Justice for All Reflections on the Justice System in Aotearoa Pages 78 to 96

ISSUE 924 · December 2018

Justice for all Reflections on the justice system in Aotearoa Pages 78 to 96

Former Attorney- AML/CFT How can the legal The General returns Compliance: profession retain importance of to the bar Emerging talented women? doing nothing practical issues

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6 · From The Law Society 30 · What is good faith in franchising? 7 · New Zealand Law Society Part 1 ▹ BY DEIRDRE WATSON 33 · NZ must adapt to evolving People terror threat, study 11 · On the move finds ▹ BY LYNDA HAGEN 16 · Seamless return to the 34 · Damned if you do, damned if Bar for former Attorney- you don’t ▹ BY GEORGIA ANGUS General ▹ BY CRAIG STEPHEN 19 · Singing lawyers Alternative Dispute 20 · The Innovators: Karen Venables, Resolution Founder & Co-Director Legal 37 · Consensus building, 8068 Solutions ▹ BY ANDREW KING Part 4 ▹ BY PAUL SILLS

Courts Creating A Just Culture 22 · Court opening hours over 39 · How can the legal profession the 2018/19 holidays retain talented women? ▹ BY ANN BRENNAN, STEPH DYHRBERG, Update FIONNGHUALA CUNCANNON, MARIA 24 · AML/CFT compliance: POZZA AND HELEN MACKAY Emerging practical 43 · Questioning the issues ▹ BY ISMAIL RASHEED Questions ▹ BY VALERIE BLAND 28 · Proposals for a register of beneficial ownership in New 46 · Lawyers Complaints Zealand ▹ BY HENRY BRANDTS- Service GIESEN AND NICK BERESFORD 8892

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

Practice The Justice System Legal Information 48 · What is Agile and should I 78 · Diversity central to 99 · The Australian Advocacy care? ▹ BY DAMIAN FUNNELL public confidence in the Institute’s Advocacy Manual ▹ 50 · When the heat affects court ▹ BY CHIEF JUDGE REVIEWED BY GARRY WILLIAMS your work: safety in the JAN-MARIE DOOGUE 101 · Some recent legal workplace when summer 80 · Thoughts from the books ▹ GEOFF ADLAM peaks ▹ BY CRAIG STEPHEN departing Secretary for 52 · Responsible briefing ▹ BY SIAN Justice ▹ BY GEOFF ADLAM Classifieds WINGATE 84 · Alcohol and Other 103 · Will notices 57 · Focus on Timaru ▹ BY JOCK Drug Treatment 104 · Legal Jobs ANDERSON Courts transforming 107 · NZLS CLE Ltd CPD Calendar 61 · Working separately, but lives ▹ BY NICK BUTCHER together ▹ BY NICK BUTCHER 87 · Te Pae Oranga ▹ BY ROSALIE Lifestyle 65 · Sad Thoughts ▹ BY JOHN BURN CHAMBERLAIN 109 · A New Zealand Legal Crossword 67 · Let’s demystify culture change 90 · Family justice – time 110 · At the beach at in law offices ▹ BY EMILY MORROW for evolution, not Whangamata ▹ JOHN BISHOP revolution ▹ BY KERI MORRIS Practising Well 92 · The Criminal Cases Review 113 · Tail end 69 · Talking about mental Commission ▹ BY TRACEY health ▹ BY VICTORIA HALLUM CORMACK 73 · The importance of doing nothing ▹ BY RAEWYN NG Access To Justice 75 · In praise of a post-Christmas 97 · Update on legal zoom out ▹ BY KATIE COWAN aid ▹ BY GEOFF ADLAM

CONTACT DETAILS responsible management of the world’s forests. FSC certification is internationally recognised as the most rigorous environmental  26 Waring Taylor Street, Wellington 6011 and social standard for responsible forest management. The  04 472 7837 DIGITAL CONTENT EDITOR Craig Stephen paper used to produce LawTalk meets FSC requirements at all  PO Box 5041, Wellington 6140, New Zealand, or 04 463 2982 · [email protected] stages along the production cycle. DX SP 20202. LEGAL WRITER Tracey Cormack The shrink wrap used for delivery of LawTalk is 27 micron PRESIDENT Kathryn Beck 04 463 2936 · [email protected] biodegradable film manufactured in New Zealand. This degrades BOARD SENIOR DESIGNER Andrew Jacombs naturally. If you wish to discard LawTalk, please recycle it. The Nerissa Barber (Wellington) 04 463 2981 · [email protected] wrapping may be composted. Tiana Epati (Central North Island) DESIGNER Sophie Melligan Tim Jones (Auckland) 04 463 2993 · [email protected] Andrew Logan (South Island) WEBMASTER Miranda Kaye ACTING EXECUTIVE DIRECTOR Mary Ollivier 04 463 2990 · [email protected] MANAGING EDITOR AND DIGITAL CONTENT SPECIALIST Angela Ludlow COMMUNICATIONS MANAGER Geoff Adlam [email protected] 04 463 2980 · [email protected] ADVERTISING ***** FPO ***** SENIOR COMMUNICATIONS ADVISOR 04 463 2905 · [email protected] Placeholder for Nick Butcher · 04 463 2910 PRINTING AND DISTRIBUTION FSC Certificate [email protected] Format Print, Petone, Wellington PLEASE ***** FPO ***** COMMUNICATIONS ADVISOR Angharad O’Flynn ISSN 0114-989X (Print) RECYCLE 04 463 2902 · [email protected] ISSN 2382-0330 (Digital) NEW ZEALAND LAW SOCIETY December 2018 · LAWTALK 924

