy is mainly contributions of Partner A be classified as the owning partner’s separate property. intended to address situations to the relationship. Only the increase in the property’s value while being where one partner worked less If eligible, the amount payable used as the family home should be relationship property. during the relationship, usually to under a FISA should be determined care for the partners’ children and by a statutory formula that shares Simplifying the eligibility criteria maintain the household. The other the partners’ combined income for a The Law Commission is satisfied the law should continue partner is then freed up to pursue period of time that is approximately to apply in the same way to marriages, civil unions a career. At the end of the relation- half the length of the relationship and de facto relationships that last for three years or ship, equal division of relationship up to a maximum of five years. The more. This will ensure equal treatment of relationships property may not recognise the family income should be calculated that are substantively the same and is consistent with reduced income-earning prospects based on what the partners earned social trends such as the increasing prevalence of de of the partner who has given up in the period before separation. facto relationships. The Commission acknowledged, workforce participation, nor would Partners should be able to however, that some submitters were concerned that it recognise the economic benefits apply to the court to adjust the the definition of de facto relationship does not provide the other partner will continue to formula when the amount payable adequate guidance or certainty on when a relationship enjoy from their established career. would not accurately reflect the starts. To address this concern, the Commission recom- The problems with section 15 economic advantages and disad- mends a new statutory presumption that two people include the time and cost of making vantages each partner takes from are in a qualifying de facto relationship if they have a successful claim and the incon- the relationship. maintained a common household for a period of at least sistent approaches adopted in the If FISAs are implemented, the three years. The presumption would be rebuttable by courts. The Supreme Court’s recent Commission also recommends the evidence that the partners did not live together as a decision in Scott v Williams [2017] repeal of the maintenance regime couple, with reference to the existing section 2D(2) list NZSC 185, [2018] 1 NZLR 507 has under the Family Proceedings of factors. not improved the accessibility of Act 1980. FISAs would be a more The Commission also recommends simplifying the the remedy. All five Judges issued effective form of income sharing eligibility criteria by removing the special rules for short- separate judgments providing and the justification for providing term relationships. Marriages and civil unions should different views on many matters, income to a former partner through always be subject to the ordinary rules of division. If a including the level of compensation maintenance in situations when the couple are in a de facto relationship but they have not to be awarded under section 15. partner is not otherwise entitled to shared a common household for three years, they should The Law Commission recom- a FISA is, the Commission considers, only be subject to the new Act if they meet additional mends the repeal of section 15. In questionable.

50 LAWTALK 932 · September 2019 UPDATE · RELATIONSHIP PROPERTY

Access to property held on trust simple and speedy resolution of rela- relationships ending on separation. Many families in New Zealand use trusts as a means of tionship property matters. Lengthy The context for dividing property on holding key items of property. The PRA only applies to delays and unaffordable costs the death of a partner is different. It property of which the partners are the beneficial owners. exacerbate what is already a time involves tensions between the rights Consequently, when placed on trust, there is usually no of anxiety, uncertainty and conflict of the surviving partner and other requirement that the property be divided at the end of for many. The Law Commission has parties that might stand to benefit the relationship. The Law Commission has concluded made a range of recommendations from the deceased’s estate, such as the use of trusts in this context often causes problems. designed to promote the just and children from a prior relationship. After separation, a partner may be unfairly deprived of efficient resolution of disputes The Commission has recommended access to property that would otherwise be relationship including: these competing interests should be property. In addition, several remedies against trusts • developing “pre-action proce- considered and resolved as matters have developed outside the PRA, such as claiming a dures” to encourage the resolu- of policy within a broader review of constructive trust over an express trust and the court’s tion of issues out of court; succession law. The Minister respon- broad powers under the Family Proceedings Act to vary • improving Family Court processes sible for the Law Commission, Hon trusts that are nuptial settlements. through the creation of new Andrew Little, has requested that the The Law Commission recommends the new Act should procedural rules and the estab- Law Commission commence a review provide the Family Court with broader powers in order lishment of a Family Court Rules of succession law in the 2019/20 year. to provide for a just division of property when a trust Committee for this purpose; and The terms of reference of this review is involved. A new remedy should enable the court to • imposing a continuing duty to are yet to be determined. respond to the various ways in which a trust might hold give timely, full and frank disclo- property that is produced, preserved or enhanced by the sure of all relevant information What next? relationship. The Commission recommends the court’s accompanied by stricter conse- The Government will now give power to vary a trust under the Family Proceedings Act quences for non-disclosure. further consideration to the should be repealed. The new Act should be the principal Commission’s 140 recommendations source of law in relation to the division of property when Division of property for reform and the wider impact of a trust is involved, and partners should not have to look on death its proposals. ▪ elsewhere for relief. Part 8 of the PRA sets out how property may be divided when one of Nichola Lambie is a Principal Legal Improving dispute resolution the partners in a relationship dies. and Policy Adviser and John-Luke A key issue that featured strongly in the Commission’s The Law Commission recommends Day is a Senior Legal and Policy review is that the PRA does not facilitate the inexpensive, that the new Act only apply to Adviser at the Law Commission.

51 ALTERNATIVE DISPUTE RESOLUTION September 2019 · LAWTALK 932

ALTERNATIVE DISPUTE RESOLUTION Experienced arbitration lawyers aiming to make New Zealand a Pacific arbitration hub

BY NICK BUTCHER

So, whether it’s China, Singapore “I’m very much from the Pacific: Some experienced New Zealand lawyers who’ve or Hong Kong, I’m much more born in New Zealand and growing worked overseas in arbitration have returned home for convenient here than somebody up in Vanuatu. The Pacific is such the Kiwi lifestyle and to help create more opportunities in London.” a big part of us. Even though Asia for international work now available here. She says New Zealand is in a great is halfway between New Zealand Coming back to the green pastures and, perhaps, the position to grow towards being an and Europe, when you are in New simpler life of New Zealand is not an easy decision to arbitration centre for both Pacific Zealand, Asia somehow feels closer make – especially if you’ve had opportunities to work neighbours and Asia. than it did when I was in London. on major arbitrations in places like Paris and London. “Especially the Pacific where there We’re much more connected here So, what next in a career that has seen many globe- are a lot of disputes. Vanuatu, where in New Zealand to both the Pacific trotting and practising international law? I grew up, has its fair share. There and Asia,” she says. are financial disputes, maritime and Keen to grow New Zealand’s reputation shipping disputes,” she says. The pull of family Lauren Lindsay is a barrister at Auckland’s Bankside Earlier in her career, Ms Lindsay Robert Kirkness is a barris- Chambers with extensive experience as an international represented Poland in her first big ter at Thorndon Chambers in arbitration lawyer. She is able to practise law in both international arbitration hearing. Wellington. He’s an experienced New Zealand and England and Wales. “Acting for a state is quite a arbitration lawyer and a Registered Ms Lindsay finds it’s not easy to maintain an inter- unique experience. Servier – a Foreign Lawyer at the Singapore national arbitration practice in New Zealand. French pharmaceutical company International Commercial Court. “It’s particularly challenging as an advocate. There are – sued Poland for preventing some He spent considerable time over- obviously some well-known arbitration lawyers in New of Servier’s drugs from being sold seas but New Zealand is where he Zealand, but they’re probably not practising as much in the Polish market. It was one of wants to be. international arbitration as they’d like to. I think there the first investment treaty cases “Like a lot of New Zealanders is a lot of potential here but there are still relatively concerning intellectual property overseas, as soon as my wife and few international arbitration disputes being decided in rights and the subject matter was I had our first child, we were faced New Zealand, or involving New Zealand-based counsel,” very scientific. The hearing was held with a choice about whether we she says. in the Peace Palace at The Hague, so would stay or come home. The pull New Zealand has been listed as one of 32 seats around being a public international lawyer of family and the New Zealand life- the world considered safe and reliable for arbitration at heart that was very special.” style drew us back. The interesting by independent arbitration institute Delos Dispute Perhaps New Zealanders practis- question for me in terms of my prac- Resolution. ing law abroad are not as aware as tice is whether I can build a New Ms Lindsay continues her work as an independent they should be of how credible their Zealand practice but also maintain consultant for Allen & Overy LLP’s international arbi- skills and expertise are, or maybe the international practice that I had tration team in London. they’re a little too modest. before returning,” he says. “I also work with the A&O Hong Kong office. My Lauren Lindsay says perhaps Mr Kirkness spent four years in practice is probably 50% international arbitration Kiwis might not always appreciate Paris and four years in Singapore and 50% commercial litigation. Because of the time the closeness of their connection practising in the international differences, we are really well placed to do work in Asia. to Asia. arbitration and public international

52 LAWTALK 932 · September 2019 ALTERNATIVE DISPUTE RESOLUTION

▴ Lauren Lindsay ▴ Robert Kirkness ▴ Nicola Swan law teams at Freshfields Bruckhaus The lawyers on the other side were NZ can become big Deringer. from Houston, Texas. We mused a player in the Pacific “Not many of the cases or clients bit once the case had wrapped up Royden Hindle is an arbitrator, were ever from the city that I hap- about what an interesting field – mediator and barrister, and the pened to be living in so there was international arbitration – we had President of the Arbitrators’ and a lot of travel involved. As long as got ourselves into,” he says. Mediators’ Institute of New Zealand you are happy to jump on a plane (AMINZ). and be where you need to be, there The Peace Pipeline case He believes that while Singapore is no absolute need to be based in One of the more interesting cases and Hong Kong are world champi- one particular place in order to do Mr Kirkness worked on were the ons when it comes to the global international arbitration,” he says. so-called “Peace Pipeline arbitra- arbitration market, their focus So, can he maintain a similar set tions”: four parallel cases – two there means that there’s plenty of up being based in New Zealand? investment treaty and two commer- opportunities at a regional level for After all, it’s about a 13-hour flight cial that various foreign investors other nations. to Singapore. brought against Egypt and some “It’s obvious that we [New “You might not be that fresh of its state-owned entities alleging Zealand] are geographically iso- when you get there but I think that’s wrongful termination of a long-term lated. I suspect we might struggle part of the cost of the New Zealand contract for the sale of Egyptian to develop enough critical mass lifestyle. You accept that there will natural to a private company for to become recognised as a truly be a lot of travel if you are going to on-sale to Israel. global arbitration centre, certainly make an international arbitration “One of my main memories in the short-term. The picture is also practice work.” from those cases was that in the complicated because Singapore and international treaty cases, the ter- Hong Kong look to have that (global] Practising before mination of the underlying contract market reasonably well secured. But a mentor was a matter of fact that informed in the Asia-Pacific region, it is a very Robert Kirkness studied inter- whether the international standards different picture. I have no doubt national arbitration under Sir had been breached. That underlying that we can, and will, develop a far David Williams QC, who is con- contract was governed by English greater presence in cross-border sidered one of the world’s leading law, so the lawyers from the other arbitration,” he says. arbitrators. side instructed an expert witness Mr Hindle, who is based at “Shortly before I came back to on the meaning of that contract Bankside Chambers, says New New Zealand, I argued an invest- as a matter of English law. They Zealand arbitrators have an excel- ment treaty case before Sir David. retained Lord Hoffmann, to do that. lent overseas reputation. The claim was brought by someone So, we, as a team, had the privilege “We already have a presence as a national of a European State. of cross-examining Lord Hoffmann on the world stage that is dispro- The hearing was in Paris. The seat on the interpretation of contracts portionate to the size of our legal of arbitration was London. Our legal under English law, not once, but workforce. There are many very team were all based in Singapore. twice,” he says. high-profile arbitrators practising

53 ALTERNATIVE DISPUTE RESOLUTION September 2019 · LAWTALK 932

abroad who call New Zealand home, as well as an increasing number such as Sir David Williams QC who live in New Zealand and yet are in huge demand overseas.” Isolation no barrier The executive director of the New Zealand International Arbitration Centre (NZIAC), Catherine Green, doesn’t think New Zealand’s isola- ▴ Royden Hindle ▴ Catherine Green tion works against it in pursuing a larger arbitration identity. “That tyranny of distance argu- Singapore and Hong Kong. which had prevented it from ment has been voiced numerous “I’ve been International Counsel pursuing its legitimate arbitration times in the past. However, there in the International Disputes Group, against the Government of Belize. is a project called The Southern Link where I’ve been working on inter- The CCJ confirmed that it was which places New Zealand in a very national commercial and investor only in exceptional circumstances good position,” she says. state arbitration, commercial liti- that international arbitrations can The Southern Link, she says, gation, public and administrative be halted by national courts.” The proposes the development of trade law across various jurisdictions, and decision was recognised as the most and travel routes between China and international and domestic human important published decision in South America, and New Zealand rights law,” she says. 2013 by Global Arbitration Review, is right in the middle of that plan. Ms Swan is joining Chapman she says. “We can play quite a key role Tripp’s Dispute Resolution team in in the trans-Pacific region to link Wellington to continue arbitration Ranking high on those countries. They can’t go from and litigation work, and to join and transparency index one to the other without touching expand the firm’s international New Zealand is what could be down somewhere and that touch- arbitration practice, which has a described as an emerging player in down point could logically be us. sought-after Global Arbitration arbitration. It has the potential to Wherever there’s trade, there’s going Review top 100 ranking. be a leader. to be disputes, so having effective “New Zealand will be my home “We’re not established the same dispute resolution processes that base, with a focus on expanding the as Singapore or Hong Kong. What can underpin that is really neces- international work coming through we’re saying is, we’re here, we’re sary. We can definitely play a role New Zealand, particularly through open for business and we’re a good throughout the trans-Pacific region, Singapore and Hong Kong,” she says. option as a location,” Catherine not just because of The Southern Green says. Link project but also on a general Reflecting on a There are many reasons for level too as there is plenty of other memorable case this, including that New Zealand trade going on around this region.” One of the arbitration cases she ranks so high on the Transparency Ms Green says the NZIAC receives is proud of was a case Debevoise International Index – at number regular inquiries from throughout & Plimpton LLP won before the two out of 180 countries, behind the Pacific with the view of utilising Caribbean Court of Justice on an Denmark. But in the Asia-Pacific New Zealand for dispute resolution. appeal from the national courts of region, New Zealand is number one. Belize. It involved the availability of “People look to New Zealand Moving back home anti-arbitration injunctions – that because it ranks so highly which is after eight years is when national courts can stop so important for dispute resolution. Nicola Swan is heading home to an international arbitration from We also have a very safe legal system New Zealand after eight years in the proceeding. and supportive environment. You UK – most of them at Debevoise & “The CCJ granted our client’s need this to support arbitration,” Plimpton LLP in London – in order to appeal from the decision of the she says. expand the international arbitration Court of Appeal of Belize, discharg- While New Zealand does pos- work coming in, particularly from ing an anti-arbitration injunction sess arbitrators with powerful

54 LAWTALK 932 · September 2019 ALTERNATIVE DISPUTE RESOLUTION

ALTERNATIVE DISPUTE RESOLUTION Arbitrations and international reputations, Ms Green says there are also many lawyers who are advocates in arbitration. Proportionality “We really can provide the full package here. It’s not just a solo arbitrator with international expe- BY ROBERT rience. We’ve got very sophisticated FISHER QC lawyers who have been working in this area for a long time who are on the ground. And, while we can resolution institution with rules administer an arbitration from New A feature of arbitration is the which distinguish between different Zealand, it doesn’t necessarily mean opportunity to tailor the procedure kinds and levels of dispute. The New that we must have a New Zealander to the particular dispute. Zealand Disputes Resolution Centre as the arbitrator.” In choosing the procedure, fair- is an example of such an institution Recently, the NZIAC signed a ness and efficiency are obviously to (https://www.nzdrc.co.nz/). memorandum of understanding with the forefront. But equally important The table which follows sets out Argentina’s Chamber of Commerce. is proportionality. Proportionality to match the choice of procedure That organisation was specifically pegs the time and cost of an arbitra- to the value in dispute. It includes looking for a relationship that would tion at a level that will be economic suggestions as to the level of arbi- support them in providing private for the parties having regard to trator fees that would be perceived dispute resolution through arbitra- the magnitude of their dispute. It as economic from the parties’ tion or mediation services. would not be economically rational viewpoint. This includes the pro- “That’s indicative of what’s hap- to stage a successful arbitration at posal that for modest to medium pening at the moment. People are a cost which turned out to exceed level disputes the arbitrator’s fee looking for alternatives. They came the sum at issue. Clients prepared should be fixed. The parties can then to us. It was not an opportunity to litigate “for the principle of the decide in advance whether the game that we sought. The New Zealand thing” are to be applauded. Sadly, is worth the candle. That concern profile is on the rise which is really their enthusiasm usually wanes on recedes as the amount in dispute encouraging,” she says. seeing the bill. grows – hence the suggestion that It follows that at the outset of an above a certain level the fee can be The potential arbitration some form of triaging is based on an hourly rate. Of course, economic benefits required to ensure that the proce- in practice fees vary greatly from More arbitrations are likely to pro- dure to be followed will not be out one arbitrator to another. vide economic spinoffs for New of proportion to the value of the The tick-marks in the “Up to Zealand. After all, people need dispute. The chosen arbitrator will $50,000” column of the table produce accommodation and it is likely usually suggest the best procedure an expedited approach to modest they might want to see some of after considering the nature of the claims. Sequential filing of evidence this country while they’re here on dispute and the amount at stake. and submissions from each side by business. Alternatively, the parties may email is followed by an emailed right In 2012, “Arbitration in Toronto: submit their dispute to a dispute of reply for the claimant, and then a An Economic Study”, by Charles River Associates was published. It analysed the impact of 425 arbitrations carried out in Canada that year.

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55 ALTERNATIVE DISPUTE RESOLUTION September 2019 · LAWTALK 932

Amount in dispute $750,000 + Up to $50,000 to $250,000 – or company or Steps required $50,000 $250,000 $750,000 trust involved Follow simple rules instead of preliminary conference  Procedure is adopted at preliminary conference    No orders for further disclosure  Any orders for disclosure will be made after written submissions  Any orders for disclosure will be made after one or more conferences   Sequential filing of evidence and submissions by each party     Arbitrator gives award after reading the material provided by the parties   One day hearing with party time limits  Conventional hearing with evidence and submissions  Total arbitrator’s fee including award $5,000 $10,000 $20,000 $400 – $800 per hour Plus issues conference if sought $2,000 $5,000 $5,000 $400 – $800 per hour

decision from the arbitrator based on and response cannot exceed 2,000 presentation. Above $750,000 those the written material. The arbitrator’s words. Strict time limits apply. The constraints no longer apply. fee is $5,000. expert’s written decision, with In every case the procedures sug- In my experience expedited pro- reasons, must be given within 10 gested in the table amount to no cedures of that kind work well in days of receiving the material. The more than the default which applies practice despite assumptions to the expert receives a fixed fee of $2,000. unless the parties or arbitrator seek contrary by much of the legal world. The process has worked well over otherwise. Further, the table does For example, it is the process used the 13 years since it was introduced. not purport to set out the detailed by the Domain Name Commission The table above goes on to suggest process for larger or more complex (DNC) to resolve disputes over the more elaborate procedures where arbitrations. These will be the sub- right to use domain names (https:// more is at stake. For example, ject of a further article. ▪ www.dnc.org.nz/resource-library/ where the claim is in the $250,000 policies/65). Under the DNC rules, the to $750,000 category, a detailed Robert Fisher QC  www. dispute is referred initially to media- timetable is set at a preliminary robertfisher.co.nz is a member tion and, if that fails, to “experts” for conference; defended disclosure of Bankside Chambers, a former a binding determination. The com- applications are determined in High Court Judge and the author plainant and respondent file their further conferences; and there is a of Fisher on Matrimonial Property. evidence and argument sequentially hearing. Even there, however, the Since leaving the bench he has with a right of reply for the com- hearing is limited to one day and been in full-time practice as an plainant. The body of the complaint time limits govern each party’s arbitrator and mediator.