NEW ZEALAND LAW SOCIETY

Working towards healthy, safe, respectful and inclusive legal workplaces in Aotearoa New Zealand

after its launch. We will do this. This year has been an extremely important one One other major initiative is for the legal profession. Any review of 2018 will always worth highlighting. The regulatory focus on the wide-ranging conversation about how to working group, chaired by Dame change the culture of bullying and harassment which Silvia Cartwright, will present its exists in some legal workplaces. report to the Law Society Board this No, it isn’t everyone and every workplace, but it’s too month. Established earlier this year, many and it’s enough to tell us we have a problem. If the five-member working group has we don’t address it as a community and as individuals, spent much time and effort looking as a profession we won’t be sustainable. at the existing regulatory framework, So, how are we going? systems and reporting processes to Near the end of 2018 I think we can be heartened that ascertain whether they are appropri- our profession is genuinely tackling the many issues ate for taking action on harassment involved. We have some distance to travel, but our jour- and inappropriate behaviour in legal ney has begun. The discussions which have developed workplaces and making recommen- and emerged have been open, honest and sometimes dations for change. The report will personal. There is no doubt that the courageous actions be made public after this issue of of some people have brought into the light issues and in place which we can feel very LawTalk is published. Watch for it some assumptions which needed to be challenged. positive about. The 0800 Law Care on the Law Society website. Throughout this year there has been a lot of focus phone line, the online reporting Alongside ensuring a fair and just on the Law Society and its role and responsibilities in form, the model sexual harass- workplace culture, as lawyers we are working to address these major problems. Where are the ment policy and guidelines, sit all committed to a fair and accessible boundaries between individual responsibility, employer alongside an increasing range of system of justice. This issue con- responsibility and regulator responsibility? resources and guidance. There have tains several articles which look at I can confidently state that the New Zealand Law been conferences, workshops and elements of our justice system. The Society has fully embraced the challenge of being a other meetings around the country, Chief District Court Judge is seeking leader in addressing the cultural issues and supporting including in our law schools. The a more diverse judiciary and I would the legal community to create healthy, safe, respectful Culture Change Taskforce will be urge you to read her comments (page and inclusive legal workplaces. Where people’s gender, developing ways of driving and 78). We also look at the innovative ethnicity, cultural background or sexual orientation is guiding systems and culture change Te Pae Oranga and the Alcohol truly respected and valued. Where our people are safe within the legal community. There is and Other Drug Treatment Courts and able to thrive as professionals. a real commitment and energy out (which are holding an important This can only happen if the profession comes along there and it will make a difference. conference in Auckland in January). with us. We must all accept that enduring change will Midway through November The Secretary for Justice, Andrew only happen if each person in every legal workplace there was a very positive indicator Bridgman, is moving on after over takes responsibility. As I said in my letter to the profes- of the change which is happening: seven years in the role and his views sion in May, we are all accountable to our friends, our we obtained the 100th signatory to on our justice system are canvassed. families, our clients and our colleagues for demanding the Gender Equality Charter, which We also background the Criminal nothing less than complete integrity in our own and was our goal for 2018. This means Cases Review Commission. others’ behavior. Every one of us is accountable for the that over 2700 lawyers – 20% of our So, it’s been a big year. I wish you standing of our profession in our communities. I have profession – are covered. We have all a safe and relaxing holiday. been greatly heartened by some of the changes and set a new goal already: we want 30% responses I have seen to date. of the profession working in charter Kathryn Beck At the end of 2018 there are a number of initiatives signatories by 12 April 2019, one year President, New Zealand Law Society.

6 LAWTALK 924 · December 2018 NEW ZEALAND LAW SOCIETY

AML/CFT wire transfer guidance provided

The New Zealand Law Society has released guidance which aims to clarify the obligations under AML/CFT legislation of reporting entities which send or receive wire transfers. The Department of Internal Affairs was consulted during preparation of Wire Transfers under the AML/CFT Act. This can be downloaded from the New Zealand Law Society website, under Practice Resources ▹ Practice Areas ▹ Anti-Money Laundering/Countering Funding of Terrorism. The guidance notes that there is much confusion about the nature and extent of a law firm’s obligations Law Society tribute under the AML/CFT Act in relation to funds received into a trust account. It says this seems to be because to Sir Thomas the Act was designed for financial institutions and has been subsequently re-purposed for lawyers and other Eichelbaum professionals. The result is that some obligations are not easily identifiable or understood. “It seems to be well understood that a law firm may New Zealand Law Society President Kathryn Beck be required to carry out customer due diligence if its said in a statement the legal profession would be sad- client is the depositor or intended recipient of the funds. dened at news of the death of Sir Thomas Eichelbaum However, it is not altogether clear as to when a law firm on 31 October. may have additional reporting obligations in relation “Sir Thomas was Chief Justice from February 1989 to to such transactions.” May 1999. He was the first Chief Justice who had served The guidance says the obligations in relation to as a member of the judiciary before his appointment. He wire transfers are twofold and relate to prescribed was an excellent administrator who was respected by all transactions; and enhanced due diligence and identity as a person of integrity who was also willing to consult requirements. These obligations are distinct, unrelated and seek advice where necessary. The Criminal Appeal and operate in parallel to each other. However, they are Division of the Court of Appeal was established during easily confused. Sir Thomas’ time as Chief Justice and this was a very successful initiative. A humble and very approachable man, his time as Chief Justice was viewed as one where the efficiency of our courts was greatly enhanced. “Sir Thomas was also President of the New Zealand Law Society from 1980 to 1982. Before that he had been Call for review to include very active in the legal profession and was a key player Tenancy Tribunal in enactment of the Law Practitioners Act 1982, which made what were very progressive changes at the time It is disappointing that some significant aspects to the regulatory requirements of the profession. of tenancy law have been excluded from MBIE’s discus- “On his retirement as President, the Law Society’s sion document on reform of the Residential Tenancies Council’s tribute to him included the statement that he Act 1986, the Law Society says in comments on the was a ‘very friendly, humane and cheerful and essen- document. tially, modest man’. By all accounts that summed him up. It says it would be timely to include a review of the “Sir Thomas arrived in New Zealand in 1938 at the Tenancy Tribunal’s composition, jurisdiction and pro- age of seven, a refugee from Nazi Germany. His rise to cedure as the potential outcome of the changes under prominence in the legal profession and the judiciary discussion is that there would be an increase in disputes from such a beginning is in itself a statement of his brought before the Tribunal. There needs to be adequate determination and ability. We have lost an important systems and processes for the often unrepresented contributor to our justice system.” litigants bringing disputes to the Tribunal.

7 Canterbury judges photos digitised

Photos of 42 superior court judges who were NZBA barrister sole exemption active in the Canterbury region have been digitised request from AML/CFT supported and can be accessed on the Law Society website in the Canterbury Westland branch section (under “Judges’ photo The Law Society has supported an application by collection”). The move of the Law Society’s Canterbury the New Zealand Bar Association for a class exemption Library to the Justice and Emergency Services Precinct from the AML/CFT Act of barristers advising on or doc- meant the century-old tradition of displaying the collection umenting transactions involving real property. of judges’ portraits in the library could not continue. The In comments on a Ministry of Justice consultation earlier photos were displayed in the Supreme Court Library paper, the Law Society says the exemption is limited in from 1896 until the courts and law library moved into a new scope and reflects situations where the risk of money Courts Building in 1978. The Judges’ photo wall (pictured) laundering going undetected and unreported appears was a distinctive feature of the High Court Library from low, with the compliance burden disproportionate to 1978 until 2017 when the library relocated to the Justice any risk. and Emergency Services Precinct. The Law Society says it endorses the NZBA’s view that the application of the AML/CFT Act to the work of barristers will be rare. Rule 14.2 of the Conduct and Support for Canterbury Client Care Rules prohibits barristers from carrying out Earthquakes Insurance Tribunal transactional aspects of conveyancing and receiving or holding money or other valuable property for or on The Law Society supports establishment of behalf of another person. a speedy, flexible and cost-effective Canterbury If subject to AML/CFT obligations, the consequences Earthquakes Insurance Tribunal to help resolve ongo- for barristers subject to the intervention rule or instructed ing claims arising from the 2010 and 2011 Canterbury by the Crown will be significant, the Law Society says. earthquakes. In a submission on the Canterbury The compliance obligations are resource intensive, and Earthquakes Insurance Tribunal Bill, the Law Society having a barrister perform what are likely to be the same has made recommendations on a number of matters compliance obligations as their instructing solicitor is with the objective of ensuring proposals in the bill are unnecessary duplication. It is difficult to see how such clear and workable in practice. duplication meets the objects of the AML/CFT Act.