56 LAWTALK 932 · September 2019 ALTERNATIVE DISPUTE RESOLUTION

ALTERNATIVE DISPUTE RESOLUTION Appointing your arbitrator

BY JOHN ❝ It is generally not a good idea to annoy the mind WALTON you’re trying to persuade.❞ — Anon

Dinosaurs were not quite roam- entire process; yet regrettably it is used – for example, the UNCITRAL ing the earth when I first turned generally not done as well in New process under which the parties my mind to arbitration as a young Zealand as it might be. Approaches propose not more than three can- lawyer (though my daughter would range from using the last arbitrator didates, the appointing body then demur). It’s not that long ago that to be charmed by counsel’s powers collates a list of five, from which the arbitration was primarily the of persuasion or to favour a client’s parties may object to two and must preserve of lease and construc- position; appointing the most recent rank the remaining three in order of tion disputes. Since that time, we retirement from the High Court preference (see article 30.3 of the have had the almost universal bench, based on how they were per- AMINZ Arbitration Rules). This may adoption of the UNCITRAL Model ceived from prior cases; to simply be more than a little cumbersome Law and what Schultz and Kovacs surrendering the entire process for all but the most complex and have described as “The Rise of a to an appointing body. Sadly, few high value claims, but it is thorough. Third Generation of Arbitrators” counsel fully explore the options Time will tell if this process gains (Arbitration International (2012) available to them; particularly in favour. Volume 2B, Issue 2 at 161). The first what arbitration might offer. This is At times, it would appear that wave was the “grand old men” something that could be done better. contract drafters have relied on who had risen to the top of their supposition, or faulty memories, professions, typically legal, and Drafting the agreement to provide for appointment by who had no particular expertise in The first opportunity to insert some inappropriate organisations or arbitration. Their credibility could be rigour into the selection process is in some that simply don’t exist. In the said to have rested in their grey hair. drafting the agreement to arbitrate. recent case of Tumatatoro Ltd v HJS The second wave was what The minimal, and to be honest quite AG Ltd [2019] NZHC 1047, the parties Dezalay and Garth referred to in satisfactory, approach is for the provided for an independent regis- 1996 as the “technocrats” (Yves agreement to simply provide for tered farm management consultant, Dezalay and Brant Garth, Dealing arbitration under the Arbitration appointed by Federated Farmers, to in Virtue: International Commercial Act 1996. The difficulty with this resolve a rural leasehold dispute. Arbitration and the Construction of approach is that, if the parties fail Regrettably, Federated Farmers do a Transnational Legal Order (The to agree, then the appointment is not, and would not, make such an University of Chicago Press 1996)); made for them by AMINZ under appointment. In the High Court, technical experts who gained their article 11 of Schedule 1 to the Act. Justice Duffy held that the agreed credentials through international No timeframe for agreement is pro- procedure had been defeated; in an arbitration. Schultz and Kovacs’ vided in article 11, and the appoint- exchange of emails the parties had third generation are arbitration ment is made on the application of agreed to arbitration; and, having specialists, with managerial skills at either party. AMINZ then makes the failed to agree on an arbitrator, the the forefront. While the delegation appointment in accordance with its appointment made by AMINZ as the of legal analysis, running hearings Appointments Policy from its panel default appointing body under the and writing awards proposed by of arbitrators, in consultation with Act, was valid. That the arbitrator Schultz and Kovacs would, on any its Appointments Panel. appointed was not a registered farm measure, be a step too far, there is While the AMINZ appointments management consultant, as pro- something to be said for the recog- process is as transparent as it can vided in the original agreement, was nition of arbitrators as specialists be, providing for consultation not an issue as this requirement was in their own right. with experienced practitioners not carried through to the imputed For any arbitration, the selection engaged in arbitration, more could agreement to arbitrate. While the of the arbitrator is probably the be done by counsel. More complex article 11 procedure worked well in most important decision of the arrangements for appointment are that case, with AMINZ making the

57 ALTERNATIVE DISPUTE RESOLUTION September 2019 · LAWTALK 932

appointment, it is perhaps less than proposes to use his or her powers including the questions to be what the parties had intended. under article 19 of Schedule 1. asked and issues canvassed; Coincidentally, the New Zealand Familiarity with the skills and 5. no remuneration or hospitality Law Society advised in July that preferences of potential arbitrators should be offered for agreeing to the Institute of Architects (NZIA) is the key, and having a sensible dis- be interviewed; and will not appoint experts in dispute cussion between counsel over who 6. contemporaneous notes should resolution clauses either: best to select in the expectation of be taken of the interview (which “The NZIA says this has been reaching agreement. For many liti- will be discoverable, if the done without its knowledge gators, arbitration is a field visited appointment becomes an issue). or consent and places it in an infrequently. Perusing the AMINZ or It goes without saying that the untenable position. It notes the New Zealand Dispute Resolution substance of the dispute should not that the NZIA, its President, and Centre website, to identify potential be canvassed during the interview, its architect members generally, arbitrators, can be helpful, but it is, including specific facts, positions are not authorised nor have the at best, only a starting point. of the parties and the merits of the expertise (and insurance) to One solution, all too frequently case. Conversely, the arbitrator’s provide these services.” overlooked, is to interview the pro- background, published speeches spective arbitrator(s) and ascertain and articles, appearances as expert Rejection a matter their suitability for the dispute. witness and positions taken, prior of practice Armed with a clearer picture of appearances as arbitrator (within While lawyers will frequently the available talent, counsel should the constraints of confidentiality) exchange correspondence propos- then meet, face-to-face, and discuss and anything else which may go ing and objecting to candidates for their preferences and try to reach to the arbitrator’s competence, appointment, all too often this is agreement. Exchanging emails and availability or independence are taken as an opportunity to game the firing off letters is a poor excuse for all fair game for discussion. process; or counsel is blinded by sus- a frank discussion, and is usually While this may seem to be over- picion that their opposite number only useful as evidence of a failure kill, selection of your arbitrator is is pulling a fast one. Rejecting the to agree, with a resulting loss of the one of the most important decisions first name on a proposed list of critical power to settle on an arbi- you will make in the arbitration candidates has become a matter of trator which both counsel accept. process, and it should not be practice, on the assumption that this taken lightly; nor should it lightly is the person most favoured by the Useful guidance be surrendered to an appointing proposing party. This has led to some The London-based Chartered body, unless it genuinely cannot listing their preference at number Institute of Arbitrators (CIArb) has be agreed. That is not to say that two or three on their proposed list. published a useful practice guideline appointing bodies do not provide It is hard to see this behaviour on interviewing prospective arbi- a valuable service; clearly they do. as being in the best interests of the trators. Interviews for Prospective However, most counsel experienced clients. Arbitrators CIArb, 2016 sets out six in arbitration are capable of recog- Arbitration is not court litiga- general principles: nising an appropriate arbitrator, and tion, and it provides significant 1. arbitrators may agree to be recommending them to their clients. procedural advantages; the ability interviewed by a party prior to While New Zealand may not be to select your arbitrator; to select appointment; the epicentre of international arbi- your procedure; the availability of 2. when approached, the candidate tration, like Hong Kong, Singapore interim measures; disposal of costly arbitrator should enquire whether or London, that is the context of and time consuming discovery, in pre-appointment communication Schultz and Kovacs’ Third Generation, favour of disclosure; tailoring sub- is prohibited either under the we have a growing cadre of expert missions and the use of experts to arbitration agreement or the arbitrators and legal practitioners suit the dispute; privacy; disposing applicable law; with the experience and skills to of rights of appeal; and the ability to 3. the prospective arbitrator should maximise the benefits of arbitration. agree on costs, including indemnity be provided with a copy of the The starting point is to recognise costs, if that is what clients would arbitration agreement and details that arbitrators are not judges, and prefer – most would, if asked. of the parties and the matter in the process – while legal – is not Properly used, there can be no dispute to ascertain whether or litigation. ▪ doubt that arbitration can get to not they have a conflict of interest the determination of the substance and the qualifications and exper- John Walton  john@johnwalton. of the dispute more quickly and tise to determine the dispute; co.nz is an arbitrator, construction more cost effectively than tradi- 4. the prospective arbitrator should adjudicator and commercial medi- tional litigation. All too often, that then agree the basis upon with ator practising out of Bankside will depend on how the arbitrator the interview is to be conducted, Chambers in Auckland.

58 LAWTALK 932 · September 2019 ALTERNATIVE DISPUTE RESOLUTION

ALTERNATIVE DISPUTE RESOLUTION Cognitive dissonance

BY PAUL SILLS

activity. The unsettled feeling arising Psychology plays a fundamental part in the from cognitive dissonance prompts mediation process. There are five key psychological traits and motivates us to get rid of the that emerge most often in mediation: confirmation bias, inconsistency in order to feel better. cognitive dissonance, reactive devaluation, reciprocation A person experiencing dissonance bias and Hanlon’s razor. This article examines cognitive has three options to achieve this – dissonance and follows on from my previous discussion change their behaviour, change the of cognitive bias. belief, or rationalise the behaviour. Cognitive dissonance refers to the mental discomfort So, going back to our example, a felt when our mind entertains two contradictory con- smoker can stop smoking (behav- cepts at the same time. This theory encompasses the iour), declare that they enjoy idea that we are constantly striving for balance between smoking more than the risk of harm our beliefs and behaviours. If our beliefs and behaviours (belief), or find research disproving are not harmonised we feel uncomfortable, finding the evidence that smoking kills ourselves in a state of cognitive dissonance. Despite (rationalise). the paradox that is life itself, we struggle to hold as true Cognitive dissonance theory was competing interests, theories or stories in our mind at developed by social psychologist any one time. Being able to do so is a fundamental trait Leon Festinger in 1956 as a result of a great negotiator/mediator. In addition, it is often of a study of a doomsday cult pub- essential for the parties in dispute if they are to engage lished in his book When Prophecy in meaningful dialogue. Fails. The cult members believed Most of us can look at life through only one lens – that the world would be destroyed that of our perspective. The perspective of others does by a flood and they would be res- not normally feature in our autobiographical way of cued by a flying saucer. Festinger looking at conflict and the causes of that conflict. Yet was particularly interested in what the ability to see an issue through the lens of another would happen to the cult when no is a fundamental part of good conflict resolution and apocalypse occurred. While some is a cornerstone of empathy. members left the community, As explained by Carol Tavris, co-author of Mistakes many began to reinterpret the Were Made (But Not by Me): “Cognitive dissonance is evidence to suggest the flood had what we feel when the self-concept – I’m smart, I’m Cognitive not occurred because of their ded- kind, I’m convinced this belief is true – is threatened dissonance refers ication. Festinger observed that the by evidence that we did something that wasn’t smart, to the mental group: “doubled down on its belief that we did something that hurt another person, that discomfort felt and said God had simply decided the belief isn’t true.” when our mind to spare the members, coping with Essentially, cognitive dissonance challenges our sense entertains two their own cognitive dissonance by of self. contradictory clinging to a justification”. concepts at Psychologist Saul McLeod has also Irrational behaviour the same time. explained that “the positive spin we Cognitive dissonance features when we engage in irra- This theory place on outcomes of efforts we tional behaviour. For example, smokers are aware of the encompasses have invested significant amounts harm that smoking causes but nevertheless continue to the idea that we of time in can also be explained by smoke. When knowledge of a behaviour differs from the are constantly cognitive dissonance”. That is, if we behaviour actually demonstrated, cognitive dissonance striving for have invested time into a task that occurs. This may be experienced more intensely when balance between turns out badly, instead of writing the belief in question relates to our personal selves, our beliefs and it off as a waste of time, we often or significant value is placed on the particular belief/ behaviours convince ourselves otherwise. We

59 ALTERNATIVE DISPUTE RESOLUTION

decide that, in fact, we did not spend too much time on the task, it was a positive learning experience, and/or it was enjoyable regardless of the outcome. This reaction allows us to avoid feelings of regret and self-pity and maintains the desired balance between belief and action. Unsurprisingly, cognitive dissonance plays a substantial part in the conflict resolution process. To address feelings of dissonance in a conflict situation, people can either: completely disregard ideas that clash with their own (often becoming angry and hostile), ignore what they are confronted with, or use new pieces of information as opportunities to make changes in their lives. The latter strategy is the most beneficial way of dealing with cognitive dissonance as it allows us to re-evaluate who we are, if required. Unfortunately, it is the least used strategy in conflict – we do not take the opportunity to use conflict as a learning tool and motivation for change. However, it is important that we remain open to ideas that challenge our pre-existing beliefs. A study published in the European Self-awareness is key to minimising Journal of Social Psychology discov- the negative feelings experienced Achieving cognitive ered that those who refused to apol- through cognitive dissonance. harmony ogise after making a mistake had Our minds go to great lengths to The next step is to display the confi- increased self-esteem and feelings preserve our sense of identity, so dence and willingness to change our of power compared to those who knowing what dissonance feels behaviours and or/beliefs in order did apologise. Tyler Okimoto, an like helps us to become more to achieve cognitive harmony. This author of the study, noted that: “In mindful and efficient thinkers. is easier said than done – people a way, apologies give power to their When we manifest feelings such often attack the messenger instead recipients”. In saying this, the study as embarrassment, guilt, stress or of evaluating the new information concluded that those who did not confusion, it is useful to recognise and the message itself. However, the apologise suffered more negative that they are not signs that we are ability to recognise new information long-term consequences – relation- wrong. Instead, we can use them as and adjust behaviour accordingly is ships were damaged where there indicators to explore the situation a challenging, but beneficial, skill were no apologies, and the conflicts from a more impartial perspective, for resolving conflict. intensified. While avoiding feelings objectively questioning whether or Apologies are also a significant yet of cognitive dissonance may appeal not we are wrong. ▪ difficult part of the conflict resolution in the short-term, conflicts are more process. If required to apologise we likely to be resolved efficiently and Paul Sills  paul.sills@paulsills. may experience feelings of disso- adequately if apologies are made. co.nz is an Auckland barrister and nance that we attempt to avoid by It is very important to recog- mediator, specialising in commer- refusing to back down. This creates a nise cognitive dissonance and its cial and civil litigation. He is an roadblock to settling disputes. effect on our thought processes. AMINZ Mediation Panel member.

60 LAWTALK 932 · September 2019 PRACTICE

PRACTICE

Diversity in the New Zealand legal profession: At a glance

BY GEOFF ADLAM

beginning and the end that the gender differences are The demographic makeup of New Zealand’s legal most noticeable – 62.2% of lawyers who were admitted profession continues to change. While the proportion of less than 10 years ago are women. And, 93% of lawyers women and men practising law now reflects that of our who were admitted 40 years or more ago are men. society, the ethnic makeup of the profession still lags The similarity of numbers in the middle years of behind that of the national population. The information practice falls away, however, when roles by gender are provided here is intended to give an overview of the considered. Women make up 52% of lawyers working New Zealand legal profession in mid-2019. in law firms with more than one lawyer. However, they Information has been analysed to give a quick picture contribute just 34% of the directors and partners. Women of New Zealand-based lawyers by the time since their far outnumber men in the in-house and community admission, the nature of their work and their location. law centre sectors (separated for the purposes of this Information used draws upon the gender and ethnicity comparison), but are under-represented as Queen’s details provided by lawyers to the Law Society. Counsel and barristers sole. The Law Society has introduced a “Gender Diverse” Overall, there are relatively few differences in where option for lawyers who do not want to be identifed as women and men practise law. Women are slightly more either female or male. Because of the very low number of likely to be based in a major population centre, although lawyers selecting it, this option has not been included in a higher proportion of men are based in Auckland. the analysis for privacy reasons. Information on lawyers Perhaps befitting its status as a super diverse city, selecting two of the available ethnicities has also been a very high proportion of lawyers identifying with all included in the “Other Pacific Peoples” category because ethnicities except NZ European and Māori work in of the low numbers involved. Auckland. The difference evens out when it comes to The information used for these graphs is the number major (over 100,000) population centres. of New Zealand-based lawyers who held a practising certificate at 1 July 2019. The total number is down on NEW ZEALAND-BASED the number at 1 February used in our annual Snapshot LAWYERS AT 1 JULY 2019 of the Profession. This is because over 6% of lawyers did not renew their practising certificates for the new Number of lawyers and average age practising year. This is a normal occurrence and numbers are expected to rise. Gender 6661 6261 Since January 2018 there have been more women practising law in New Zealand than men. The “gender gap” 39 years 8 months 46 years 2 months continues to increase and we could have a profession Women Men where 60% are women in another decade. One-quarter of women lawyers have been in practice for fewer than five years, compared with 16% of men. At the other end of the spectrum, 15% of men have been admitted for 40 years or more, but just 1% of women. Interestingly, in 12,923 the period between 10 and 40 years since admission, Total the proportions are very close – 57% of women and 58% of men have been admitted that long. It’s at the

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Note: All percentages have been rounded to two significant figures.

TIME IN PRACTICE (YEARS) TYPE OF WORK

Time since admission, proportion of gender Workplace, proportion of gender

0 to 5 5 to 10 10 to 40 40 plus Employed Barrister 1.1% Unspecified - 1.0%

Women All Men Queen's Counsel - 0.4% Community Law Centre - 1.0% Sole Practice - 4.8% 16% 21% Barrister Sole - 7.9% 26% 12% 14% 16% Women

In-house - 26% Multi-Lawyer firm - 58%

58% 57% Employed Barrister 0.9% Unspecified - 0.6% 57% 7.8% 15% Queen's Counsel - 1.6% Community Law 1.1% Centre - 0.4% Sole Practice - 9.7% Years Women Men All 0 to 5 26% 16% 21% Barrister Sole - 12% 5 to 10 16% 12% 14% Men 10 to 40 57% 58% 57% 40 and over 1.1% 15% 7.8% In-house - 18% Multi-Lawyer firm - 57%

Time since admission, proportion of years

Unspecified - 0.8% Female Male Employed Barrister 1.0% Community Law 0 to 5 5 to 10 10 to 40 40 plus Queen's Counsel - 1.0% Centre - 0.7%

7.5% Sole Practice - 7.2% 92% Barrister Sole - 9.7% All

51% In-house - 22% Multi-Lawyer 60% firm - 58% 64% 49% 40% 36% Work Women Men All Multi-lawyer firm 58% 57% 58% In-house 26% 18% 22% Barrister sole 7.9% 12% 9.7% Years Women Men Sole Practice 4.8% 9.7% 7.2% 0 to 5 64% 36% Queen’s Counsel 0.4% 1.6% 1.0% 5 to 10 60% 40% Employed barrister 1.1% 0.9% 1.0% 10 to 40 51% 49% Unspecified 1.0% 0.6% 0.8% 40 and over 7.5% 92% Community Law Centre 1.0% 0.4% 0.7%

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Proportion engaged in each role Multi-lawyer firms, proportion engaged in each role Female Male Female Male Queen's Counsel 21% 77% Employee Barrister Sole 63% 37% 41% 59% Director or Partner Employed Barrister 34% 66% 57% 43% Total In-house 52% 48% 61% 39% Role Women Men Community Law Centre Employee 63% 37% 73% 27% Director or Partner 34% 66% Sole Practice Total 52% 48% 34% 66% Multi-lawyer firm Location 52% 48% The information on location uses Statistics New Zealand’s 2018 Statistical Standard for Geographic Areas. This has Unspecified four classes of urban area – Major urban areas with a 62% 38% population of 100,000 or more, Large urban areas with Total a population of 30,000 to 99,999, Medium urban areas with a population of 10,000 to 29,999 and Small urban 52% 48% areas with a population of 1,000 to 9,999. Work Women Men Auckland Other Major Large Queen’s Counsel 21% 77% Medium Small Rural Barrister sole 41% 59% Employed barrister 57% 43% Female Male Total In-house 61% 39% 42% 45% 44% Community Law Centre 73% 27% Sole Practice 34% 66% Multi-lawyer firm 52% 48% Unspecified 62% 38% Total 52% 48% 40% 36% 38% Multi-lawyer firms, proportion of gender

Female All Male

43% 35% 10% 31% 9.2% 9.6% 27% 5.2% 4.9% 5.0% 23% 3.3% 3.5% 3.4% 15% 0.1% 0.2% 0.2% Centre Women Men Total Auckland 42% 45% 44% Employee Director or Partner Other Major 40% 36% 38% Large 9.2% 10% 9.6% Role Women Men All Medium 5.2% 4.9% 5.0% Employee 43% 27% 35% Small 3.3% 3.5% 3.4% Director or Partner 15% 31% 23% Rural 0.1% 0.2% 0.2%

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Ethnicity is perhaps best shown when it of lawyers are found in multi-lawyer The Law Society has required practising lawyers to comes to time since admission. The firms, a much higher proportion of provide information on their ethnicity since 2017, with proportion of new lawyers in the Chinese lawyers work in such firms lawyers given the option of refusing to disclose. This most commonly selected ethnicity, and a lower proportion of lawyers has resulted in comprehensive information, and over New Zealand European, is below of Pacific ethnicities. 95% of practising lawyers have contributed details of the national total. Just under 70% As in the information relating their ethnicity. It is important to note that lawyers may of lawyers in that ethnic group were to gender, the roles carried out in identify with more than one ethnicity. The available admitted over 10 years ago, a long multi-lawyer firms show distinct ethnicity options provided by the Law Society are also way ahead of the proportion in all differences by ethnicity. Nearly one currently being reviewed. other ethnicities. quarter of lawyers identifying as NZ There are some noticeable variations in the gender There are noticeable differences European are partners or directors. makeup of the various ethnicities. A much higher pro- when it comes to the type of legal However, this is often far ahead of all portion of Latin American, Cook Island Māori, Māori practice lawyers are engaged in. other ethnicities. In the 2013 census, and Samoan lawyers are women, while men are in the Lawyers of ethnicities with an Asian 68% identified as NZ European, 6% majority for lawyers of African, other Pacific Peoples origin are far less likely to work as as Other European, 14.9% as Māori, and Tongan ethnicity. barristers, unlike lawyers from 7.4% as Pacific Peoples and 11.8% as The changing ethnic makeup of the legal profession Pacific ethnicities. While over half Asian.

TIME IN PRACTICE 0 to 5 5 to 10 Rest Time since admission, proportion of ethnic group African Ethnicity 0 to 5 5 to 10 Rest African 42% 24% 34% Chinese

Chinese 34% 18% 47% Cook Island Cook Island Māori 28% 28% 44% Māori Fijian 27% 14% 58% Fijian Indian 26% 20% 54% Indian Latin American 47% 27% 27% Māori 29% 18% 54% Latin American Middle Eastern 60% 9.6% 31% NZ European 19% 12% 69% Māori Other Asian 36% 25% 39% Middle Eastern Other 31% 18% 51% NZ Other European 29% 20% 51% European Other Pacific Peoples 23% 18% 60% Other Samoan 28% 14% 58% Asian Southeast Asian 51% 19% 30% Other Tongan 33% 14% 53% Other Not Stated 2% 22% 56% European All Lawyers 21% 14% 65% Other Pacific Peoples

Samoan

Southeast Asian

Tongan

Not Stated All Lawyers

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

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WORKPLACE

Multi- lawyer Sole African Ethnicity firm In-house Barristers* practice African 63% 21% 13% 2.6% Chinese Chinese 69% 19% 5.4% 5.4% Cook Island Māori Cook Island 44% 28% 17% 11% Māori Fijian Fijian 47% 26% 17% 7.8% Indian 53% 25% 7.8% 13% Indian Latin 47% 47% 0.0% 0.0% Latin American American Māori 56% 22% 14% 5.6% Middle Māori 56% 25% 12% 3.8% Eastern Middle NZ European 58% 22% 12% 7.1% Eastern Other Asian 65% 20% 6.0% 7.7% NZ Other 53% 22% 11% 12% European Other Other 54% 27% 12% 5.9% European Asian Other Pacific 40% 35% 13% 13% Other Peoples Samoan 41% 31% 19% 6.4% Other Southeast European 64% 27% 3.6% 2.9% Asian Other Pacific Tongan 43% 22% 22% 4.1% Peoples Not Stated 55% 24% 14% 5.6% Samoan All Lawyers 58% 22% 12% 7.2% Southeast Asian *This information groups QCs, barristers sole and employed barristers. Tongan Not Multi-lawyer firm In-house Stated All Barristers Sole practice Lawyers 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

MULTI-LAWYER FIRMS Employee Director or Partner

Director Ethnicity Employee or Partner 54% 53% African 45% 18% 50% 49% Chinese 49% 20% 45% Cook Island Māori 39% 5.6% 40% 39% 39% 39% 39%

Fijian 35% 12% 37% 37% 35% 35% 35% Indian 37% 16% 34% 30%

Latin American 40% 6.7% 28% 24% Māori 39% 17% 23% 20% 19%

Middle Eastern 50% 5.8% 18% 17% 17% 16% 15%

NZ European 34% 24% 13% 12% 12% 11% Other Asian 53% 12% 9.3% 6.7% 5.8% 4.1% Other 39% 15% 5.6% Other European 35% 19% Other Pacific Peoples 28% 13% āori āori Samoan 30% 11% Fijian M Other Indian African Tongan Samoan Southeast Asian 54% 9.3% Chinese Not Stated Not All Lawyers

Tongan 39% 4.1% Other Asian NZ European iddle Eastern M Not Stated 37% 17% Latin American Southeast Asian Other European

All Lawyers 35% 23% M Island Cook Other Pacific Peoples Other Pacific

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LOCATION GENDER AND AVERAGE AGE BY Other ETHNICITY OF Ethnicity Auckland Major Large Medium Small Rural NEW ZEALAND- African 47% 34% 11% 5.3% 2.6% 0.0% BASED LAWYERS Chinese 74% 23% 1.6% 1.1% 0.2% 0.2% AT 1 JULY 2019 Cook Island Māori 39% 44% 5.6% 5.6% 2.8% 2.8% Fijian 68% 20% 7.8% 1.3% 3.9% 0.0% Indian 68% 24% 3.4% 2.0% 2.7% 0.3% Latin American 27% 47% 20% 6.7% 0.0% 0.0% Māori 35% 38% 16% 6.0% 4.9% 0.2% Middle Eastern 65% 35% 0.0% 0.0% 0.0% 0.0% NZ European 40% 40% 10% 5.5% 3.6% 0.1% Other Asian 68% 28% 1.7% 0.0% 1.7% 0.0% Other 49% 39% 3.6% 3.6% 3.6% 0.6% Other European 49% 35% 8.3% 3.7% 3.8% 0.3% Other Pacific Peoples 48% 38% 10% 0.0% 5.0% 0.0% Samoan 67% 21% 8.0% 3.7% 0.5% 0.0% 1 square = 5 people Southeast Asian 66% 29% 2.9% 1.4% 0.7% 0.0% Tongan 86% 10% 0.0% 4.1% 0.0% 0.0% Not Stated 48% 38% 6.5% 4.6% 3.2% 0.2% All Lawyers 44% 38% 9.6% 5.0% 3.4% 0.2% LATIN AMERICAN African Auckland 12 Women 3 Men Chinese Other Major Large Average age Cook Island Māori 36 y 6 m Medium Fijian Small COOK Indian Rural ISLAND Latin American MĀORI

Māori 23 Women 13 Men Middle Eastern Average age 40 y 9 m NZ European

Other Asian AFRICAN Other 14 Women Other European 24 Men Average age Other Pacific Peoples 41 y 0 m

Samoan

Southeast Asian OTHER PACIFIC Tongan PEOPLES Not Stated 18 Women 22 Men All Lawyers Average age 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% 43 y 3 m

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1 square = 50 people

NON-NZ NZ EUROPEAN EUROPEAN

2178 Women 5079 Women 1758 Men 4933 Men

Average age 42 y 11 m

TONGAN SAMOAN 24 Women 25 Men 119 Women 69 Men Average age 40 y 2 m Average age N O T 41 y 2 m STATED 265 Women MIDDLE 320 Men EASTERN Average age OTHER 29 Women 40 y 11 m ASIAN 58 Men 136 Women Average age 98 Men 34 y 11 m Average age 38 y 0 m

FIJIAN 40 Women 37 Men OTHER Average age EUROPEAN 39 y 3 m INDIAN 410 Women 357 Men 172 Women 123 Men Average age SOUTHEAST 43 y 9 m Average age ASIAN 41 y 1 m 82 Women 58 Men Average age 37 y 5 m

OTHER CHINESE MĀORI 85 Women 263 Women 486 Women 81 Men 182 Men 323 Men Average age Average age Average age 41 y 10 m 40 y 0 m 39 y 10 m PRACTICE September 2019 · LAWTALK 932

PRACTICE Some initiatives to promote diversity in New Zealand’s legal profession

ignored or forgotten. Too often the the conference has been designed In 1876 New Zealand’s 225 prac- legal system leaves Māori in the to bring together those working tising lawyers were all men and of dark, and Te Hunga Rōia Māori has or interested in the legal field to European ethnicity. The next 150 a responsibility to bring Māori out connect, learn and be inspired in a years has seen a gradual movement into the light.” truly Pacific way. towards a far more diverse profes- With a new website released “Our conference is open to all sion. The gender power balance and earlier this year (maorilawsociety. and our membership is not exclu- ethnic make-up of the profession are co.nz), Te Hunga Rōia Māori also sive to only Pacific lawyers,” says still far from equal, however. Making launched the second year of its PLA president Tania Sharkey. “We change and providing support is the innovative Ngā Wāhine Rōia Māori welcome any lawyers who support focus of several organisations in the Mentoring Programme in March. our objectives to join the PLA.” Those legal community. They were asked This supports the mentoring and interested in learning more about for an update on their initiatives and career development of Māori the PLA and/or the conference challenges. women lawyers across the country. are encouraged to go to the PLA’s Te Hunga Rōia Māori has also shown website www.pacificlawyers.org for Te Hunga Rōia Māori its support for recommendations more details. o Aotearoa – The from the Independent Panel’s rec- This year the association also Māori Law Society ommendation of a joined-up family commenced the PLA Speaker Series Famously established in 1988 in justice system, and the report of Te in Schools. John Chadwick’s Rotorua garage, Uepū Hāpai i te Ora – The Safe and PLA members have spoken to the organisation now has a mem- Effective Justice Advisory Group. Pacific students at school assem- bership of lawyers, judges, parlia- The organisation is led by Female blies, careers expos, careers path- mentarians, legal academics, policy Co-President Marcia Murray and way classes and workshop sessions analysts, researchers and Māori law Male Co-President Glenn Tootill, in many high schools this year. students. along with young lawyer, student, “We recently teamed up with Te Hunga Rōia Māori has just academic, family law, legal aid and the Ministry of Education in a completed its annual Hui-ā-Tau, regional representatives. joint initiative to hold workshops from 28 to 31 August in Wellington. for those Pacific students who have The theme was “Nā ko te pō, he rā Pacific Lawyers’ now expressed an interest in law ki tua – Here we are in the night, Association following our Speaker Series in a new day is yet to come”. This Established in 2001, the PLA has Schools,” says Ms Sharkey. was a challenge to attendees to a focus on promoting fellowship “With Pacific Youth – up to 14 explore exciting possibilities in the and mutual support among Pacific years old – now forming the major legal landscape and to utilise their people, identifying and respond- ethnic group with the highest pro- untapped potential to bring forth a ing to the legal needs of Pacific portion of children in New Zealand, brighter future. communities, and promoting and we’re taking proactive steps to “To achieve our goals, we cannot conducting research on any issues nurture and attract more Pacific overlook the wellbeing of Māori in of relevance to Pacific lawyers and students into the profession. This the legal profession, an issue too Pacific people. is about growing the capacity and often kept in darkness and that One of the big events in 2019 will network of Pacific lawyers who form must be brought into the light,” be the PLA’s first-ever conference. only 2.6% of the 14,000 lawyers in Te Hunga Rōia Māori stated in its This is being held from 21 to 23 New Zealand. pre-conference information. “The November at AUT’s South Campus “We must encourage our Pacific theme also applies to those whom in Manukau, South Auckland. youth to get into law, work hard and the legal system has let down, With a theme of “It’s Island Time”, seek to be visible at the top levels of

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our profession. With an increasing Pacific population, moving the legal profession to better resemble the make-up of our population is important.” A third 2019 initiative is the PLA – QC Mentoring Programme which launched on 15 March. “What started with two Queen’s Counsel offering mentorship following the PLA annual dinner last year, has expanded into 11 QCs mentoring 22 intermediate/senior Pacific lawyers,” Ms Sharkey says. “The QC mentors are focused on supporting growth and development and being a source of wisdom, teaching and support. From the PLA perspective, creating connections and building relationships is invaluable.” Ms Sharkey says the QCs have offered to mentor by way of catch-up in person, over the phone, jobs for Pacific law graduates. in the nature of Pacific people. and by email – not only to do with “In light of the extended commit- Our lawyers are most likely to be the legal practice of Pacific lawyers ments of Pacific law students – to daunted, intimidated and uncom- but any ethical issues faced in prac- their immediate and wider family, fortable speaking out about bullying tice or career advice. their church, the Pacific commu- behaviour. There is no place for this “On behalf of the PLA, I acknowl- nity, etc – Pacific graduates do not culture in our profession and it must edge all our Queen’s Counsel men- always have the most compelling of stop.” tors and thank them for their offer academic transcripts. This is a bar- of assistance to our members.” rier to Pacific graduates obtaining NZAL Lawyers employment in the legal profession, NZAL (New Zealand Asian Leaders) Issues facing the Pacific particularly in the larger law firms,” Lawyers was launched in Auckland legal community Ms Sharkey says. on 10 June this year. The founder When asked about the three biggest “We encourage employers to take of NZAL, Mai Chen, says it was issues facing the Pacific legal com- a different outlook and consider established in 2013 to connect, munity, Tania Sharkey says diver- how excellence is defined in terms inspire and grow Asian leaders sity is very topical at present, and of a candidate’s suitability for a across New Zealand, and these although the profession is becoming role and what other qualities/skills values and vision will underpin more diverse and inclusive, there Pacific lawyers will bring to that NZAL Lawyers. She says NZAL is still a long way to go. Diversity legal practice.” Lawyers was founded following of social background, experiences, Ms Sharkey says the third major a conversation earlier this year identity and culture are just some issue can be found in the results with Law Society President Tiana of the qualities that Pacific lawyers of the 2018 Legal Workplace Epati, who asked why there was bring to the profession. Environment Survey, where 35% of no association for Asian lawyers. “The PLA acknowledges those Pacific lawyers surveyed answered Asked about the organisation’s in the legal profession who have “yes” to having experienced bully- initiatives, Ms Chen says the big- connected with our association to ing in the past six months: the top gest was the June launch which promote and encourage meaningful ethnic statistic in that category. showed a great deal of interest in progression in this area including “Bullying is not a problem isolated the group and also support from the Kayes Fletcher Walker, the New to the large law firms – the majority profession for the group’s vision and Zealand Bar Association and of our lawyers are not working in rationale. Shortland Chambers,” she says. the larger law firms,” she says. On 2 September, NZAL Lawyers Another issue is the availability of “Humility is a virtue engrained is hosting its next symposium, and

69 PRACTICE September 2019 · LAWTALK 932

CPD credits will be available for those who those who are born in mainland China, as countries such as Hong attend. This will feature an address by Kong, Singapore and India are, or were, part of the Commonwealth, Justice Graham Lang, on “How to be effec- and have adopted a common law system that is closer to that in tive in the High Court”, and a short address New Zealand,” she says. from barrister and solicitor Gurbrinder “Many Chinese lawyers in New Zealand arrive here as young Aulakh on key differences between Indian adults or even as adults before qualifying to practise law, which and Chinese clients’ understanding of the increases the challenge of making this transition, in order to New ZeaIand legal system. effectively advise and advocate for their clients.” The event, entitled “Developing your Ms Chen says the second biggest challenge is a corollary to Skills”, will also feature a panel of Asian the first. lawyers including Ruiping Ye who lectures “It is lawyers acting for litigants from distant Asian cultures at Victoria University of Wellington School explaining this radically different legal and business culture to of Law and Zong-Pei Zhao, Special Counsel their clients, and assisting them in understanding the New Zealand at Chen Palmer, who will be talking about court system and framework for resolving disputes. the rule of law in China, and how it differs “It is critically important that lawyers ensure these concepts from the New Zealand rule of law. and ideas are adequately explained, as Asian clients will often The event will provide guidance for: view the advice that they are being given through the lens of • Lawyers who are not Chinese, to help their experience and understandings, which can lead to the them effectively advise Chinese clients, misinterpretation of legal advice.” and to negotiate effectively with Chinese She says the last, and perhaps biggest challenge, is the need to parties on the other side of a transaction; adequately equip our courts and interpreting services to ensure • Chinese lawyers, to better understand that culturally and linguistically diverse parties – including, but the differences between the Chinese and not limited to Asian parties – receive equal access to justice in New Zealand rule of law when advising the courts. Chinese clients about the New Zealand “As New Zealand becomes increasingly superdiverse and the courts; and number of people living here who speak little to no English • Those presiding over proceedings involv- increases, it is of vital importance that interpreting services are ing Chinese parties or administering of a sufficiently high quality and availability to ensure equal access justice to Chinese parties. to justice for all. There will also be an interview between “It is also increasingly important that courts invest in the the first mentor and mentee brought infrastructure and support needed for culturally and linguistically together by NZAL Lawyers. diverse parties to effectively navigate the foreign and frightening “The last big initiative for NZAL in court system they may find themselves forced to be involved in. 2019 will be a joint event between NZAL Judges and lawyers will also need to grow their cultural and Asian Lawyers and the Māori Law Society in early capability so as not to misunderstand Asian parties.” November,” Ms Chen says. “This initiative between the two associations will allow The Gender Equality Charter networking between those lawyers with Launched at Parliament on 12 April, the New Zealand Law Society’s clients wanting to do business with each Gender Equality Charter provides a set of commitments around other to make connections but also for gender equality aimed at improving the retention and advance- Asian lawyers to learn more about the ment of women in the legal profession. Treaty of Waitangi and for Māori lawyers By signing up to the charter, signatories commit to lead from to learn more about Asian cultures.” the top, make a plan and take action, and measure progress. The specific commitments include tackling unconscious bias, encour- Challenges facing the aging flexible working, closing the gender pay gap and promoting Asian legal community equitable instructions. Asked about the three biggest challenges The charter is open to the whole legal profession. Law firms, for Asian lawyers, Mai Chen says one in-house legal teams, sole practitioners (including barristers sole) major challenge is that faced by those and barristers’ chambers can all sign up to signal their commitment who are born in a very distant culture to to gender equality and inclusion. New Zealand, and the transition to a very By August 2019, 133 legal workplaces had signed up to the charter. different rule of law culture. Further information is available from the Law Society’s website “This is a challenge faced particularly by under Law Society services/ Women in the Legal Profession. ▪

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PRACTICE Recruiting and retaining staff Standing out to keep good employees

BY TRACEY CORMACK

“So, be authentic. Don’t continu- also a problem if employers only “Any firm that doesn’t see their ally re-create yourself and try to do benchmark remuneration when staff as their number one asset will everything your employees want or they are recruiting from outside not prosper.” – Sheryll Carey, ALPMA you will kill your business. You need their organisation, but not when NZ committee member. balance. If you are a family law firm looking at remuneration for current According to the 2019 ALPMA ask what makes that attractive and employees. The gap gets quite large (Australasian Legal Practice go with that.” quite quickly for current employees Management Association) NZ Legal (who are on individual employ- Industry Salary & HR Issues Survey, Money ment agreements) who are then retention and attraction were Kirsty Spears is the director of forced to look outside the organ- the biggest challenges for 94% of McLeod Duminy Careers and spe- isation in order to obtain market responding legal firms. The survey cialises in legal recruitment in New remuneration. provides salary data each year, as Zealand and overseas. “The gulf between internal sal- well as information on metrics such She says the legal profession is aries and what the employee may as bonuses and diversity. generally very conservative and be able to achieve if they go to There is a far wider range of starting salaries are “surprisingly market soon becomes unpalatable careers open to lawyers today than low”. Graduates are paid $40- but often employees are unwilling 20 years ago, technology is con- $50,000 per annum “if they are to push the remuneration constantly changing and the increase lucky”, she says. versation with their employer. If in double degrees makes candidates “Other professions such as the employer doesn’t proactively more attractive for a wider variety accounting or engineering pay a address it themselves the result of roles. lot more. Law firms compare them- is undesirable churn exposing the One way to address these issues, selves to other law firms, when they business to the direct and indirect according to Shane Mackay, General should be comparing themselves costs of recruitment and onboard- Manager of OCG, recruitment to other industries. If you are not ing, ie, reduced productivity (and consultants, is to stand out as an paying enough, or are not flexible billings), training and management employer. enough, or not offering attractive time etc. The actual costs associated “Although you cannot be benefits then this is a risk. with undesirable churn will usually everything to all employees “I have had a lot of conversations exceed any savings in remuneration you need to ask, ‘How can I be with law firms who seem to be made by not benchmarking your different?’.” happy to be ‘in the market’. But internal salaries to market.” He says some employers are as they set their own ‘market’ this doing this well by picking one or means that salaries and benefits Benefits package two ways to stand out and be an are often not very exciting. Only a Kirsty Spears says a survey con- employer of choice. For example, he handful of firms compare the sala- ducted by her company found that points to Perpetual Guardian which ries they offer to other professions the benefits that employees were has introduced a four-day working outside the law, but there is no real being offered were very standard week and found that retention and shift or change in that overall.” and in some cases not benefits at engagement has shot through the Kirsty Spears says law firms also all. The most commonly cited ben- roof. “They are the leaders of the need to look at their salary bands as efits included paying for practising pack, but what if other organisa- legal salaries are stagnating. Moving certificates and continuing legal tions follow their examples? In up a tier looks like a pay rise, but the education, providing a cellphone two years this might just become bands are staying the same. and hosting social functions such the norm,” he says. Shane Mackay says there is as a Christmas party.