8 LAWTALK 924 · December 2018 NEW ZEALAND LAW SOCIETY

Concern at information sharing Measures to improve LCRO extension processes welcomed proposal fairer for complainants and lawyers, The New Zealand Law Society and boost the LCRO’s consumer has welcomed the third reading protection role.” The Law Society says it has of the Tribunals Powers and Mrs Ollivier says the Lawyers significant concerns at a proposal Procedures Legislation Bill. Complaints Service – which is to extend the Approved Information The legislation includes provi- operated by the New Zealand Law Sharing Agreement (AISA) between sions which will make the resolu- Society – is often mistaken as being Inland Revenue and the Police to tion of complaints against lawyers part of the LCRO, which is an inde- include the Serious Fraud Office more efficient and timely by giving pendent body administered by the and New Zealand Customs Service. additional powers to the Legal Ministry of Justice. It says using taxpayer information Complaints Review Officer (LCRO). “There is a widespread misper- for non-tax purposes unjustifiably The LCRO is an independent body ception amongst lawyers and limits taxpayers’ fundamental rights that reviews decisions of standards complainants that the Law Society and undermines the integrity of the committees (made of up lawyer is responsible for the LCRO delays,” tax system. and non-lawyers) on complaints she says. In a submission to Inland Revenue involving lawyers. Mrs Ollivier says that apart from the on a discussion document on the Law Society Acting Executive delay issue, the decisions of the LCRO proposed extension, the Law Society Director Mary Ollivier says the Law office are generally well received and says the extension means that the Society and the LCRO have been it is apparent that a lot of thought and coercive and intrusive powers in concerned for many years about care is put into its decisions. ss 16-19 of the Tax Administration the LCRO’s backlog of cases and The amendments, some of which Act 1994 given to Inland Revenue resulting delays. will enable the LCRO to strike out to enable it to efficiently administer “The backlog is currently sitting unmeritorious applications for revenue collection will be used to at its lowest figure for many years review and where appropriate to assist other departments of state at around 380 whereas it has pre- determine a review on the papers, which do not have the same powers. viously been as high as 600,” Mrs should have an immediate and “The right to be free from Ollivier says. significant impact on reducing the unreasonable search and seizure “The changes in the bill will LCRO’s backlog. The new legislation and the privilege against self-in- result in further improvements in also provides for more than two crimination, are fundamental in a the number of decisions made, be deputies to be appointed. free and democratic society. Any limitation of those rights must be properly scrutinised and clearly justified. Efficiency of government operations is an inadequate rationale. Every infringement is ‘undue’ unless demonstrably necessary,” the submission says. “The discussion document has Trusted practice management not made a persuasive case for the proposal to extend the existing software for NZ lawyers ASIA. There is very little informa- Easy to learn, easy to use. Save time and tion provided in the examples about ! the problems experienced by the increase profits. That’s what users say requesting agencies. As a result, the New: Document management & Internet banking. Free installation and circumstances in which it is envis- training. Visit our website for testimonials from firms just like yours. aged the SFO or Customs might ask for information is not clear from the www.jpartner.co.nz [email protected] 09 445 4476 JPartner Systems Ltd discussion document.”

9 NEW ZEALAND LAW SOCIETY December 2018 · LAWTALK 924

Ambit of new Building Library kiosk Act offence provisions upgrade completed The Law Society has completed questioned upgrades to its legal information access kiosks which are available inform a tenant with a legal right around New Zealand. Members Proposed new offence provi- to occupy. The submission says it of the legal profession are able to sions in the Building Amendment should be an element of the offence access over 450 regularly updated Bill 2018 relating to interference that the person knew or reasonably legal databases through 46 desktop with or access to an investigation ought to have known that the place computers located at 32 sites man- site are drafted more widely than is was an investigation site. aged by the Law Society Library. necessary or appropriate, the Law “The offence is also arguably too The upgrades means that as well as Society has said in a submission to wide in the sense that access, for a much faster processing speed for the Transport and Infrastructure example to deliver goods, might not improved searching of the databases, Committee. The bill gives powers interfere with the investigation in lawyers can save to a USB drive, email to investigate a building failure in any way but would still technically and attach documents using personal relation to a defined investigation be an offence.” webmail accounts, and open and site. The Law Society says it consid- print Word and PDF documents. No The Law Society points out that ers it is inappropriate to create password is required. The kiosks log the offence applies even if there wide-ranging offences and then rely off automatically after 20 minutes has been no notification of the site. on the reasonableness of officials as of non-activity. Each time a kiosk is There could also be problems if an to whether or not individuals are logged on, all existing settings are owner who was notified did not prosecuted. re-written so any changes or saved files from the previous user are erased. Problems in bill with Drafting issues in lack of consultation and member’s bill A Law Society submission to the jurisdictional overlaps Social Services and Community Committee on the KiwiSaver (Foster Parents Opting in for Children in Resolution of any jurisdictional overlaps between the Fisheries their Care) Amendment Bill says fur- Act and the changes to the Conservation Act 1987 made by the Conservation ther analysis and drafting changes (Indigenous Freshwater Fish) Amendment Bill would be appropriate, the are needed to ensure the legislation Law Society says in a submission to the Environment Committee on the bill. if fit-for-purpose. The member’s bill It also notes that overlaps with other legislation have not been addressed. proposes to facilitate KiwiSaver “The desirability of a fragmented legislative management regime for indig- accounts being opened for chil- enous freshwater fish requires careful and comprehensive consideration.” dren in the care of an adult who is The Law Society also points out that a key constraint on the bill was the neither their parent nor guardian. short timeframe before its introduction to Parliament. This meant it was The Law Society says there are tech- introduced without consultation with iwi or other stakeholders, and it is nical difficulties with the proposed questionable whether this is appropriate given the potential implications definitions and it recommends that for some stakeholders including iwi interests, Fish and Game Councils and drafting support is obtained from landowners alongside spawning grounds. experienced parliamentary drafters.