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“While a party is nice it will not make a difference to whether an employee stays at a firm or not,” she says. Employers could be innovative in the benefits they offer. For example, a lawyer who is working 12 hours a day might appreciate their employer paying for a cleaner, or My Food Bag or home internet. Other options she suggests include paying extra KiwiSaver (especially for young employees) or paying for dry-cleaning of work clothing and tailoring wellbeing packages (eg, gym membership). Such perks create goodwill and are a minimal cost to an employer compared to an across- the-board pay-rise. In seminars held for legal employers following the ALPMA survey, discussion also considered training lawyers to be multi-skilled. “Lawyers love to learn something new. They don’t want to come out of law school and get stuck on one track,” Ms Spears says. “This is a double-whammy opportunity and enables the law firm to ride the peaks and troughs of work a little better, while keeping lawyers motivated.” However, she says, the number one factor that candidates mention as important is extra leave. Overseas it is standard to offer five, six or seven weeks’ annual leave. Lawyers come back from working overseas and find the four-week statutory entitlement to be a bit of a shock, especially when several days of that must be taken during the Christmas shut-down. Careful recruitment “There is a great emphasis on academics during the recruitment process. After a few years those things are not so indicative of ability and it is often not a fair comparison,” says Kirsty Spears. “Some people have had balance early in their careers. For example, they may to work in paid employment while at university and be interested in climate change and environmental may not have lived at home or may have had other concerns and if you want to be an employer of choice responsibilities while studying. Academic achievement you need to take this into account. “Tell employees what says little about candidates’ other skills or about them you are doing to be environmentally friendly.” overall. While academics can’t be ignored, perhaps some “At the other end we have an ageing workforce and context would be useful. In a tight market they might there is still a lot of prejudice against older candidates. consider allowing candidates to showcase their current Many people were affected by the global financial crisis. knowledge through additional testing.” They might have been looking forward to a comfortable Damian Hanna is an associate director of INSIDE retirement, and then had to rethink after the GFC. There Recruitment and says that for both parties there need to is now a whole generation that can’t retire. While they be more transparent and honest recruitment processes. have the same financial drivers to be employed as their “Ask the right questions about what is important to the younger peers and more experience, they are up against organisation. Ideally, try and meet the team by going conscious or unconscious bias in the workplace. out for a social function before the hire. More emphasis “There is often also a perception that older employees needs to be put on the cultural fit within the organisation are not technologically advanced and are not driven and the team, for both sides.” in the same way as their younger colleagues,” he says. Mr Hanna says many young lawyers are often work- “However, research doesn’t support that opinion and ing their ticket in New Zealand to get a prime position they bring a range of other skills, interpersonal maturity overseas. He says technology has made it easier to find and experience to the table. The desire to have interesting and recruit lawyers through websites such as LinkedIn. work and perhaps have flexibility is a driver across all age The bigger problem is when employees decide to leave groups, it’s certainly not only an issue for older workers.” after a short time to go to firms within New Zealand. Sheryll Carey is the General Manager of Lowndes OCG’s Shane Mackay says the legal workforce is chang- Jordan and a committee member of the New Zealand ing and young people are more holistic and demand chapter of ALPMA.

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there is not a lot to learn after one need to know that appreciation is year or if an employer has failed to very important. Junior lawyers mentor or develop their staff then know that they aren’t going to get employees will look to manage everything right, but they don’t and develop their own career path. want to be made to feel stupid. They Employees want and need better need to be respectfully told when managers, internal development something is incorrect, supervised and clear career pathways. and not made to feel inadequate. “There was a time when jobs were “Junior lawyers also want to know for life, but that changed at least that they are part of something 25 years ago, when organisations bigger, that their job is important became more stakeholder and rev- and meaningful and this may mean enue focused, there was a drive to meeting clients earlier than they efficiency, increasingly lean organ- normally would.” isations that no longer provided internal career pathways and less Changing expectations time and resources dedicated to Mr Hanna says the workforce is individual employee development. changing and the expectations of The emotional contract and loyalty younger lawyers are changing, but in the employee/employer relation- at all levels employees are now ship diminished and employees happy to turn down opportunities learned that to get ahead they even in a tight market. He says needed to manage their own career employees are prepared to take development. A typical career now the risk and change jobs within a spans a portfolio of employers with short period of time. For him the employees often leaving and return- most quoted reason for leaving is ing to an employer multiple times the lack of adequate training and across the course of their career. The the feeling that they have to ‘fly by old paradigm that once they leave the seat of their pants’. they are dead to you is long gone Sheryll Carey says issues that with enlightened employers.” have surfaced over the last two The quality of managers is a key years are having an impact on firms’ to retention. “How many managers, ability to retain staff. “I think more firms need to recruit especially in law firms, have been “In spite of the Bazley report at a graduate level and make a trained to think like managers or are and the #Me Too movement, I still greater commitment to training trained to be effective managers? It hear of some firms that are slow to staff,” she says. typically doesn’t happen and with change their 20th century ways of “That will widen the pool in the unrelenting focus on billable thinking. Culture comes from the years to come, and also gives firms hours they have no time to support top and partners must realise that a chance to offer recruitment after and develop their people. their attitudes and actions shape young lawyers return from overseas. “Time-billing is a preoccupation the firm. Firms also need to evaluate what with employers of lawyers and “The cost of replacing staff is huge, their culture is and make sure they accountants. Young people don’t not to mention the downtime, so walk the walk.” want that and might decide to leave any firm that doesn’t see their staff because of this way of working. The as their number one asset will not Support and retention old fashioned ‘I did it, you can’ – atti- prosper. I don’t think employees’ An OCG white paper “Responding tude needs to go if you are going to attitudes to wanting different ways to the Changing Workforce” found attract and retain the best people.” of working is limited to lawyers, employers were more in favour Damian Hanna believes that but law firms seem to take longer of longer tenures than employ- employers should give employees to implement the changes than the ees were. While most employers clear instructions, and an open door corporate world. agreed that 2-3 years was the right to ask when necessary. “At the end of the day we still have amount of time, 22% of employees “You need a clear understanding to respond to client demands and considered that 1-2 years’ tenure was of what that particular employee urgency never goes away. Certain acceptable. can do, to ensure they are not given work types are easier to cater for Shane Mackay says organisations work that is way under or way over with regards to flexibility than want employees to stay for at least their skill level,” he says. others, and the size of the team also two years, but if employees think “Recognise effort. Good managers bears a big weight.” ▪

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PRACTICE Having the philanthropic conversation Is it good for business?

BY ELEANOR CATER

prefer meaningful conversations that go beyond the Behavioural Insights Report) found While many people don’t think technical. These ‘soft skills’ are quite different from that a professional adviser’s role is of themselves as philanthropists – the technical skills which are learned through formal key: twice as many people are likely after all, it’s a word that many align education,” says Mr Colligan. to leave a bequest or philanthropic with the rich and famous – we find “If through your work you can listen, you can connect, gift in their will if it is suggested that most people do want to make you can provide a feeling of the client feeling valued and to them as an option and almost a difference in the world. understood, it creates loyalty. And loyalty is certainly three times as many people will And in our line of work we find good for business.” leave a bequest if their professional that philanthropy, or good old-fash- Mr Colligan uses the words “listen” and “trust” a lot advisor suggests that it’s something ioned Kiwi generosity, gives people when referring to business relationships. He says that other people do, so normalizes the great fulfillment in their estate professional advisers would do well to start early by conversation. planning. connecting with their clients, and feeling confident in And, with the biggest inter- Conversations that go much doing so. generational wealth transfer the further than discussing technical Professional advisers we work with across New world has ever seen from the baby aspects of law and strike right at Zealand often say the following about having the phil- boomer generation to the next the heart of a client’s core – their anthropic conversation: starting to take place, now is the philanthropic aspirations – can lead • It offers a significant point of difference in their time for professional advisors to be to fulfilled and loyal clients. advisory role, brushing up on those ‘soft skills’ Bill Holland, long-time partner • It offers a more holistic financial planning approach, and starting these meaningful with Holland Beckett Law, says: • It gives professional advisers the opportunity to conversations with their clients “My experience has been that cli- connect with a client’s core aspirations and values, about their philanthropic dreams ents appreciate being advised of something which they say really strengthens the and aspirations. their options and a philanthropic relationship, It’ll be good for business after all. conversation with the right clients • It creates loyalty. September is Wills Month and leads to an improved relationship community foundations all around – and can easily lead to business The research NZ provide free resources and growth.” A Harvard Business Review study from 2015 concluded philanthropic expertise to lawyers Steven Colligan, registered that emotionally connected clients are more than twice and professional advisors around psychotherapist and business as valuable as highly satisfied clients, as they buy more, having that crucial philanthropic consultant, has spent many years are less price sensitive and are more likely to recommend conversation. See more at www. in his professional life considering you. nzcommunityfoundations.org.nz ▪ human behaviour and how we Research also indicates that clients actually want to connect. He says that while clients have the philanthropic conversation early on with their Eleanor Cater  eleanor@ want their professional advisers to professional advisers. American research (2013 US Trust communityfoundations.org.nz ‘know their craft’ it’s the soft skills, and Philanthropic Initiative) found that high net worth heads Community Foundations of like those that you would employ individuals prefer to have the philanthropic conversation New Zealand where she works with in a conversation around a client’s in the early stages of the adviser relationship and that foundations across New Zealand giving aspirations, that are impor- they actually prefer to discuss their values and passions building community funds and tant and that will really differentiate regarding giving, rather than the technical aspects and encouraging generous people to your business. tax advantages. be a part of shaping their own “We are all people first, and we And studies from the UK (2016 Legacy Giving and community’s future.

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PRACTICE Global trends for the in-house legal profession

BY JEREMY VALENTINE

privilege for in-house lawyers and the need to address In LawTalk 931, August 2019 our Executive Manager, this for the members of their association. Gabrielle O’Brien, highlighted some of the key themes It is easy for in-house lawyers in New Zealand to forget that came through in the Deloitte/ILANZ in-house trends how fortunate we are to operate on the same basis as our survey (“In-house legal – A force to be reckoned with”). counterparts in other areas of the law. This is certainly Curious to understand whether there were any parallels not something to be taken for granted though. A case with our in-house counterparts in other jurisdictions, currently before the Auckland High Court – NZ Iron Sands we reached out to some of our colleagues around the Holdings Ltd v Toward Industries Ltd [2019] NZHC 1416 globe to see what was on their minds and asked them highlights that privilege for in-house lawyers will always to share their thoughts. be subject to scrutiny and many in-house lawyers will What quickly became apparent was that wherever you be following the next steps in this case closely. practise as an in-house lawyer, there are both similar Thavakumar (Kumar) Kandiahpillai, the President of opportunities and challenges. the Malaysian Corporate Counsel Association and Group Head, Legal and General Counsel of Sapura Kencana Growth in influence within varying Petroleum, also comments on the acceptance of in-house regulatory frameworks lawyers as an integral part of management planning, The growth, in numbers and in influence, was com- strategy and decision-making rather than distant or ad mented on in several jurisdictions. Eric Amar, Legal hoc advisers as well as the rapid growth in in-house Director of the Bollore Logistics and a governance counsel. “I reckon the numbers have grown tenfold in member of the Association Française des Juristes d’En- the last 15 years,” he says. treprise (AJFE) – the French Association of Company In the context of an unregulated environment though, Lawyers, notes there has been a tremendous change Mr Kandiahpillai expresses some concern. “The profes- in the influence of in-house lawyers in France over the sion is unregulated and there are no objective standards, last 10 years while also highlighting a paradox. “Being unlike practising lawyers. While the tremendous growth influential puts us in the middle of the business and provides huge opportunities, the risks too increase, less of an ‘arbitrator’ than before.” perhaps exponentially.” While noting that there are more Several of our international counterparts commented opportunities to be associated with on the more complex environment that in-house law- big projects and strategy, Mr Amar yers are operating in with the expansion of regulation, emphasises the skills required from compliance and data protection requirements. Again, a in-house lawyers to navigate these What quickly strong echo with the themes that came through in the opportunities whilst managing com- became New Zealand trends survey. pliance and ethical considerations. apparent was Angeline Lee, President Emeritus of the Singapore Stéphanie Fougou, Honorary that wherever Corporate Counsel Association and Vice President of President of AFJE, and Company you practise the legal secretariat at Singapore Press Holdings, notes Secretary of Accor Hotels, also notes as an in-house that new legislation regarding AML/CFT and anti-bribery the increasing influence of in-house lawyer, there and corruption compliance all reflect this in her local counsel although is also aware that: are both similar jurisdiction. “there’s still lots of work to convince opportunities that the law is not just execution or and challenges Globalisation and the digital future litigation but of value to strategy”. For Mr Kandiahpillai, globalisation presents huge oppor- For both Eric Amar and Stéphanie tunity. “Globalisation and technology makes physical Fougou, a key consideration in locations less and less relevant. Legal hubs and in-house France is the omission of legal lawyers can be located anywhere,” he says.

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There was general agreement that technology should of the profession, there is also an acknowledgement be viewed as an opportunity more than a threat with a that a legal career is rewarding but can be challenging consensus that the future was more about understand- whatever part of the profession you work in. ing and upskilling to better realise the benefits. This is Beth Anderson notes “We need to continue to cham- coupled with the recognition that for the organisations pion best practice in connection with emotional well- we represent digital programmes are commonly a key being and challenge the stigma around mental health, strategic programme. to help ensure that people can maintain good health In Singapore, Angeline Lee cites the example of the and access support if they need it.” Ministry of Law, Law Society of Singapore, Enterprise Paying attention to work environments and seeking Singapore and the Infocomm Media Development to create optimal working conditions that recognise Authority launching a SIN$3.7m funding scheme that we are human first and employees second, is not just allocates funding of up to $130,000 annually for each something we aspire to here in New Zealand. Singapore law practice. “Technology is transforming the landscape for lawyering in house and in private Sharing experiences and lessons practice,” she says. While the regulatory environments may differ and there may be challenges that we don’t have in common, it People, progression and seems that there are many issues that we share with protecting wellbeing our international counterparts. Further, the trends or Career progression and opportunities for in-house law- developments that develop in other jurisdictions make yers is on the mind of our counterparts in Scotland, their way here. France and Singapore. Beth Anderson, Head of Member It has been useful over the years to share ideas on Engagement for in-house lawyers at the Law Society of initiatives to support in-house lawyers through our Scotland notes: alliance with In-house Counsel Worldwide (ICW) – an “A lot of in-house teams have a relatively flat structure. “association of associations” for in-house lawyers. In order to retain good people, managers of in-house We have learnt much to better serve the needs of our teams increasingly need to find innovative ways to in-house profession and ultimately the organisations ensure bright young lawyers have access to sufficient we represent. development opportunities to ensure their career ambi- Next year we will have the tions aren’t restricted.” opportunity for members to also Stéphanie Fougou notes that in France the move hear more from in-house lawyers toward a more strategic role and positioning of the legal working in other parts of the world team is driving a need for higher levels of soft skills for While the when ICW representatives, all prac- in-house lawyers. regulatory tising in-house lawyers, join us in Angeline Lee is conscious that there is an oversupply environments Wellington on 20-22 May for the of legally trained people in Singapore and this presents may differ and combined 33rd ILANZ conference a different set of challenges with no permanent roles there may be and ICW World Summit. Look out for some and more varied work arrangements. Growth challenges that for information updates on the in the technology, banking and real estate industries we don’t have conference at ilanz.org provide opportunities though. in common, “Lawyers in-house must be brave and forward looking it seems that Jeremy Valentine is a member …. we should always be a step forward to lift our corpo- there are many of the ILANZ Committee and is rate business to a better risk managed and sustainable issues that we General Manager – Risk, Legal and future,” she says. share with our Governance at the Co-operative While optimistic for the future of the in-house profes- international Bank. Jeremy is also Vice President sion and excited by the growing influence of this part counterparts of ICW.

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PRACTISING WELL TALKING ABOUT MENTAL HEALTH Anxiety happens to me, and asking for help makes me a better lawyer

BY HENRY CLAYTON

Writing this here, and with my I have suffered through periods name and photo included, I worry of high anxiety at times in my career. you’ll all think I’m a nervous wreck. I’m not sure if that’s the correct term I’m not. I like the exhilaration of so I’ll tell you what I mean. dealing with high pressure situ- It’s more than just worrying ations and doing difficult work. I about things. I was trained to quite like a bit of stress. These peri- worry about things – to check and ods of high anxiety have happened re-check my work. And sometimes only a handful of times in my career, the self-checking process finds mis- and usually when I’m also worry- takes, and that just reinforces the ing about some genuinely stressful need to check and re-check. Some things outside of work. But when amount of worrying is good. This they do happen, they’re a problem. in-built self-doubt makes us do a Too often I have suffered through better job. But it can be an occupa- this high anxiety, working hard to tional hazard too. appear that I’m still in control. But For me, the anxiety comes when suffering through it is awful. I feel the balance between self-doubt and exhausted and generally have a low self-confidence goes awry. When mood. And the quality of my work ▴ Henry Clayton the healthy paranoia becomes probably suffers too, which makes unhealthy paranoia. me feel even worse. My high anxiety starts when I’m constantly thinking back on work Asking for help I’ve done and worrying about any It took me too long to find the minor imperfection or irrelevant simple solution that works for me: detail. I can’t stay engaged in asking for help. And not just asking a simple conversation at home for help on the issue that led to the because my mind has already anxiety, but announcing how I’m wandered back to thinking about feeling. work. There’s a fear of having A while ago I was working on missed things. I’m still checking a high pressure project and one and re-checking in my head days matter within it started to go badly. after an email has been sent. It also It was the sort of challenge I would comes as endlessly worrying about normally respond well to, but this how future events might play out. time it seemed to tip me off balance. I can get physical discomfort in I could feel my stomach churn just my stomach and a dry mouth. I can reading the subject line of each become tense and overly sensitive new email arriving in my inbox. My to background noises like pen clicks. confidence was sinking and my fear It makes me very irritable. This is was rising. ▴ Sarah Taylor more than normal worrying. I was annoyed at myself. “I can

77 normally handle this!” Then, after a few just kept working through a period of high days of struggle, I took a proper breath. “I anxiety. can normally handle this. So what’s wrong? I’m not in control anymore. Whether I like People are kind it or not, that bad anxiety is here.” But speaking up was so much easier than I met with the relevant manager of my that. My pride had been holding me back. Michael client team. (This was in an in-house role. No one has thought less of me for being If I were in a firm, I think I’d have spoken honest about my feelings and asking for Reason to a supervising lawyer or peer.) I told him help. People are kind, and we all know how I felt out of control and suggested that hard it can be. Barrister maybe someone else could take over on Plus, with the help of all the ‘Practising the matter. Well’ articles and great conference speakers Specialist in tax, UK pensions, “Of course,” the manager said, and he over recent years, I realised this was all superannuation, trusts was more concerned about me than the okay, and maybe even normal. Sometimes and corporate, civil legal work anyway. I left that conversation that productive worrying, which helps me aid provider. feeling high. It’s only when you relax you be a good lawyer, can get the better of me. Practising in England realise how tense you were. I kept work- And when it does, I still have the strength and New Zealand. ing on the rest of the project confidently, and judgement to acknowledge I’m feeling and probably did my best work yet. That out of control, to know the work and my wouldn’t have happened if I’d tried to health matter more, and to ask for help. struggle through. I am looking after the client and looking It was tough for me to ask if I could step after myself, and that’s what good lawyers aside. I want to be a lawyer that is sought do. after (and I still can be). While I was trained Maybe you’re reading this article and you michaelreason.com to worry about things, I was also trained don’t get it. Fair enough. There is still a mes- 021 156 6156 to display control and confidence, to keep sage for you, and for all readers. Please help [email protected] worry hidden unless the client needs to to build and maintain a culture where we know. So earlier in my career I would’ve let lawyers admit to their colleagues when

78 PRACTISING WELL

Tacos fall apart and we still love them

BY SARAH TAYLOR

I started this series a year ago with the aim of destigma- tising mental health issues and normalising conversations about mental health in our profession. It’s a work in progress, but feedback I’ve received and conversations I’ve been having indicate that these articles are resonating and we’re on the right track. 23 – 29 September is Mental Health Awareness Week (MHAW). Mental health is something we need to think about every day, not just during MHAW, but MHAW provides a great opportunity for us to pause and reflect on the state of our own mental health and of those around us. I’ve had particular cause to reflect on my own mental health recently. A few weeks ago, I fell apart. It wasn’t work-related but it affected my ability to work. I had panic attacks (omg, hideous) and some days I couldn’t see my computer screen because I was crying too much. Fortunately, I work in an environment where I could tell my colleagues without fear of judgement or negative repercussion. They were amazing. They listened, shared my workload, regularly checked in on me, and made it clear that my health and recovery were far more important than any work matter. they’re struggling. Especially for our young Not everyone has this. I don’t know how people get through lawyers, who have high expectations of tough times while trying to work in an unsupportive environment. themselves and feel they are competing I want to echo Henry’s key message about building a workplace with their peers. Please value those young culture, nay a profession, where we can admit to each other if lawyers who show the good judgment to we’re struggling. A lot of us became lawyers to help people. We say when they’re not coping and have the can start by helping each other. There are not many work matters humility to put the client’s work ahead of that are more important than someone’s health. their own image. If I’m to throw down a gauntlet this MHAW, it is to do one We might need to display control and thing (at least) to help yourself or someone at work. It doesn’t confidence to our clients, but not to each have to be big, it doesn’t have to be perfect, and it doesn’t have other. to be led by senior management. Don’t over-think this. It can I worry about the mental health of law- be as simple as asking a colleague if they’re okay. If they’re not, yers. We all want to be good lawyers. We suggest a walk, a talk, a coffee. If they want to talk, listen. If they all want to appear strong. But sometimes need help, help them get it. Regularly check in on them. If you’re it’s just too hard and that’s okay. the one struggling, tell someone. We can’t be too proud, or too competi- We’re not weak for having problems or needing help. We’re tive. Especially our young lawyers. strong for admitting we do. Ask for help. It’s okay if you fall apart sometimes. Let your colleagues know they can ask Tacos fall apart and we still love them. ▪ for help. Being a good lawyer – a lawyer who cares Sarah Taylor is the co-ordinator of this series, a senior lawyer, and – is hard. But it is much easier in a team. ▪ the Director of Client Solutions at LOD NZ, a law firm focused on the success and wellbeing of lawyers. Henry Clayton works as an in-house government lawyer in Wellington, where If you’d like to contribute to this series, please contact Sarah: he has been practising law for the past [email protected] 10 years. He lives in Lower Hutt with his partner and two young kids. www.mhaw.nz www.mentalhealth.org.nz

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PRACTISING WELL Coaching: a new approach to address wellbeing and performance

BY SHA PERERA

In my work with local legal firms I have identified The 2018 Workplace Environment common issues that lead to overall dissatisfaction at Survey carried out on the legal profession work. These include the overwhelm created by keeping up showed that there’s never been a more with legislative changes, increasing demands from clients, opportune time to focus on lawyers’ workload issues, constant interruptions, deadlines and welfare and that real change to improve balancing the time available with priorities and quality wellbeing in the workplace must come. of work. This makes helping lawyers at all levels Managing work/life balance is also a huge concern and to manage stress, and raise motivation and it can be easy for work to take over, with employees losing job satisfaction so much more important. sight of what is important to them. Coaching helps to find Changing the workplace culture goes a practical ways to maintain a professional standard while long way to achieve those goals. What is getting back some balance in life. Solutions are proactive, required from our leaders today is very positive and future focused. different from the traditional form of I work with forward-thinking organisations with leaders leadership and requires a new approach to who demonstrate a willingness to invest in the health organisational development and employee and wellbeing of their workers to see them thrive in a wellbeing. high-pressure environment. These firms recognise the One such approach that is gaining more need for additional expertise to support and grow their traction is the process of coaching. teams and they want something that has the potential to create some lasting results. It’s about retaining talent and A personal development increasing the wellbeing and capability of their people. partnership In essence, coaching is a form of personal Law firms using coaching development. It’s a partnership between One firm using coaching for their team is Takapuna-based the coach and client that assists to bridge Armstrong Murray. We started working together in March the gap between where the client is now of this year, with all members of staff having some coaching and where they would like to be, far more sessions over a four-month period. effectively than if they worked alone. What is “It goes without saying that your staff are your most It’s a creative, thought-provoking, learn- required from important asset,” says John Armstrong, one of the partners. ing conversation that helps to maximise our leaders “We’ve worked hard on having a positive, productive and personal and professional potential. My today is very enjoyable working environment, so are always looking for clients appreciate the space to think and different from ways to build on this. We heard about coaching; how it can reflect on their situation and the opportu- the traditional help people to get the best out of themselves, by helping nity to speak openly with someone from form of them to deal with challenges that may have been holding outside of the organisation. leadership and them back, to recognise their strengths and weaknesses Whether it’s for current and emerging requires a new so that they can find a better focus. We want our staff to leaders, new employees, support staff or approach to be able to wring the maximum satisfaction out of being those transitioning into retirement, the organisational here and doing what they do. Coaching has certainly coaching approach is used across the development assisted that.” board to improve professional skills, team and employee Morton Tee is another Auckland legal firm that is using engagement and employee wellbeing. wellbeing coaching to support their team.

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“Our firm was entering a stage of tran- improve professional aspects of their work Choosing a coach sition and partner succession and we felt and implement strategies to achieve their So, how does an organisation choose a coach? it important that our new team members goals. Clients are able to develop practical As coaching is still an unregulated pro- have the opportunity to assess their per- skills in communication, time management fession most organisations look to hire a sonal and professional life-work balance,” and improving work habits. coach with professional credentials. An says partner Stephen Tee. And these are just some of the bene- International Coach Federation (ICF) cre- “Coaching helped us to identify areas fits of a coaching conversation which is dential indicates compliance against rigor- that created stress and address issues very different from consulting and giving ous education and practice requirements, within our firms’ procedures. It also ena- ‘expert’ advice. supported by the set of core competencies bled the team to examine and commu- In coaching, the client is seen as the and a code of ethics designed to protect nicate openly with each other and make expert in their life/situation. Through the and serve buyers of coaching. change a positive learning process.” conversation, the client discovers what Coaching is on the rise in New Zealand Coaching helps to raise self-awareness, they need to do to move things forward, and while some traditional wellness pro- consider different perspectives and gain which may include the courage to seek grammes struggle to create sustainable clarity about a situation, so the necessary the advice of other professionals or iden- change and a return on investment, coach- action steps can be taken to achieve the tification of gaps for further professional ing has the potential to make a difference to desired outcome. development. both employee wellbeing and performance Coaching is also very different from and create the behavioural transformation Individual focus counselling or therapy. There is no need required for long-term benefit to the indi- The impact of coaching is heightened to delve into the past. Instead, the aim is to vidual and the organisation. ▪ because it is tailored to the needs of each establish current and future desired state. individual. This personalised approach to The focus is on the strengths of the indi- Sha Perera  sha@emergeandtransform. managing stress and improving capability vidual and moving forward in a positive com is an ICF credentialled Auckland- is far more effective than a ‘one size fits and proactive way, rather than focusing based career progression coach. She all’ approach. on the negatives. has over 20 years’ experience in com- While putting in place effective health While the profession of coaching is munications and marketing, education and wellbeing practices is of utmost impor- still fairly new, the process of coaching is and business management and operates tance, coaching also supports individuals to firmly grounded in neuroscience, positive Emerge & Transform Coaching – www. raise their levels of emotional intelligence, psychology and adult learning theories. emergeandtransform.com.

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PRACTISING WELL Are your thoughts making you sick?

BY RAEWYN NG

are in. They are all the same cells, Up until very recently it was just expressed differently. widely accepted that our destiny, The environment of the cells (that our health, our life, was determined is, our body and more specifically by our genes. We accepted that the the fluid in our body – the blood) sort of health challenges or diseases is controlled by hormones released we might face in the future were by the brain. The brain releases written in our genes and that it hormones that correspond with couldn’t be changed. how we see the world, and this While it’s true that we can’t influences the chemical composi- change our genes, there’s evidence tion of the cell environment, or the suggesting that we have more con- blood, and therefore how our DNA trol over our fate than we previously is expressed. believed. As Dr Lipton explains, as we inter- It is now thought that as much pret the world we feel emotions and as 90% of disease has nothing to do hormones are released. For example, with genetics and more to do with love is associated with hormones lifestyle choices, environment and like dopamine, the feel-good hor- perception. mone; oxytocin, the bonding hor- The concept of the mind-body mone; and growth hormone, which connection is not new and in recent rebuilds our body and maintains years the idea has become more health. The hormones affect the mainstream and acceptable. While blood chemistry and adjust the awareness that our thoughts can expression of cells. You’ll notice impact our behaviour and health is people in love, with that ‘glow’ – sleep is disrupted, digestion slows, only one part of the overall picture of good health. Contrast this to heart rate and blood pressure rises, of wellbeing, it’s a part that we can’t someone in a state of fear, releasing to name a few. While we can cope continue to ignore. stress hormones and inflammatory with these changes in the short agents, the blood chemistry is very term, long term stress compromises A community of different, and the expression of the the body’s repair functions and 50 trillion cells cells adjusts accordingly. leads to disease. Stem cell biologist and author If a stress response can be trig- of The Biology of Belief, Dr Bruce The impact of stress gered by just our thoughts, creating Lipton, explains it like this: We are Stress, whether it’s real or perceived a destructive environment for the each made up of a community of (for example, if we just think about cells in our body, making us sick, it 50 trillion cells, floating in fluid and that stressful situation from last follows that our thoughts can also encased in skin. When you change week) has the same effect on the make us well. the chemical composition of the body. It creates the same cascade of When it comes to our thoughts, fluid it changes how those cells hormones and chemicals, changing we can have anywhere between develop even though they have the our body chemistry without even 12,000 and 60,000 thoughts a day, same genetic information. Whether being in that stress situation. Simply and while we may think we’re in the cells turn into bone, muscle, fat, by thinking about it, we’re affecting control of what we think, we should etc, is determined, not by the genes, our cell expression. think again. Some research suggests but by the environment those cells Stress changes body processes that as much as 98% of our thoughts

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are influenced by the sources listed above and more. While your unconscious or subconscious may have been running habitual thought programmes throughout your life in reaction to everyday situations, it is possible to consciously take charge and re-programme them. Some first steps Try these steps to begin with: (1) Bring awareness to your thoughts: Most of the time we’re not consciously aware of our thoughts so start by noticing and observing your thoughts and emotions, without judgement. Understand that if you can recognise your thoughts and emotions, they do not define you and you are independent from them. (2) Decide if your thoughts are serving you well: The thoughts and emotions we have are often dictated by our previous experiences and may have served us well in the past, but that is not always going to be true as we move forward. If your thoughts and emotions are not serving you well, question them, challenge them, and choose to shift, release or change them. (3) Recognise that you are in control: Can you see this thought from another perspective to allow it to shift? Focus on your breath and let your thoughts go or ask how you can change this thought to something that would be more helpful. (4) Focus on the new thought: As with any habit change, we need to practise to reinforce new patterns. Taking control of our thoughts can have a powerful effect on our health, just consider the placebo effect where patients in clinical trials who believe they’re receiving miracle drugs or surgeries but simply get sugar pills, saline injections or fake surgeries get better anywhere from 15–70% of the time. today are the same as the ones we past experiences. We obviously can’t say that positive beliefs are the had yesterday and what’s more, The reactor: The anger, frustra- only factor in the state of our health because, after all, 80% of our thoughts are negative. tion and pain that can be triggered accidents and unforeseen events happen, and genetic by events, situations and experi- predispositions and lifestyle choices do play a role. But Sources ences that remind us of unhealed what we do know is that negative beliefs cause stress Unhealthy, unproductive and nega- wounds from the past. hormones to flood our bodies and negatively impact on tive thinking patterns can stem from The should: The rules that must health just as positive beliefs promote healing hormones many sources, such as: be adhered to. Breaking the rules that encourage health and healing. The critical inner voice: The often leads to guilt, regret and anger. If you have trouble shifting, releasing or changing internalisation of painful early life These negative thoughts influence thought patterns that you now recognise as unhelpful, if experiences, attitudes towards us our hormone production, changing they affect your ability to meet your daily responsibilities by influential caregivers and their our blood chemistry and therefore and your capacity to enjoy life, consider seeking the attitudes towards themselves. The how our cells are expressing. So, if help of a qualified therapist. inner critic causes us to uncon- we want to improve our health, we Change the conversation you have with your body, sciously or subconsciously adopt can start by changing our thinking. change the environment you’ve created for it and a pattern of destructive thoughts Taking control of your thoughts improve your health. ▪ toward ourselves and others. is not easy, given that only around The worrier: The ‘what if ’ 5% of our thoughts are conscious Raewyn Ng  [email protected] is a movement coach thoughts that are usually motivated and the rest is unconscious or sub- with an interest in wellbeing and holistic health, man- by fear, and sometimes by negative conscious and that those thoughts aging stress and living a balanced lifestyle.

83 SUSTAINABLE PRACTICE

SUSTAINABLE PRACTICE The environmental impact of those electronic things on your desk

much-referred to source of information. At the heart of the climate change While it’s still used to state “facts” on problems the world is experiencing are emissions, it’s nearly a decade old now. greenhouse gas emissions into the atmos- Our investigations have attempted to use phere. Climate change is primarily caused more up-to-date sources, but some of these by the accumulation of greenhouse gases still draw on his research. in the atmosphere due to human activities. These absorb heat from Earth’s surface, Email warming the atmosphere. Mike Berners-Lee worked out that the aver- New Zealand’s emissions mainly come age spam email has a footprint equivalent from fossil fuels that emit carbon dioxide, to 0.3 grams of carbon dioxide emissions. A and agriculture which emits methane and normal email has a footprint of 4 grams of nitrous oxide. Statistics New Zealand says CO2 emissions – calculated from the power that in 2016, road vehicle emissions made data centres and computers required to up 39.1% of all our carbon dioxide emis- send, filter and read a message. sions, manufacturing and construction “While the act of responding to and emissions 19.7% and electricity generation sending emails is often labelled as a mundane, tedious 8.8%. The energy sector produced 87.5% chore, it contributes significantly towards one’s carbon of all carbon dioxide emissions. Methane footprint because computers, servers and routers must from livestock digestion made up 35.3% expend energy to send, read and filter emails,” says of gross emissions in 2016. Ahyoung Kim-Lee of Cornell University’s Roosevelt Our net greenhouse gas emissions rose Institute (“Is Email Bad for the Environment?”, 5 March 54.2% from 1990 to 2016 due to more trees 2017 on the university’s website). “Emails with a large being cut down and an increase in gross attachment can have a footprint equivalent to 50 grams emissions. of carbon dioxide,” she says. Greenhouse gas emissions are reported To put it into perspective, the average passenger vehicle in carbon dioxide equivalents units – which emits 411g of carbon dioxide per mile – so driving one is a measure for how much global warming mile (1.6km) is roughly equal to sending 8.22 emails with a given type and amount of greenhouse To put it into attachments or 102.75 “regular emails”, says Ahyoung Kim- gas causes, using the equivalent amount perspective, Lee. The average US business user in 2016 sent and received of carbon dioxide as the reference. This the average an average of 123.9 emails per day, and 45,224 emails a allows consistent reporting of different passenger year – annual email use in terms of carbon emissions greenhouse gases. vehicle emits equivalent to driving 180km. That said, let’s move from the roads 411g of carbon “If the 62 trillion spam messages sent out annually are and paddocks of New Zealand to the dioxide per eliminated, 20 million tons of carbon dioxide could be things which have revolutionised work- mile – so prevented from entering the atmosphere.” places in the last four decades – laptops, driving one email and the internet. Sitting inside and mile (1.6km) is Websites probably using these every day, are you roughly equal “A typical website produces 6.8g of carbon emissions every doing anything which has an impact on to sending 8.22 time a page loads… That’s roughly the same as the emis- climate? The answer, of course, is yes. In emails with sions produced when you boil an electric kettle for a cup 2010 Mike Berners-Lee produced a book attachments or of tea,” said erjjio studios managing director Ben Clifford in called How Bad are Bananas: The Carbon 102.75 “regular March 2019. His company is an environmentally-focused Footprint of Everything. This has become a emails” web hosting, design and developer based in London.