AUCKLAND High Court, Cnr Waterloo Quadrant & Parliament St Legal research — TEL 09 304 1020 E [email protected] CHRISTCHURCH let us do the hard work Justice & Emergency Services Precinct (B2 entrance) TEL 03 377 1852 E [email protected] for you WELLINGTON High Court Building, Kate Sheppard Place entrance TEL 04 473 6202 E [email protected] www.lawsociety.org.nz/law-library

10 LAWTALK 924 · December 2018 PEOPLE · ON THE MOVE

PEOPLE ON THE MOVE

Alternate Environment University of Wellington in 1990 and was Changes at Claro Court judges appointed admitted as a barrister and solicitor in September 1992. He has been a litigation Catherine Deans Judge Michael John Doogan and Judge skills instructor with the Institute of has been promoted Layne Ross Harvey of the Māori Land Professional Legal Studies for some years, to senior associate at Court have been appointed alternate and also practises as a youth advocate. Claro. Catherine, who judges of the Environment Court from 29 was awarded a 2017 October 2018. Catherine Shirley-Brown Pegasus Scholarship, Judge Doogan was appointed to the joins Simpson Grierson started at Claro in 2014 Māori Land Court on 25 January 2013. He is after returning from based in Wellington and provides support Catherine Shirley- studies overseas. She works with a wide for hearings around the country although Brown has joined range of Claro’s health sector clients, with he primarily hears cases in Masterton, Simpson Grierson’s a special interest in public health law and Levin and Wellington. Wellington commercial professional disciplinary cases. Judge Harvey was appointed to the law team as a Special Claro has also appointed Patrick Wynne Māori Land Court on 1 September 2002. Counsel. Catherine as a solicitor, based in its Christchurch Based in Rotorua, he is the resident judge will become a partner office. Patrick has a double degree in for both the Aotea and Tākitimu Districts with the firm after law and commerce from the University of the Māori Land Court, hearing cases completing New Zealand Law Society of Otago. He was admitted to the bar in in New Plymouth, Hāwera, Whanganui, requirements. She has a particular focus on September 2018. Levin, Palmerston North, Wellington and cross border M&A and transactions involv- Hastings. ing financial sponsors, and brings con- New staff at siderable experience advising businesses Buddle Findlay Jeanine Mitchell across a range of industries, including real now North Harbour estate, infrastructure, retail, energy, IT and Annie Cao has joined Law partner finance. Catherine was previously based Buddle Findlay’s in London, including the last six years as Christchurch office as Jeanine Mitchell has partner at international firm Bryan Cave a senior solicitor in the been made a partner Leighton Paisner. litigation team. Annie at North Harbour Law, advises on general civil effective 1 October 2018. Kiriana Tan appointed to litigation, insurance Jeanine was admitted Family Violence Death disputes arising out of in 2005 and has a Review Committee the Canterbury earthquakes, local govern- background in civil ment issues and insolvency matters. Before litigation. Since joining Hamilton barrister joining Buddle Findlay, Annie worked at North Harbour Law in 2011 she has worked Kiriana Tan h a s another firm in Christchurch and was a in most areas of general practice, with a been appointed as a High Court judges’ clerk. particular focus on trusts and relationship member of the Family Anna Parker has property. Violence Death Review rejoined Buddle Findlay Committee until May as a senior associate Brett Crowley 2020. Kiriana, who in the public law appointed Wellington practises from Te Kōpū team. Anna advises Public Defender Chambers, Hamilton was appointed on competition, con- by the Board of the Health Quality and sumer, and regulatory Brett Crowley has Safety Commission for her expertise in matters, including been appointed law and experience working in the area merger clearances, cartel investigations, Wellington’s Public of family violence. She joins Professor Mark economic regulation of infrastructure, Defender. Brett is an Henaghan as the other legal professional on regulatory processes, and fair trading. experienced criminal the committee. The committee is an inde- Before her return to the firm, Anna law practitioner with pendent expert committee that reviews worked in the competition and regulation more than 20 years’ and advises the health, social and justice team at an international law firm based experience in trial and sectors on how to reduce the number of in Melbourne. appellate work. He graduated from Victoria family violence deaths.

11 ON THE MOVE · PEOPLE December 2018 · LAWTALK 924

Parker & Associates Two winners of Gold Sally McMillan has makes appointments Medal in Law practised in Otago for most of the last Wellington litigation firm Parker & Nichola Hodge and Jonathan Sanders 30 years, initially as a Associates has appointed a new partner were joint winners of the Gold Medal in Crown prosecutor, then and promoted two associates. Law for the 2017 University of Canterbury as a litigation partner at James Wollerman graduates. The award has been presented Anderson Lloyd before was appointed part- to Canterbury law graduates since 1883, setting up Polson ner in September 2018. first by the Canterbury District Law Society McMillan in 2011. She practises relation- James specialises in and now by the Canterbury Westland ship property, criminal and immigration civil litigation and branch of the New Zealand Law Society. law and is a NZLS-qualified mediator and alternative dispute res- The latest awards were presented by member of AMINZ. olution with a focus on Canterbury Westland branch president Sally and partner Simon Milne relocated construction, insurance Grant Tyrrell. Nichola Hodge is a judge’s the firm to Dunedin’s Octagon in March and and property related disputes. James has clerk for Justice Glazebrook at the Supreme have added four new staff in recent months. extensive experience representing clients Court and Jonathan Sanders works in the in property damage and insurance claims employment law team at Duncan Cotterill. Anna McConachy joins arising from defective design and construc- Gordon & Pilditch tion work. Imogen Edwards Danielle Thorne promoted at Anna McConachy has joined Rotorua has been appointed Wynn Williams Crown Solicitor Gordon & Pilditch. Anna an associate. Danielle was admitted as a barrister and solicitor joined Parker & Wynn Williams has promoted Imogen in September 2011 after graduating with Associates in January Edwards from solicitor to associate in its LLB(Hons) and BSc degrees from the 2015, and since then has resource management and environmental University of Otago. She worked at two regularly represented law team. Imogen joined Wynn Williams large Auckland firms before her move to clients in complex, mul- in 2014 and was admitted as a barrister Gordon & Pilditch. ti-party construction related disputes. She and solicitor in December 2015. She has has particular expertise acting for clients developed particular experience with Shine Lawyers in representative class actions. district plan reviews, urban development appoints Angela Michael Riordan and land use planning, and disclosure of Parlane as director has been appointed an official information by local authorities. associate. He joined Shine Lawyers has Parker & Associates McMillan&Co. launched appointed Angela in February 2018 and Parlane as a director specialises in civil The Dunedin law firm Polson McMillan has from 1 November 2018. litigation, with a par- been renamed McMillan&Co. The name Angela has a wealth ticular focus on trust change follows the retirement of David of experience in civil and company disputes. Michael also has Polson in 2017 and reflects the current litigation, insurance a background in resource management and ownership of the firm. McMillan&Co. litigation and building local government law. specialises in private client work. defect cases. She has extensive experience Karen Ryder joins MinterEllisonRuddWatts

Karen Ryder has been appointed a Special Counsel in MinterEllisonRuddWatts’ property and real estate team. Karen was previously at global firm Baker McKenzie in Sydney for 22 years, including 15 years as a partner in the commercial real estate team. She acted for European, US and Asian real estate funds on their Australia and New Zealand real estate portfolios.

12 LAWTALK 924 · December 2018 PEOPLE · ON THE MOVE

in leaky homes and earthquake cases, was with Bell Gully, Auckland and Allen and defending cases in the District Court having represented many Christchurch & Overy, London. and High Court. He also has experience homeowners in disputes with EQC and appearing as lead counsel in appeals to the their insurers. Walker Street Chambers Court of Appeal and has received appoint- opens in Christchurch ments as counsel to assist the District Court Australian honour for and High Court. At present the focus of Stewart Germann Walker Street Chambers opened in Anselm’s practice is on the defence of Christchurch recently, with seven barris- those charged with serious criminal and New Zealand franchise lawyer Stewart ters providing a range of criminal, civil, regulatory offending. Germann has been honoured in Melbourne family and employment legal services. Dr Amy Lake specialises at this year’s Franchise Council of Australia Anna Sandiford of The Forensic Group and in family law and has Legal Symposium for his ‘outstanding Glynn Rigby of Zavést Private Investigators over 10 years’ experi- contribution to franchising’. He was pre- also keep offices at Walker Street Chambers ence acting for clients sented with an award in recognition of his as associate members. from all over New longstanding legal services to franchising Kathryn Dalziel is Zealand in proceedings for over 30 years. a senior Christchurch relating to relationship civil, employment, property issues, care Sir David Williams privacy, and legal and protection and contact arrangements QC elected Royal ethics lawyer. She has for children, and Domestic Violence Act Society Fellow now joined the Bar applications. Amy is regularly appointed and continues to act as lawyer for child and has a particular Auckland University for a wide variety of interest in assisting vulnerable partici- Honorary Professor of agencies and individuals including state pants in Family Court proceedings. Amy Law Sir David Williams sector and private sector organisations, presents at the Child Matters New Zealand QC has been elected a international corporations, industry based Diploma in Child Protection course, and is Fellow of the Academy companies such as health, technology the chairperson of the Christchurch Family of the Royal Society Te and engineering, and boards of trustees. Court Association. Apārangi, in recogni- Kathryn continues to lecture in Legal Ethics Kathy Basire was a tion of his research, and Employment Law at the University of Crown prosecutor for scholarship and the advancement of Canterbury. 10 years prosecuting knowledge in the areas of constitutional Kerryn Beaton is a serious and complex law, colonial legal history and the Treaty senior criminal lawyer criminal trials. She of Waitangi. He is one of 20 new Fellows with over 20 years’ recently joined the and three Honorary Fellows elected this experience defending independent Bar and year for their distinction in research and and prosecuting all her practice includes advancement of science, technology or types of serious crimi- criminal trials as well as appellate and the humanities. He will be inducted in nal cases in the District parole work. Kathy is an experienced February, 100 years after the first 20 Fellows and High Courts. She is appellate lawyer. She has an interest in were inducted in 1919. an experienced appellate lawyer and has restorative justice and alternative justice held appointments as counsel assisting having previously been a facilitator and Liz Lim joins Tompkins the Royal Commission of Inquiry into board member of Restorative Justice Wake partnership the Pike River coal mine disaster, and as Services Otautahi. She has a particular a United Nations legal officer and inves- interest in assisting mental health patients Liz Lim has joined tigator in Cambodia. Kerryn is a member in the criminal justice system. Tompkins Wake as of the NZLS Legal Services Committee, is Josh Lucas is a a partner (subject to a faculty member of the NZLS Litigation criminal lawyer who New Zealand Law Skills Programme and acts for people charged Society approval). She regularly teaches advo- with a variety of serious has more than 15 years’ cacy skills to Police and criminal offences in the New Zealand and inter- in-house prosecutors. District and High Court national experience in Anselm Williams is a and on appeals to the banking and finance and has acted for criminal barrister with Court of Appeal. He has originators, borrowers, funders and trus- more than 10 years’ worked as both a defence lawyer and a tees. Before joining Tompkins Wake, Liz experience prosecuting Crown prosecutor during the last 10 years