84 “We all know of the typical contributors India by 2025. directory of all the world’s services, data to our own individual carbon footprint – for “The internet’s data centres alone may centres and hosting providers which are example, air travel, the food we choose already have the same CO2 footprint as known to use 100% renewable energy. to eat, the type of car we drive (and how global air travel,” says the report, and You can plug the address of any website much it’s used instead of public transport), explains that “a common convenience in and check it. Another check at www. and the energy provider we choose for our like switching lights on by speaking to a websitecarbon.com/ will show how much home,” he said in a blog post, “The alarming digital assistant creates a chain of reactions carbon dioxide your website produces (you environmental impact of the internet and beyond your home, from one data centre need to disclose visitor numbers). how you can help,” (at https://medium.com/ to another, as information travels back wedonthavetime/). and forth.” Laptops “But we never stop to think that we view, Back to Ben Clifford, because he has While your laptop is being made it will save and exchange an endless stream of some useful suggestions for reducing draw upon several rare-earth metals. These data every day – photos, videos, emails, personal footprints: are mined in China, which accounts for music, messages, documents, presenta- • Delete emails that you won’t need 97% of the world’s rare-earths supply. tions and countless other formats. again, to prevent them being stored “Relative to other consumer goods, lap- “This daily lifestyle is powered by a vast unnecessarily. tops do not consume much electricity, network of tangible, physical infrastruc- • Unsubscribe from email newsletters and but they still have a carbon footprint,” the ture – from data centres to transmission mailing lists that you never read. Sciencing website says. “The University of networks to the devices we hold in our • Delete apps on your phone that you Pennsylvania estimates that, depending hands, place in our laps and have on our don’t use. on the model, laptops usually consume desks. The transfer and mass storage of • Delete redundant screenshots and between 20 and 50 watts per hour of our data is enormous, and growing at a photos from iCloud or other cloud drives. moderate activity. Even a laptop at the rapid speed.” • Use your phone for quick Google highest end of power consumption – using Mozilla’s 2018 Internet Health Report searches instead of a laptop – it uses 80 watts per hour – would only produce (https://internethealthreport.org/2018/) says less energy. 5g of carbon per hour of use.” if it were a country, the internet would be And if you’re worried about your own So, leaving your laptop on for an eight- on track to become the fourth largest CO2 website, the Green Web Foundation (www. hour stint means you will emit 0.4 kg of emitter on Earth after the US, China and thegreenwebfoundation.org) maintains a carbon into our planet’s atmosphere. For

85 SUSTAINABLE PRACTICE September 2019 · LAWTALK 932

CONTINUED FROM PAGE 85 LEGAL INFORMATION a 10-person office, that’s 4kg a day, 20kg a week and 960kg a year (with a four-week holiday). Not quite a tonne, but getting close… Online legal Laptops are “significantly greener” than desktop computers, says Sciencing. “Desktops use much more electricity and information therefore produce more carbon per hour than laptops.” The manufacturers of all types of com- providers puters are, of course, very aware of the enviromental impact of their products. In 2010 Dell calculated that a “typical look forwards business laptop from Dell” – the Latitude E6400 – emitted a total of 350kg of CO2 equivalent over its whole lifecycle. This BY DAVID varied according to country, but went from TURNER manufacturing, transport, use and then recycling (assuming 75% was recycled and the rest incinerated). HP produces Product Carbon Footprint Reports. The HP 250 G7 Great adventures often begin with the assembling Notebook PC was estimated this year to of an eclectic band of people unsure of what they are getting have a carbon footprint of around 275kg themselves into, who then overcome obstacles to unite and of CO2 equivalent during its life. save the world. While saving the world was not an official To end with a hopeful piece of news. In agenda item, it was in a similar spirit that the University of May 2019, UK-based Circular Computing Otago Legal Issues Centre (UOLIC) convened an online legal (a brand of A2C Services Ltd) announced information forum in Wellington on 25 July, in what could be that it is producing the world’s first reman- the first step towards more cooperation among those whose ufactured carbon-neutral laptops (“World’s mission includes solving people’s legal problems online. first carbon neutral laptops”, The Recycler, The 16 forum participants were from the community and 15 May 2019). government sectors, including the Citizens Advice Bureau, “The IT industry causes as much green- Community Law, the Ministry of Business, Innovation and house gas pollution as the entire airline Employment, the New Zealand Legal Information Institute industry, with figures rising as internet and the New Zealand Law Society, as well as individuals from usage soars,” says Circular Computing. the social entrepreneurial sector. The meeting was kindly “More than 160 million new laptops are sponsored by the Michael & Suzanne Borrin Foundation. made every year, responsible for around This was the first known time such a group has come 17% of electronic waste, and production together in New Zealand to discuss online legal information depends on many of the earth’s dwindling (OLI). It was a diverse and passionate group, each participant resources, including rare ‘conflict’ minerals, bringing their own blend of skills and experience to the metals and water.” discussion. What they had in common was a belief in OLI’s Instead of being refurbished, the lap- ability to empower people to deal with their legal problems, tops are completely re-built. “They cost and enhance democracy, education and access to justice. around 40% less than their equivalent Like Marvel’s Avengers, the group assembled to tackle new top-brand laptop, and the company a growing and important challenge for New Zealand: the re-purchases the laptops every three years rising demand for online legal information due to the wid- to re-join the remanufacturing process ening civil justice gap and the need for people to ‘self-help’ and be redeployed to other areas where when solving legal problems. Or, in a more positive light, they remain fit for purpose. In total, the it was a chance to think about how to make the most of company estimates three re-loop cycles opportunities presented by developments such as new and another nine years of useful life, technology and the emerging discipline of legal design. which in turn creates enormous positive environmental, ethical and social impact.” State of the nation Circular Computing – which plants five Before delving into future possibilities, the group began trees for every laptop sold – has signed with a ‘state of the nation’ style analysis of OLI in Aotearoa. a contract with Fortune 200 company What’s it like to open a web browser with the intent to Synnex. ▪ solve a legal problem in New Zealand? And what’s it like

86 for the people ‘behind the screen’ trying to deliver that policy, balancing accuracy with readability, information? The answers were optimistic but aware of and trying to simplify information about significant challenges. complex institutions and laws that are not On the upside, there is already a good base of quality OLI themselves user-friendly. in New Zealand, which is trustworthy and well explained – Currently, OLI providers are mostly the result of considerable effort by dedicated organisations tackling these challenges separately, and and individuals. so a source of optimism was the prospect On the downside, the good information lives among a of working together to find new solutions. lot of misinformation. And even after cutting through the Could we work together to discover the noise to a good website, users are expected to not only online needs of different communities? Can be reasonably literate in English, but also be capable of we share data and research? Can we link absorbing large amounts of text and converting it into virtual arms to guide a person from the action. Some might experience a bewildering maze with start of a legal dispute to its satisfactory no guide to light the pathway through a wide range of resolution? There are many ways of pooling options: a community website? Reddit? A government our strengths, and the UOLIC is exploring department? Or even a paid online service? ways we can facilitate the work of OLI For some users, there is no maze or choice – just an providers and improve the experience of absence of information for and about their issues. An It was a people in search of online answers to their urgent need was for OLI that is not only translated into diverse and legal problems. Te Reo, but which covers Māori issues. In the same vein, passionate This was our first time in the same New Zealand has a growing diversity of communities group... What physical location and so we found more with different languages and needs. Many of the forum they had in questions than answers about how to work participants were receiving requests for OLI that would common was together in the online world. Of course, help specific communities. a belief in cooperation requires overcoming barri- OLI’s ability ers, especially when organisations have Key challenge to empower different objectives and time and resource Meeting demand for varied and niche information in people to pressures. But the group finished the day a sector with stretched resources, was identified as a deal with with a common goal of forming a stronger key challenge for OLI providers. While there is a strong their legal eco-system with better connected provid- base of talented people with a solid history of creating problems, ers and users of OLI, and that’s a great start. OLI, they have insufficient resources and time to take and enhance Watch this online space! ▪ advantage of new developments and create the growing democracy, list of new materials that people have requested. This is education David Turner  [email protected] not to mention the evergreen challenges of creating OLI and access to is a Professional Practice Fellow at the – keeping it current with constantly changing law and justice University of Otago’s Legal Issues Centre.

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LAWYERS COMPLAINTS SERVICE

Complaints decision summaries

Files on stolen which 10 years of client files were stored) In 2014, an interim parenting order had amounts to a breach of Rules 8 and 11 of the been made in favour of Mr Glamorgan’s laptop not Lawyers and Conveyancers Act (Lawyers: former partner, giving her day-to-day care Conduct and Client Care) Rules 2008. of the children. protected Rule 8 provides: “A lawyer has a duty Mr Glamorgan had an agreement where to protect and to hold in strict confidence he would have the children in his care on A barrister who failed to place file protec- all information concerning a client, the alternate weekends. However, he sought tion on her work laptop, which was then retainer, and the client’s business and to secure more contact with the children. stolen, has been censured and fined $1,500 affairs acquired in the course of the pro- Durham represented Mr Glamorgan at a by a lawyers standards committee. fessional relationship.” hearing in 2016 where the judge made an The barrister, Norfolk, had a separate Rule 11 provides: “A lawyer’s practice interim parenting order placing the chil- office on her residential property, which must be administered in a manner that dren in week-about care of Mr Glamorgan was broken into and her work laptop taken. ensures that the duties to the court and and his former partner. A complaint was subsequently received existing, prospective, and former clients Following the hearing, Durham raised by the Lawyers Complaints Service. As part are adhered to, and that the reputation of concerns with Mr Glamorgan about the of that complaint, it was advised that: the legal profession is preserved.” payment of ongoing fees. Mr Glamorgan’s • the laptop contained legal aid files dating The breach of these two rules was unsat- view was that Durham had agreed to stag- back 10 years and the login details to isfactory conduct, the committee found. gered payments. Durham disagreed. Norfolk’s Resolution Management “Clients are entitled to expect that infor- In October 2016, Durham contacted System account; mation provided to a lawyer will remain Mr Glamorgan threatening District Court • Norfolk had no password or encryption confidential,” the committee said. proceedings to recover the balance of set up to prevent unauthorised access “Such an expectation is essential to the the outstanding fees. Mr Glamorgan to the information stored on her laptop; administration of justice as it encourages responded, setting out various concerns • no remote wipe software was installed clients to disclose all relevant matters about Durham’s conduct and about the on the laptop; to their lawyer and thereby allows that fees he charged. He requested further • Norfolk’s IT provider could remotely lawyer to give advice on the basis of full information about the basis for the fees access the laptop provided it was con- information.” but received no response. nected to the internet (which had not As well as imposing the censure and In September 2017, Durham provided Mr been detected); and fine, the committee ordered Norfolk to Glamorgan with his timesheets. Durham • before the burglary, Norfolk’s family had pay $500 costs. ▪ subsequently instructed a debt recovery access to the laptop and therefore her agency to pursue the outstanding costs. Mr client files. Glamorgan then made a formal complaint. The committee noted that Norfolk had Fined for three Mr Glamorgan alleged that Durham been personally devastated by the burglary failed to respond to his enquiries in a and had taken all responsible steps once rule breaches timely manner and in some cases failed the break-in was discovered, including to respond at all. working with the Police and the Ministry A lawyer has been fined $3,000 for discuss- Mr Glamorgan said he had left a series of Justice. ing his client’s case with another client, of voice mail messages, followed by text However, Norfolk was responsible for for failing to treat his client with respect, messages, but received no response. Mr protecting the confidential information of and failing to respond to his client in a Glamorgan asked the advice of a neighbour her clients, the committee said. timely manner. – a family lawyer – who rang Durham and “In light of the quantity of confidential When making the three findings of left a message. information stored on [Norfolk]’s laptop, unsatisfactory conduct by the lawyer, Mr Glamorgan said that when he did the committee considers that as a min- the lawyers standards committee said it speak to Durham, Durham made it clear imum, clients would expect that that considered that each warranted a $1,000 that he had not appreciated the call from information would be protected by way fine. the neighbour. Mr Glamorgan finally did of password or some form of encryption.” The lawyer, Durham, represented Mr secure a meeting with Durham on the “Norfolk’s failure to have any password Glamorgan in proceedings under the Care Saturday before the hearing set down for or encryption set up on her laptop (on of Children Act 2004. the following Tuesday.

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In the meantime, Mr Glamorgan said, his Durham made derogatory comments about over time. affidavit witnesses were “going crazy” not Berwickshire’s mother. Finally, on 23 May 2012, both were knowing whether they would be required Durham denied breaching confiden- granted work visas expiring on 23 May to appear at the hearing. tiality. He said that when he enquired it 2013. During the currency of those visas, was confirmed that the friend’s name was one of the complainants, Mr Northampton, Failure to respond Berwickshire. Durham said that was the sought to submit a work visa application The standards committee said that end of the matter and no further details supported by his employer. Durham’s failure to respond to Mr were exchanged. However, Immigration New Zealand Glamorgan’s various enquiries in a timely The standards committee said it shared (INZ) declined that application, and in manner breached his professional obliga- Mr Glamorgan’s doubt that Durham had late November 2013, Gloucester’s firm tions under rules 3.2 and 7.2 of the Lawyers ended the conversation with the other was consulted for advice concerning Mr and Conveyancers Act (Lawyers: Conduct client as quickly as he claimed and was Northampton’s immigration options. and Client Care) Rules 2008 (RCCC). satisfied – on the balance of probabilities The committee found that Lancashire did That constituted unsatisfactory conduct. – that Durham had indeed discussed Mr not attend to matters in a timely fashion Mr Glamorgan said that Durham had Glamorgan’s case with another client. and failed to respond to INZ’s request for made an abusive phone call about fees. “There is no reason to doubt Mr further submissions from her client, while Durham had sworn profusely and had said [Glamorgan]’s claim that [Durham] at the same time conveying an impression to him: “every time you buy a pair of shoes, openly stated that he had described Mr to the complainants that the work was in every time you pay for a kebab, you think Glamorgan’s former partner as ‘a crazy hand. of me staring back at you and the money bitch’ when talking to his other client,” The fact that Lancashire did not tell the you haven’t paid”. the committee said. complainants that judicial review was Durham denied making the abusive By disclosing confidential information, an option, nor that it was an option to phone call. Durham had breached rule 8 and following appeal their impending deportation to the The standards committee, however, of the RCCC and that was unsatisfactory said it was satisfied, on the balance of conduct. probabilities, that Durham had made the As well as the $3,000 fine, the committee call in question. ordered Durham to pay $1,000 costs. ▪ “It reached this conclusion because [Durham] was clearly applying increasing pressure to [Mr Glamorgan] … to make pay- Censure and ment of outstanding fees. [Mr Glamorgan] HAYS LEGAL was not acceding to [Durham]’s requests fine for delay in PARTNER WITH and indeed threatened to terminate the THE EXPERTS retainer. This appears to have angered Are you considering a new opportunity submitting visa within the legal sector? Are you looking [Durham] prompting the abusive phone for more responsibility or have you call,” the committee said. been thinking about giving in-house application opportunities a go? During the latter part of his engagement with Durham, Mr Glamorgan said, Durham A lawyer has been fined $5,000 and his Hays Legal is seeking local candidates for positions including: started to tell him about another case and employee has been censured after they • Litigator – national firm advised him that he and his client had been failed to submit their client’s visa appli- • Senior Solicitor – private client/ commerical property celebrating a win over a beer when his cation in a timely manner. • Staff Solicitor – commercial law/ client said his daughter was exhausted A lawyers standards committee found resource management after a sleepover with another child whose unsatisfactory conduct both by the lawyer, To find your mother had been vacuuming all evening. Gloucester, and the employee of the lawyer, local office, visit hays.net.nz Mr Glamorgan said that Durham advised Lancashire. that he had put “two and two together” and The complainants were two foreign asked the client whether his daughter’s nationals who arrived in New Zealand in friend’s name was Berwickshire (being the July 2009. They initially held student visas, hays.net.nz name of Mr Glamorgan’s daughter), and although they were granted further visas

89 LAWYERS COMPLAINTS SERVICE September 2019 · LAWTALK 932

Will CONTINUED FROM PAGE 89

Immigration and Protection Tribunal “are Notices both significant failures”, the committee said. Anderson, Albert Robert “Both the opportunity to apply for Arumugam, Ilancko judicial review and the potential appeal Barton, David had time limits. Before the complainants Bruss, Margaret Patricia were made aware of these options, the time (formerly Margaret Patricia Herron nee Thompson) limits had expired.” Carmichael, William Lancashire failed to respond to the Walton Alexander clients in a timely manner and did not Collins, William Tou complete the retainer, despite there being Courtney, Doris ample time to do so. Crimp, Mathew Charles The committee also found a number of De Olivera, Eugene Antonio Lancashire’s communications with her Eville, Nyria Ann Elizabeth clients were intentionally misleading. Gray, Nita Tirohia Lancashire also failed to keep her clients Lee, Lai Lin informed about progress on the retainer Magde, Patricia Miriam and failed to promptly answer requests Mailman, Victor Clifford for information. McAllister, Jason Glenn Failure to competently More, Ian Cedric Sonny supervise Morrison, Shaun Roger Organ, Raewyn Janet In relation to Gloucester, the committee Packer, Edwin George found that he failed to competently super- Pan, Roger Yao-Shi vise and manage Lancashire. Rakei, Metuavaine Terematoara “Gloucester accepts personally and Raui, Vaerua through his counsel that there were occa- Smit, Keith Eric sions where both he and [Lancashire] could Smith-West, Barbara Alison and should have responded more quickly to the requests by the complainants for information. Their apology is offered.” Anderson, Albert Robert Gloucester, through his counsel, Would any lawyer holding a will for the above- “responsibly accepts” that the regulated named, late of Christchurch, Retired Farmer, services were “not completed as quickly born on 16 March 1928, who died on 10 July 2019, as they could have been or indeed at all. please contact Nathan Lines of Cuningham In apologising, he is unable to offer any Taylor Law  justification for this.” [email protected]  (03) 379 2605 Gloucester also failed to take reason-  PO Box 1003, Christchurch 8140 able steps to ensure his client was kept informed about progress, and in particular Arumugam, Ilancko that he had instructed Lancashire to defer Would any lawyer holding a will for the above- lodging a section 61 application until he named, born 28 April 1959 and died 4 June 2019, returned from overseas. please contact Simone Seddon of Collins & As well as censuring Lancashire and May Law:  fining Gloucester $5,000, the committee [email protected]  04-576-1411 (DDI) ordered Gloucester to pay $1,000 costs, and  PO Box 30-614, Lower Hutt 5040 made orders that the facts be published, but not any details that might lead to Barton, David identification of the parties involved. Would any lawyer holding a will for the above- The complainants also sought compen- named, late of 87 Oranga Avenue, Onehunga, sation. On review, the Legal Complaints Auckland, Electrician, born on 30 July 1939, who died on 3 July 2019, please contact Lana Dixon Review Officer upheld the committee’s of Jackson Russell: decisions and also ordered Gloucester to  [email protected] pay $2,500 compensation in relation to  (09) 3006940 stress and anguish. ▪  PO Box 3451 Auckland 1140