13 ON THE MOVE · PEOPLE December 2018 · LAWTALK 924

and appears as lead counsel in jury and David also worked in the M&A transac- set business targets and devised specific judge alone trials. Josh was a District Court tions team at Ernst & Young in London plans that have been implemented across Judges’ Research Counsel prior to becom- and Deloitte in New Zealand. His expertise the business and have been fundamental ing a lawyer and has presented seminars includes multinational and cross-border to business success. The Excellence in on a wide range of criminal matters to taxation, corporate tax, disputes with fiscal Community Contribution award is a new junior lawyers. authorities and IR audits. category to recognise a company for out- Chris Nolan is an Randeep Robinson standing support and involvement in the employed barrister joins finance, projects community. with four years’ expe- and restructuring. She rience in a broad range is a senior banking and Jon Calder Waikato of litigation. Chris has finance lawyer with CEO of the Year a background in the nearly 19 years’ inter- NGO sector and was national experience in The chief executive of an advocate before London, Singapore and Tompkins Wake, Jon practising law. He acts for defendants in New Zealand. Ran has strong experience Calder, was named criminal and regulatory prosecutions in the with all aspects of banking law and reg- CEO of the Year at District and High Courts including appeals ulation, is a specialist in corporate and the Westpac Waikato and jury trials. Chris also appears before asset financing and has advised on local Business Awards on the Parole Board and tribunals, and acts and multi-jurisdictional transactions. 2 November. He took for clients involved in employment and up the role at the civil disputes. Awards for Conveyancing Hamilton-headquartered firm in January Shop Lawyers 2016 after time as chief executive of the K3 Legal appoints Jeff New Zealand National Fieldays and Walters as Director Mystery Creek Events Centre.

K3 Legal has appointed German honour Jeff Walters as a for Hesketh Henry director. Jeff is a spe- managing partner cialist in property and construction law. After Hesketh Henry man- obtaining a law degree aging partner Erich from the University of Bachmann, has been Auckland he started his The Conveyancing Shop Lawyers awarded the Cross of career with Chapman Tripp and then Bell has won two awards at the Westpac the Order of Merit with Gully. In 2012 he joined Lowndes as a part- Auckland Business Awards for the South Ribbon of the Federal ner for five years, followed by 18 months and East region: Excellence in Community Republic of Germany at Anderson Creagh Lai. He advises on all Contribution and Excellence in Strategy (Verdienstkreuz am property matters. and Planning. The firm also won the Bande which is popularly known in Excellence in Strategy and Planning Germany as “Bundesverdienstkreuz”). Two new Special Award in 2014. It recognises a business The award was bestowed by the German Counsel at DLA Piper that has developed a long-term strategy, President in recognition of Erich’s services

DLA Piper has appointed two Special Counsel. David Johnston joins the tax team. He is an international tax practitioner with almost a decade of experience New client relationships at your ﬁ ngertips in London. Returning to New Zealand, he New Zealand’s independent spent nearly three years online legal marketplace as Fonterra’s Regional Tax & Customs www.consensus.nz Manager for Asia, Middle East & Africa.