90 LAWTALK 932 · September 2019 CLASSIFIEDS · WILL NOTICES

Bruss, Margaret Patricia (formerly Gray, Nita Tirohia Organ, Raewyn Janet Margaret Patricia Herron nee Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- Thompson) named, late of Morrinsville (also previously of named, late of Auckland, retired. Born 30 April Would any lawyer holding a will for the above- Hastings), Seasonal Worker born on 26 March 1942 and died 31 March 2019, please contact named, late of Alexandra, Retired, formerly of 1966, who died on or about 27 June 2019 aged John Broadbent of W.G. Broadbent & Co 53 years, please contact Matthew Wright, Rae Dunedin, born on 30 June 1936 who died on 13  [email protected] & Wright Solicitors: July 2019, please contact Nicole Redgrave of  07 862 8659  Scholefield Law: [email protected]  PO Box 28, Paeroa 3640/DX GA25003  [email protected]  07 889 5082 or fax 07 889 5083  (03) 448 7709 Fax: (03) 448 7015  PO Box 2, Morrinsville 3340 Packer, Edwin George Lee, Lai Lin Would any lawyer holding a will for the above- Carmichael, William Walton named, late of Rangiora, Maintenance Worker, Alexander Would any lawyer holding a will for the born on 27 July 1952, who died 18 July 2017 in Would any lawyer holding a will for the above- above-named, late of Remuera, Auckland, Kaiapoi, please contact Vicky Brown, Helmore named, late of Waihi Beach, builder by trade but Retired, born on 11 July 1930 who died on 28 Stewart Lawyers: June 2019, please contact Helen Edwards of retired when he died, born at Auckland on 17  [email protected] K3 Legal Limited: September 1922 who died on 27 July 2019, please  03 311 8750   contact Loren Gerbich from Martelli McKegg: [email protected] (09) 366 1366  PO Box 44, Rangiora 7440   [email protected] PO Box 2137, Auckland 1140  (09) 300 7623 Pan, Roger Yao-Shi Magde, Patricia Miriam Would any lawyer holding a will for the above- Collins, William Tou Would any lawyer holding a will for the above- named, Retired, born on 1 March 1933, who died Would any lawyer holding a Will for the above- named, late of Lower Hutt, Retired, born on 10 on 26 June 2019, please contact David Liu, Yu named, late of Lower Hutt in New Zealand, February 1929 who died on 22 May 2019, please Lawyers Limited: contact Lynda Pointon of Steve Gill Law Personal Trainer, born on 30 June 1976 who died  [email protected]  on 20 December 2015, please contact Shannon [email protected]  (09) 620 8228  Marian McEwen: (04)569 4993  PO Box 96135, Balmoral, Auckland 1342   [email protected] PO Box 30-713, Lower Hutt 5040  004 576 1417 Rakei, Metuavaine Terematoara  Mailman, Victor Clifford PO Box 30 614, Lower Hutt 5040 Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- named, who died at Papakura Auckland, Courtney, Doris named, late of 35 Bridgewater Way, Pyes Pa, between 25 and 28 June 2019 , aged 58, please Would any lawyer holding a Will for the above- Tauranga, born 8 November 1932 and who died contact Maurice J Burney: 25 May 2019, please contact Oakley Moran named, formerly of Orewa, born on 17 December  [email protected] Solicitors: 1939, please contact Mrs Courtney’s lawyers,  (09) 527 1311  Jacqueline Hardey at Kemps Weir Lawyers: [email protected]  PO Box 14-663 DX EP 80506, Panmure 1741   [email protected] (04) 472 3055 Fax: (04) 472 6657   09-525 4591 PO Box 241 Wellington 6140 Raui, Vaerua  PO Box 562566 Greenlane, Auckland 1546 McAllister, Jason Glenn Would any lawyer holding a will for the above- named, late of Tokoroa, Scaffolder/Rigger, born Crimp, Mathew Charles Would any lawyer holding a will for the above- 3 March 1967 who died on 29 April 2019, please Would any lawyer holding a will for the above- named, late of 3 Bilkey Avenue, Pukekohe, contact LMC Law: Digger Driver, born on 15 March 1973, who died named, late of 15 Dunton Drive, Tauranga, born  [email protected] on 9 September 2016, 43 years, please contact 28 July 1985 and died Between 24 June 2019 and  (07) 886 0553 Lena Wong of Complete Legal Limited solicitors 25 June 2019, please contact Jo McLennan of  PO Box 250, Tokoroa 3444 Kaimai Law Bethlehem:  [email protected]   [email protected]  07 579 3317 (DDI) (09) 238 7004 Smit, Keith Eric   PO Box 264, Pukekohe 2340 or DX EP77026 PO Box 16010, Tauranga Would any lawyer holding a will for the above- More, Ian Cedric Sonny named, late of National Park in Owhango, De Olivera, Eugene Antonio Company Director, born on 10 June 1963 in Would any lawyer holding a will for the Would any lawyer holding a will for the South Africa who died on 15 May 2019, please above-named, late of C/-21 Springdale Grove, above-named, late of Rotorua, New Zealand contact Leanne Swan of Fencible Law Limited: who passed away on 19 February 2019, please Palmerston North who died on 27 May 2019,  [email protected] contact Tegwen Ng of RiceCraig Barristers & please contact Mark Sinclair, Jacobs Florentine:  09 533 3539 Solicitors:  [email protected]  PO Box 39 739, Howick, Auckland 2145   06 358 8129, Fax 06 358 2100 [email protected]   PO Box 12-058, Palmerston North (09) 295 1700 Fax 09 295 1701 Smith-West, Barbara Alison  PO Box 72-440 Papakura 2244 Would any lawyer holding a will for the above- Eville, Nyria Ann Elizabeth Morrison, Shaun Roger named, late of Auckland, Retired, born on 9 Would any lawyer holding a Will for the above- July 1933 who died on 3 February 2019, please named, late of 820 East Coast Road, Oteha, Would any lawyer holding a will for the above- contact Sarah Wells of Gaze Burt Limited: named, late of Wellington, who died on 1 July Auckland, Bank Officer, born on 1 August 1937,  [email protected] 2019, please contact Roger Simonsen, Jacobs who died on 24 June 2019, please contact Tina  09 414 9800 Florentine: Wilson, Wilson McKay Barristers and Solicitors  PO Box 301 251, Albany, Auckland 0752   [email protected] [email protected]   (09) 523 0766 06 358 8129 Fax (06) 358 2100   PO Box 28347 Remuera, Auckland 1541 or PO Box 12-058, Palmerston North 4444 DX CP33019

91 LEGAL JOBS · CLASSIFIEDS September 2019 · LAWTALK 932 CPD Calendar Waikato Law Practice REFEREES, DISPUTES TRIBUNAL for Sale Whangarei PROGRAMME PRESENTERS CONTENT WHERE WHEN A well-established sole-practitioner legal practice is for sale in CIVIL LITIGATION AND EMPLOYMENT the Waikato area. This is an opportunity for a lawyer seeking to There will shortly be a process for the appointment of relocate or a local lawyer seeking to purchase his or her own Referees in the Whangarei Region. Members of the CIVIL ELECTRONIC Hon Justice Miller Electronic casebooks are becoming the desired medium Auckland 29 Oct practice. A practice with major areas being: public are invited to submit the names of persons who CASEBOOKS – SENIOR Hon Justice Jagose in document-intensive trials and on all civil appeals in the Wellington 30 Oct COURTS Senior Courts. Used well, consistently with the updated • Commercial & residential conveyancing Bronwyn McKinlay are considered suitable for appointment as Referee. Protocol, they are tools for persuasive advocacy. The Christchurch 31 Oct • Commercial ventures Laura O’Gorman Live Web Stream 30 Oct Nominations must be sent in writing or by email. They 2 CPD hours updated Senior Courts Civil Electronic Document Protocol • Business sales & purchases came into effect in March this year and is intended to must contain the name, address, telephone number encourage and facilitate the use of electronic casebooks for • Trusts, Wills & Estates 2 CPD hours and email address of both the nominator and the civil cases in the High Court, Court of Appeal and Supreme Court. This seminar will help you to use and construct Please contact the advertiser, in confidence, at: person being nominated. electronic casebooks effectively, and will provide the Confidential Advertiser No. 18-8, [email protected] Once a nomination has been received, the person perspectives of the Judiciary and senior lawyers.

who is nominated will be sent an application pack INTRODUCTION TO CIVIL Roderick Joyce QSO QC This workshop is an excellent opportunity for recently Wellington 21-22 Oct with details relating to the position and how to apply LITIGATION SKILLS Sandra Grant admitted practitioners to develop practical skills in civil Auckland 4-5 Nov litigation in an intense small-group workshop. You will learn Havelock North practice for it. Nikki Pender 9 CPD hours how to handle a single file from beginning to end, be able Nominations are to be made to the Principal Disputes Paul Radich QC to identify and understand the various steps in the process, For sale or lease to buy Referee, DX SX11159, Wellington 6011, Ph: (04) 462 develop the practical skills you need to handle this and a 6695, or email [email protected] range of other litigation files, competently and confidently. I don’t want to retire but to only undertake some types of Note: Douglas Wilson Scholarship applications close 23 Sept. work, so I will keep a minor part of my practice and sell the Nominations must be received by this office no later rest on favourable terms. I will remain. COMPANY, COMMERCIAL AND TAX than 12 noon on Wednesday 11 September 2019. It would suit a younger practitioner with a few clients TAX CONFERENCE – THE Chair: The annual NZLS CLE Tax Conference focuses on the most Auckland 12 Sep or a small practice wanting to expand quickly or a larger ROAD AHEAD Fred Ward relevant tax developments and issues for lawyers, whether Live Web Stream 12 Sep firm wanting a branch office. Very good office/accounting you are a tax specialist or commercial or private client system, wonderful clients, well situated, good prospects for 6 CPD hours advisor, and is designed to ensure you are kept abreast of expansion and steady workflow. When I fully retire, there will the latest developments that may affect your clients. be no further price to buy the part I retained. TORTS UPDATE Andrew Barker QC This seminar will consider what is happening in the world of Dunedin 17 Sep Contact David MacCallum — 021 877 221 Professor Geoff McLay torts including the most important recent cases and a brief Christchurch 18 Sep 4 CPD hours practical review of the theory that is driving them. Note: please see NZLS CLE website for updated brochure. Wellington 19 Sep Auckland 23 Sep 4 CPD hours Webinar 19 Sep

DIRECTORS – BREACH OF Brent Norling How can directors balance their core role of adding value Auckland 24 Sep DUTIES Michael Stiassny to shareholders’ investments and protecting their position Live Web Stream 24 Sep given their personal liability, civil and criminal, they can face? 2 x roles – Wellington 2 CPD hours This seminar will examine the issues from litigation funding, restructuring, corporate directorship, and legal perspectives. Experienced Criminal Lawyer/Senior Associate It will adopt a practical approach that will help you provide robust advice to your clients when dealing with directors Luke Cunningham Clere is a medium sized law firm based Solicitor, Health Law/Litigation breach of duties’ issues whatever side you are representing. in Wellington’s CBD. We currently have two vacancies for lawyers with 5+ years’ experience: 1 — 4 years’ PQE COMMERCIAL CASE LAW Chair: Jenny Cooper QC Despite the steady increase in commercial regulation over Auckland 26 Nov INTENSIVE recent years, case law remains a vibrant and powerful source Live Web Stream 26 Nov Experienced Criminal Lawyer – as the Wellington Crown of legal evolution in this area. This outstanding programme Solicitor’s office we undertake criminal prosecutions for Claro is looking for a rising star to join our fantastic team. 6 CPD hours highlights key developments that all commercial law the Crown. We have a vacancy for an experienced criminal The ideal applicant will: practitioners need to be aware of, whether their practice lawyer who can immediately pick up a trial workload. is transaction or litigation focused. With dynamic speakers • Be Christchurch or Wellington based (but exceptional and topical subjects including contract law, directors’ duties, Senior Associate – we have expanding regulatory candidates in Auckland may be considered); negligence, confidentiality issues and litigation funding, enforcement, civil litigation, public law, and professional • Have some litigation experience and/or demonstrated this promises to be a day of stimulating presentations and disciplinary practices acting for a wide range of Crown and interest in litigation; challenging discussion. other entities. We have an opportunity across these practice • Have some health law experience and/or demonstrated CRIMINAL areas for a person looking to step into a Senior Associate interest in the health sector or medico-legal matters; • Be able to demonstrate excellent verbal and written role who is keen to develop their advocacy skills and take DUTY LAWYER TRAINING Local Presenters Duty lawyers are critical to the smooth running of a District Various Aug-Oct an active role in managing key clients. Previous criminal communication skills; PROGRAMME Court list. Here is a way to gain more of the knowledge and experience is not a prerequisite for this role. • Have experience working in a medium to large law firm. skills you need to join this important group. This workshop is In return we offer: 11* CPD hours made up of several parts. Both roles require strong written and oral communication *CPD hours may vary, see website skills and sound decision making on legal and procedural • Opportunity to work alongside senior experts in health law matters. You will be conscientious and resilient, be able to across our three offices; INTRODUCTION TO Brett Crowley A practical two-day workshop covering the fundamentals of Auckland 2-3 Sep work with minimal supervision and able to manage your • Exposure to exciting, interesting and varied case work; CRIMINAL LAW PRACTICE being an effective criminal lawyer. This workshop will benefit workload effectively. • Market salary. all practitioners wanting to be appointed to level one of the 13 CPD hours criminal legal aid list, and those recently appointed to level For more information on the work we do, go to: one. Applications will be progressed as received. E-mail www.clarolaw.co.nz Note: Douglas Wilson Scholarship applications closed your application (CV, cover letter, academic transcript) Applicants should provide CV, cover letter and academic to [email protected]. No agencies please. transcript by 4 October 2019 to [email protected]

For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz OTHER PRACTICE AREAS CPD Calendar

PROGRAMME PRESENTERS CONTENT WHERE WHEN CIVIL LITIGATION AND EMPLOYMENT

CIVIL ELECTRONIC Hon Justice Miller Electronic casebooks are becoming the desired medium Auckland 29 Oct CASEBOOKS – SENIOR Hon Justice Jagose in document-intensive trials and on all civil appeals in the Wellington 30 Oct COURTS Senior Courts. Used well, consistently with the updated Bronwyn McKinlay Protocol, they are tools for persuasive advocacy. The Christchurch 31 Oct Laura O’Gorman Live Web Stream 30 Oct 2 CPD hours updated Senior Courts Civil Electronic Document Protocol came into effect in March this year and is intended to encourage and facilitate the use of electronic casebooks for 2 CPD hours civil cases in the High Court, Court of Appeal and Supreme Court. This seminar will help you to use and construct electronic casebooks effectively, and will provide the perspectives of the Judiciary and senior lawyers.

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

TAX CONFERENCE – THE Chair: The annual NZLS CLE Tax Conference focuses on the most Auckland 12 Sep ROAD AHEAD Fred Ward relevant tax developments and issues for lawyers, whether Live Web Stream 12 Sep you are a tax specialist or commercial or private client 6 CPD hours advisor, and is designed to ensure you are kept abreast of the latest developments that may affect your clients.

TORTS UPDATE Andrew Barker QC This seminar will consider what is happening in the world of Dunedin 17 Sep Professor Geoff McLay torts including the most important recent cases and a brief Christchurch 18 Sep 4 CPD hours practical review of the theory that is driving them. Note: please see NZLS CLE website for updated brochure. Wellington 19 Sep Auckland 23 Sep 4 CPD hours Webinar 19 Sep

COMMERCIAL CASE LAW Chair: Jenny Cooper QC Despite the steady increase in commercial regulation over Auckland 26 Nov INTENSIVE recent years, case law remains a vibrant and powerful source Live Web Stream 26 Nov of legal evolution in this area. This outstanding programme 6 CPD hours highlights key developments that all commercial law practitioners need to be aware of, whether their practice is transaction or litigation focused. With dynamic speakers and topical subjects including contract law, directors’ duties, negligence, confidentiality issues and litigation funding, this promises to be a day of stimulating presentations and challenging discussion. CRIMINAL

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

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

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

PROGRAMME PRESENTERS CONTENT WHERE WHEN FAMILY

ADVANCE CARE Jane Goodwin Advance care planning is a process of planning and Webinar 10 Sep PLANNING – ISSUES FOR Nick Laing discussion for future health care. This webinar will introduce LAWYERS what advance care planning is to practitioners, cover the legal framework for this, including the use of advance 1.5 CPD hours directives and the interplay with living wills and enduring powers of attorney, the implementation of these plans and some key tips and tricks. It will draw on a number of practical and case law examples throughout the presentation.

AVOIDING CLAIMS ON A Stephanie Marsden Family trusts can be an effective tool for protecting assets Auckland 25 Sep TRUST WHEN A COUPLE Dr Rhonda Powell but what happens when the relationship breaks down and Live Web Stream 25 Sep SEPARATES a couple separates? This presentation will examine key case law developments concerning claims against trusts in 2 CPD hours circumstances where the relationship and family unit has broken down. It will consider strategies to protect trusts already in existence, as well as trusts yet to be formed, and briefly discuss the latest law reform proposals in relation to relationship property and trusts.

THE IMPACT OF Jo Leech “High-conflict” divorce cases – especially those involving Wellington 6 Nov ENTRENCHED Professor Bruce Smyth entrenched interparental hatred – have been consistently INTERPARAEMTAL identified as difficult, complex, time consuming, and costly. HATRED ON CHILDREN They place great strain on individuals (including children), practitioners and courts, as well as on the family law system 3.5 CPD hours more generally. In this session the presenters will: explore “interparental hatred” as a key relationship dynamic driving some high-conflict cases; discuss strategies for lawyers working with parents in the grips of entrenched hatred; and offer strategies for working with cases where children may be resisting or refusing contact as a consequence of a parent spreading the culture of hatred on to children. This is a Pre-Conference Workshop to the Family Law Conference – additional charge applies

FAMILY LAW Chair: Rachael Dewar We extend to you the warmest of invitations to register Wellington 7-8 Nov CONFERENCE for the Family Law Conference which has the theme: The Winds of Change: Mā te hau tōrua. This biennial event has 13 CPD hours become a sell-out, “must-go” occasion, noted as much for its enthusiastic collegiality as for the high quality of the business sessions. Both practical and provocative, the programme will provide practitioners at all levels of experience with two days of stimulating engagement on topics of essential importance and interest. See you in Wellington! PROPERTY AND TRUSTS

UNIT TITLES UPDATE Dahl Calder This seminar will include: an update on the key themes Auckland 9 Sep John Harkness arising from recent cases; issues for bodies corporate arising Live Web Stream 2 CPD hours from the use of units for short-stay accommodation and the extent to which bodies corporate can restrict or control the use of units for short-stay accommodation; issues around good governance, decision-making, information sharing and enforcement of body corporate rules; and, practical tips for bodies corporate, chairpersons, committees, body corporate managers and their lawyers.

WINDING UP A TRUST Kimberly Lawrence The landscape in relation to family trusts has changed Webinar 11 Sep AND OTHER ISSUES Greg Kelly significantly and often it will be in your clients’ best interests to review their current arrangements. The presenters will 1.5 CPD hours take a practical approach in considering: ‘winding up’ a trust or bringing it to an end; resettling or modifying a trust; and the integration of a trust with longer term life and succession planning arrangements.

CONSTRUCTION Chair: Andrew Skelton It is a challenging time for the construction industry. This Christchurch 23 Oct LAW – ISSUES AND intensive has practical guidance and insights to help Auckland 24 Oct OPPORTUNITIES you provide the best advice for your constuctions and infracture clients. Topics covered include: procurement Live Web Stream 24 Oct 6 CPD hours models; effective use of dispute resolution, and case law developments.

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

PROGRAMME PRESENTERS CONTENT WHERE WHEN OTHER PRACTICE AREAS

FAMILY ENVIROMENTAL LAW Chair: An update on key cases and developments in the Christchurch 18 Nov INTENSIVE Bronwyn Carruthers environmental law field including: resource management Auckland 19 Nov ADVANCE CARE Jane Goodwin Advance care planning is a process of planning and Webinar 10 Sep system overview and update; the RMA and interface with PLANNING – ISSUES FOR discussion for future health care. This webinar will introduce Live Web Stream 19 Nov Nick Laing 7 CPD hours other legislation; environmental law and our constitution; LAWYERS what advance care planning is to practitioners, cover the Marine and Coastal Area (Takutai Moana) Act proceedings; legal framework for this, including the use of advance scientific uncertainty and environmental decision making; 1.5 CPD hours directives and the interplay with living wills and enduring and, moving towards a transformative recognition of tikanga powers of attorney, the implementation of these plans Māori in environmental jurisprudence. and some key tips and tricks. It will draw on a number of practical and case law examples throughout the PRACTICE AND PROFESSIONAL SKILLS presentation. ANTI-CORRUPTION AND David Howman CNZM David Howman is the former Director-General of the Christchurch 3 Sep AVOIDING CLAIMS ON A Stephanie Marsden Family trusts can be an effective tool for protecting assets Auckland 25 Sep SPORTS LAW World Anti-Doping Agency and the current Chair of the Wellington 4 Sep TRUST WHEN A COUPLE Dr Rhonda Powell but what happens when the relationship breaks down and Live Web Stream 25 Sep Athletics Integrity Unit, an international body charged with SEPARATES a couple separates? This presentation will examine key responsibility for addressing issues of bribery, corruption, Auckland 5 Sep 1.5 CPD hours case law developments concerning claims against trusts in betting and the manipulation of competition results in 2 CPD hours circumstances where the relationship and family unit has athletics. David will provide his personal insights from the broken down. It will consider strategies to protect trusts perspectives of a top sports lawyer and a senior executive in already in existence, as well as trusts yet to be formed, and what will be a compelling and interactive presentation. briefly discuss the latest law reform proposals in relation to relationship property and trusts. STEPPING UP – Director: All lawyers wishing to practise on their own account whether Auckland 21-23 Nov FOUNDATION FOR Warwick Deuchrass alone, in partnership, in an incorporated practice or as a THE IMPACT OF Jo Leech “High-conflict” divorce cases – especially those involving Wellington 6 Nov PRACTISING ON OWN barrister, will be required to complete this course. ENTRENCHED Professor Bruce Smyth entrenched interparental hatred – have been consistently ACCOUNT INTERPARAEMTAL identified as difficult, complex, time consuming, and costly. HATRED ON CHILDREN They place great strain on individuals (including children), 18.5 CPD hours practitioners and courts, as well as on the family law system 3.5 CPD hours more generally. In this session the presenters will: explore “interparental hatred” as a key relationship dynamic driving TRUST ACCOUNT Philip Strang How do you keep a trust account in good order? This practical Auckland (full) 18 Sep some high-conflict cases; discuss strategies for lawyers ADMINISTRATORS training is for new trust accounting staff, legal executives, Hamilton 19 Sep working with parents in the grips of entrenched hatred; and legal secretaries and office managers. offer strategies for working with cases where children may 4 CPD hours be resisting or refusing contact as a consequence of a parent spreading the culture of hatred on to children. This is a Pre-Conference Workshop to the Family Law TRUST ACCOUNT Philip Strang Under the Financial Assurance Scheme all practices operating Wellington 24 Sep Conference – additional charge applies SUPERVISOR TRAINING a trust account must appoint a qualified trust account Auckland 5 Nov PROGRAMME supervisor. A candidate must be a lawyer and must pass FAMILY LAW Chair: Rachael Dewar We extend to you the warmest of invitations to register Wellington 7-8 Nov the NZLS trust account supervisor assessments, which take Christchurch 12 Nov CONFERENCE for the Family Law Conference which has the theme: The 7.5 CPD hours place during a full day programme. The training consists of Winds of Change: Mā te hau tōrua. This biennial event has self-study learning material (approx. 40-50 hours) to help you 13 CPD hours become a sell-out, “must-go” occasion, noted as much prepare for the assessments. for its enthusiastic collegiality as for the high quality of the business sessions. Both practical and provocative, MEDIATION SKILLS AND Virginia Goldblatt Building on the prior workshop Mediation Principles and Auckland 18-19 Oct the programme will provide practitioners at all levels of STRATEGIES – CIVIL/ David Patten Process (previously Mediation for Lawyers Part A) you experience with two days of stimulating engagement on COMMERCIAL, FAMILY, will learn and practise essential mediation skills in order Denise Evans topics of essential importance and interest. See you in EDUCATION DISPUTES to prepare to become a mediator. Will offer area-specific Wellington! coverage as well as generic skills. 13 CPD hours PROPERTY AND TRUSTS UNIT TITLES UPDATE Dahl Calder This seminar will include: an update on the key themes Auckland 9 Sep Negotiation is a vital skill for every lawyer. Few aspects of Auckland 30-31 Oct arising from recent cases; issues for bodies corporate arising LAWYER AS NEGOTIATOR Jane Chart John Harkness Live Web Stream representation can have a greater impact on whether the from the use of units for short-stay accommodation and the Welington 13-14 Nov 2 CPD hours best results are achieved for your client. The District Court extent to which bodies corporate can restrict or control the 11.5 CPD hours Rules have underscored the significance of negotiation for Christchurch 25-26 Nov use of units for short-stay accommodation; issues around effective practice. Improved negotiation skills can help avoid good governance, decision-making, information sharing and unnecessary litigation, and produce better settlements more enforcement of body corporate rules; and, practical tips for efficiently. Skill in negotiation also increases effectiveness bodies corporate, chairpersons, committees, body corporate in client interviewing, as well as in representing clients in managers and their lawyers. mediation and judicial settlement conferences. WINDING UP A TRUST Kimberly Lawrence The landscape in relation to family trusts has changed Webinar 11 Sep READING ACCOUNTS Lloyd Austin It may not be necessary for you as a lawyer to have the Auckland 4-5 Nov AND OTHER ISSUES Greg Kelly significantly and often it will be in your clients’ best interests to review their current arrangements. The presenters will AND BALANCE SHEETS financial insight expected of an accountant, but you should Hamilton 6-7 Nov take a practical approach in considering: ‘winding up’ a trust know how financial statements are put together and how to: 1.5 CPD hours interpret the figures; use the figures in financial statements Christchurch 11-12 Nov or bringing it to an end; resettling or modifying a trust; and 7.5 CPD hours Wellington 13-14 Nov the integration of a trust with longer term life and succession to assess the “health” of a business; ask the right questions planning arrangements. and identify warning signs; discuss financial statements intelligently with a client; and know when to call in specialist CONSTRUCTION Chair: Andrew Skelton It is a challenging time for the construction industry. This Christchurch 23 Oct assistance and be able to communicate effectively with them. This workshop will make you more effective and LAW – ISSUES AND intensive has practical guidance and insights to help Auckland 24 Oct OPPORTUNITIES you provide the best advice for your constuctions and confident when providing guidance to your clients on infracture clients. Topics covered include: procurement Live Web Stream 24 Oct financial matters. 6 CPD hours models; effective use of dispute resolution, and case law developments.

To contact us | Visit: www.lawyerseducation.co.nz To contact us | Visit: www.lawyerseducation.co.nz Email: [email protected] | Phone: CLE information on 0800 333 111 Email: [email protected] | Phone: CLE information on 0800 333 111 LIFESTYLE September 2019 · LAWTALK 932

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SET BY MĀYĀ 27

Across Down

1 Gloomy 24, almost 9 (9) 2 Tranquillity was achieved by this C T A T T A 9 Show concerned with meat (6) 11 (6) S A V A N N A H S T H I N G R N N E O A 10 The inter-24-ary breath of Ra? 3 A 24 drops us and turns back sloth M O D I F I E R S A M A S S (5,4) for the muse of those who study L A E E H A T B O O S T E R S E A T 11 Mildly rebuke Pharaoh twice 24s (6) M V A A L I S (3-3) 4 Novice bishop with a cyst getting M A L A R K Y R E I N S I N 12 1, 50, 51, and 50 entering a raise, that is (6) D L L J N A A R E G E N E R A T O R the metropolis in a way not 5 - (7) L N Y C F T J approved by law (9) 6 Scotsmen pursue designated B E T T Y D I A T R I B E S I I N R A N 13 Choose 25, say, for a meal (6) areas out east from a 24 (9) I N A N E A D J O I N I N G 17 A Western country may be 7 A 24's docked, and I hesitate to E A A Y A Y Russian occasionally (3) get Heavy Metal (9) 19 Clay comes from a 24, given 8 A 24 and most of a surface feature directions (7) ruled by wealth (9) Solution to August 20 Tongue-shaped hatch in a gull (7) 14 Unpredictable 24 curtailed, to 2019 crossword 21 Is p-politician? (3) ail, ailing (9) Across 23 The Whole of Electric Osmosis (6) 15 Don's secret message: "Space 7. Savannahs, 8. Thing, 27 Restaurant with separate area suits must be worn" (5,4) 9. Modifiers,10. Amass, for interrogation? (9) 16 The rock convulsion is 12. Booster Seat, 15. Malarky, 28 Vehicle for an angry rebuke? (6) speculative (9) 16. Reins In, 18. Regenerator, 29 Print ASCII right away; terribly 17 3 drops princess for Northern 21. Betty, 22. Diatribes, 23. Inane, skilled at the keyboard (9) woman (3) 24. Adjoining. 30 Buzz once heard in 2 11 (6) 18 Half 24 mounting a peak (3) 31 Clearly from Ballantrae, natally 22 Foreign milk sheep returning, Down (what are the odds?) (9) originally related to a 24 (7) 1. Carol, 2. Tania, 3. Annie Oakley, 24 Body found in crate by junction (6) 4. Theresa, 5. Thomasina, 25 Quiet, polite objection raised to 6. Anastasia, 11. Helen of Troy, porridge (6) 13. Madeleine, 14. Valentina, 26 Ms Aleh has a small vessel once 17. Jacinda, 19. Tiana, 20. Jenny. related to a 24 (6)

96 LAWTALK 932 · September 2019 LIFESTYLE

LIFESTYLE

Rumpole of the Bailey Where defiance is a virtue

BY CRAIG STEPHEN

Never a prosecutor

Rumpole of the Bailey was created Horace Rumpole’s forte was in defending; he never by British writer (and former bar- prosecuted. His core values were the presumption of as an embarrassment. rister and QC) John Mortimer as innocence. He would never plead guilty on behalf of his Although ostensibly mysteries, a defiant criminal lawyer. He first clients, even if the defendant has confessed because the cases he undertakes are unlike made a television appearance in “there is no piece of evidence more unreliable than a the standard whodunnit – in some the week before Christmas 1975 confession”. cases, Rumpole’s task is merely to but wouldn’t become a familiar face Asked why he refused to prosecute, he replied that he prove how his client didn’t commit on British and New Zealand screens didn’t believe prison was a suitable punishment: “I’m not the crime. until the 1980s. going to use my skills, such as they are, to force some In one episode, Rumpole à la carte, The initial sighting was part of the poor devil into a condemned Victorian slum where he Rumpole agrees to defend an elit- BBC’s much-lauded Play for Today can be banged up with a couple of psychopaths and his ist restaurateur whom he takes a series but it was the Beeb’s rival own chamber pot.” dislike to when a live mouse jumps ITV that picked up the rights to a The Rumpole stories, although veering towards the out from one of his gourmet meals, series which began three years later droll, also contained very pointed messages about while in Rumpole and the Alternative with Australian actor Leo McKern access to justice. There is little of the sentimentality or Society, the barrister defends a as the heavyweight (in more ways quaintness that characterised that other British legal hippie schoolteacher on a drugs than one) English barrister. series, The Irish R.M. charge and finds himself attracted The first episode of the Rumpole Creator John Mortimer was a self-proclaimed anti-Es- to her lifestyle. of the Bailey series aired in 1978 on tablishment figure, famously defending the underground In the final episode, Rumpole Thames Television, the ITV regional magazine Oz against obscenity charges in 1971. Another on Trial, the barrister is charged subsidiary for London, but which high profile case he was involved in was the apparently with contempt of court and faces was transmitted in the Scottish hopeless case of the punk band the Sex Pistols’ use of disbarment. Highlands, Derry, and down to the a word regarded as offensive for the title of their 1977 Rumpole was also a popular radio Channel Islands. album, Never Mind the Bollocks. Mortimer won the case series on the BBC with an extensive There were six episodes in the first by proving the word had been used in common literature series broadcast in 1980 – starring series and the same number in the as far back as Chaucer. Maurice Denham as Rumpole – and second series that aired in 1979 with several mini series from 2003, the an extended one-off special just Class prejudice year after McKern died, to this before New Year 1980. Thereafter Mortimer, who died in 2009 aged 85, wrote numerous year with Timothy West, Benedict it became a semi-regular project other novels and plays, some of which became popular Cumberbatch and Julian Rhind-Tutt re-appearing in 1983 with six new movies, such as Tea with Mussolini starring Dame Judi all taking on the larger-than-life role. episodes and again in 1987 with six Dench and The Ebony Tower with Laurence Olivier, but it And in April this year The Times more episodes, a further half dozen was Rumpole that extended his imagination the most. announced that Rumpole would shows in 1988 and then a break till He wrote every episode of the television series, and return in a ‘modern’ TV series. The 1991 and 1992 with 12 episodes over their subsequent novelisations. newspaper reported that Mortimer’s those sixth and seventh seasons. Hypocrisy, class and racial prejudice, the irritating works are to be “reimagined” in Every one of the 44 episodes self-righteousness of the powerful, the holes in the the new TV series, with his family in their various forms from 1975 legal system, the nature of justice – all were pierced by writing the scripts – actress Emily onwards began with ‘Rumpole’, Mortimer’s wit. Surprisingly, the Americans liked it, or Mortimer is due to produce the so the episodes would be called at least those who were able to view it. show and write it with her younger Rumpole and the Married Lady, Rumpole’s unhealthy personal habits, disdain for sister and fellow actress Rosie. Rumpole and the Fascist Beast and societal expectations, and sharp tongue earned him The series has been released on Rumpole and the Quacks, and so on. few marks among his peers, who largely regarded him DVD. ▪

97 TAIL END September 2019 · LAWTALK 932

TAIL END

New Zealand’s oldest law firms

The second-longest established firm, A 150th birthday is an important milestone, and the New Zealand Bell Gully, has a slightly shaky grip on Law Society is acknowledging the moment in a fitting manner its longevity status. The founder, Sir when it hits 150 on 3 September. It’s a long-lived institution, but Frederick Whitaker, arrived late in 1840 within the practice of law there are some which are older still. and started practice in Kororareka (now In fact, there are 24 law firms which have been in continuous Russell) before moving to Auckland existence for over 150 years. in 1841. He was appointed a judge of Our criteria for inclusion in the following list is that a firm must the County Court until 1844, but there always have been in existence. Names change, partners and is evidence that he continued to work directors come and go, but there must be a continuing entity. as a barrister. From December 1846 to The oldest firm, Treadwells, began before the Treaty of Waitangi early 1848, Whitaker took his family to on 3 January 1840 when Richard Davies Hanson stepped ashore England. Julie Millen who is the author of as the first qualified lawyer. Just before he left New Zealand in the firm’s history,The Story of Bell Gully August 1846 for Australia, Hanson joined Robert Hart in legal Buddle Weir 1840 – 1990, has said it is practice. believed his practice was continued while

Notable Quotes

❝ The lessons that Calvin taught me were not just about the ❝ He was overjoyed. He broke down and cried.❞ law. They were about not giving up.❞ — Ugandan lawyer Jordan Kinyera describes the reaction of his — Ben Cohen, the lawyer who filed a petition in the case 82-year-old father on hearing that his son had won a High Ramos v Louisiana which the US Supreme Court has agreed Court battle for return of the familiy’s land, lost in a dispute to hear. The instigator was former prison inmate Calvin 23 years earlier. Mr Kinyera studied to become a lawyer to Duncan who developed formidable legal skills and has contest the case and to help others in similar situations. spent decades pushing for a declaration that a Louisiana law allowing non-unanimous juries in criminal cases is ❝ Equity should no longer be seen as quintessentially, unconstitutional. exclusively English. It must reflect the shared values of the whole community, including some shared concepts of ❝ The innocuously named Horse & Pony magazine has tikanga Māori. It does not seem at all unikely that both become, somewhat surprisingly, embroiled in defamation whanaungatanga and kaitiakitanga will influence equity, proceedings.❞ gradually and more generally, in my second decade as a — Justice Hinton begins her judgment in Cato v Manaia Media Judge, and thereafter.❞ Ltd [2019] NZHC 440. — Court of Appeal President Stephen Kós delivers the keynote address to the Law Society Trusts Conference, June 2019. ❝ I will miss greatly the morning coffees and the sound of Penny’s cheerful humming and singing as she plows her ❝ If you have a real problem, hire a lawyer and take me to way through yet another draft judgment or transcript. I did court.❞ realise early on, however, that when she hums How Great — Kieran Withers, who claimed to be a New Zealand lawyer Thou Art, she’s not thinking of me.❞ and persuaded people to pay or lend him money, responds — Retiring High Court Judge Kit Toogood pays tribute to his to a taxi driver from whom he is alleged to have extracted Associate, Penny Murray. over $10,000 and who took his concerns to the media.

98 LAWTALK 932 · September 2019 TAIL END

The 50 oldest law firms in New Zealand

Current name Name Beginning Age in years adopted Treadwells 1840 179 2006 Bell Gully 1840 179 1984 Brandons 1841 178 1991 Jackson Russell 1844 175 1864 he was overseas. We’ve included them Brookfields 1856 163 1991 on that understanding. Things seriously Duncan Cotterill 1857 162 1879 got going in 1861 when Whitaker joined Glasgow Harley 1858 161 1997 Thomas Russell in partnership. Gallaway Cook Allan 1859 160 2001 Our list also shows the year a firm adopted its current name (if known). Wynn Williams 1860 159 1956 Jackson Russell has used the same name Izard Weston 1861 158 1924 for 155 years. Exact commencement dates Anderson Lloyd 1862 157 1987 are elusive and the age in years can best Russell McVeagh 1863 156 1904 be interpreted by adding “th” – so this Joynt Andrews 1863 156 1892 is Treadwell’s 179th year, etc. The list Pitt & Moore 1864 155 1879 has been compiled from many sources, Hardy-Jones Clark 1865 154 2007 but errors and omissions are gratefully Anthony Harper 1865 154 1987 accepted as usual. ▪ Hesketh Henry 1865 154 1986 Hannan & Seddon 1867 152 1920 Downie Stewart 1867 152 1986 Gresson Dorman & Co 1867 152 Whitcombe Guinness & Kitchingham 1867 152 Lane Neave 1868 151 Treadwell Gordon 1869 150 1909 ❝ Contempt of court undermines the Miller Poulgrain 1869 150 1921 integrity of the court system. The Langley Twigg 1872 147 1976 courts need powers to respond Meares Williams 1873 146 1899 effectively to threats to the effective WCM Legal 1874 145 2006 administration of justice.❞ Carins Slane 1874 145 1988 — Justice Minister Andrew Little Chapman Tripp 1875 144 welcomes the passage of the third Sainsbury Logan & Williams 1875 144 1900 reading of the Contempt of Court Bill. Gawith Burridge 1875 144 1998 Harkness Henry 1875 144 1945 ❝ According to our estimates, the Kensington Swan 1878 141 volume of work in legal services would Nolans 1879 140 be down £3.5 billion – nearly 10% Gascoigne Wicks 1879 140 1945 lower than under an orderly Brexit.❞ — The President of the Law Society Arthur Watson Savage 1880 139 1984 of England and Wales, Simon Davis, Corcoran French 1881 138 1988 starts to get very worried about the Jack Riddet Tripe 1881 138 prospect of a “no deal” Brexit. Weston Ward & Lascelles 1883 136 RSM Law 1883 136 ❝ Repeatedly I’ve chucked ethics Helmore Ayers 1883 136 out the window, I’ve chucked Helmore Stewart 1884 135 legal professional privilege out the Rhodes & Co 1884 135 1884 window, I’ve chucked my career out Innes Dean – Tararua Law 1884 135 the window if any of this ever came Halliwells 1886 133 1886 out.❞ Ross Dowling Marquet Griffin 1887 132 — “Lawyer X”, Nicola Gobbo, in a Simpson Grierson 1887 132 previously secret recording by Johnston Prichard Fee 1887 132 1948 police released by the Victorian Royal Commission looking at the way police Harmans Lawyers 1888 131 used her to inform on her clients. Papprills 1894 125

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