14 LAWTALK 924 · December 2018 PEOPLE · ON THE MOVE

to the nation and the bilateral trading Pip Greenwood to retire January 2019. Organiser Scott Donaldson, relationship between New Zealand and from Russell McVeagh a lawyer with AWS Legal in Queenstown, Germany. The Order of Merit is awarded says 10 to 12 teams are expected to compete by the President to German nationals as Russell McVeagh part- in the World Cup in two divisions and New well as foreigners as a high tribute for their ner Pip Greenwood Zealand is looking to field teams in both achievements and outstanding services. has announced she will divisions. Anyone who is interested in par- Erich emigrated to New Zealand with his retire from the firm in ticipating can call Scott Donaldson on 022 parents at the age of 15, completed his sec- the first quarter of 623 0071 or email [email protected]. ondary schooling at Auckland Grammar and 2019. A statement says studied law at the University of Auckland. she delayed her plans to Lawyers reappointed He worked at two Auckland law firms before transition into govern- to Mental Health joining Hesketh Henry where he practises ance full-time and expand her directorship Review Tribunal corporate/commercial law acting for a vari- roles at Fisher & Paykel Healthcare and Spark, ety of local and international clients. He has in order to help lead the firm through the The Minister of Health has reappointed also been closely involved with the German challenges it has faced in the lead-up and five lawyers to the Mental Health Review New Zealand Chamber of Commerce since following Dame Margaret Bazley’s Report. Tribunal. They are James Wilding its inception and as its President for over Pip has been with Russell McVeagh for 18 (Christchurch, Convenor), Michelle 15 years. Erich is also Honorary Consul for years, with over 10 years on the board. Duggan (Nelson), Nigel Dunlop (Nelson), Germany in Auckland and he has held this Robb Newberry (Wellington), Robyn von role for the past 11 years. New lawyer and practice Keisenberg (Auckland). manager join Juno Legal The tribunal undertakes a range of stat- Final sitting for utory functions, primarily reviewing the Judge Murfitt Gurleen Bains has condition of psychiatric patients, including joined collabora- special and restricted patients, who are A final sitting for retiring District Court tive in-house legal subject to the Mental Health (Compulsory Judge Robert Murfitt will be held in services provider Assessment and Treatment) Act 1992. It sits Christchurch on 19 December 2018. Judge Juno Legal as a Juno throughout New Zealand in panels of three, Murfitt, who holds Family and Youth Court Lawyer based in comprising a lawyer, psychiatrist and com- warrants, graduated LLB(Hons) from Auckland. Gurleen is munity member. The roles are part-time. Canterbury University in 1971 and was the former General admitted in 1972. He practised in law firms Counsel at Chevron New Zealand and Queen’s Counsel until 1996 when he became a barrister sole, Senior Legal Counsel at Genesis Energy, appointments specialising in family law. He was sworn and she has an energy, infrastructure in on 10 March 2004. and utilities background. Prior to moving Unfortunately the Queen’s Counsel in-house, she was in private practice in appointments for 2018 had not been Gary Hughes appointed commercial property. She has an LLB and announced when this issue of LawTalk TRACE NZ partner a BSc in Chemistry. went to print. Details of the appointees Rachael van Rij has can be found on the Law Society website in Auckland barrister joined as Juno Practice our section People in the Law/On the Move. Gary Hughes, of Manager based in Akarana Chambers, Wellington. She is a Contributing information has been appointed by qualified legal execu- to On the Move TRACE International tive and experienced Brief summaries of information about Inc as its New Zealand practice manager. promotions, changes in law firms, local partner lawyer. recruitment and retirement are pub- TRACE is a US-based, Cricketing lawyers lished without charge in On the Move. globally renowned, standard setting sought Please send information as an email and training organisation in the field of or MS Word document to editor@ anti-bribery and corruption, working New Zealand will be hosting the Lawyers’ lawsociety.org.nz. Submissions with pro bono experts in 150 countries to World Cup for cricket in Hamilton over the should be three or four sentences help multinational firms avoid corruption 2019/2020 season. A team is being assem- without superlatives and may be issues. bled to represent New Zealand and it will edited to conform to the format used. warm up with a two-day match against A jpeg photo may be included. Australian lawyers in Hamilton on 7 and 8

15 PROFILE · PEOPLE December 2018 · LAWTALK 924

PEOPLE PROFILE Seamless return to the Bar for former Attorney-General

BY CRAIG STEPHEN

He would like to focus on arbi- Having been a “lawyer in poli- Always in the profession tration but would also likely draw tics”, former Attorney-General Chris “I never considered myself out of on his experience in commerical Finlayson QC says he will find the the profession. Technically, I was litigation, and hopes to get “good transition back to law an easy one. head of the profession and I was civil and commercial work”. He has Mr Finlayson was Attorney- an Attorney-General with a deep represented many iwi over the years General throughout the nine years interest in the law, and so I kept a and would be willing to help any iwi of the National-led Government, very close eye on what was going with particular issues. as well as being Minister for Treaty on. Some people are political law- Mr Finlayson says he intends to of Waitangi Negotiations and the yers but I was always a lawyer in give his valedictory speech in the Government’s spy agencies minister. politics. final week of Parliament before it Last month he revealed he would “I always maintained my prac- breaks for the summer, and to be out be leaving Parliament to return to tising certificate throughout my of Parliament altogether toward the the Bar. Parliamentary career so it is not end of January to do further work on “It has always been my intention as though it is going to be a mas- a book he is writing on the Crown- to return to the Bar. Litigation has sive change for me. There will be Māori relationship. been my life. I never intended to some detail to take in – take for While his hand has been forced be a professional politician so, example, Continuing Professional by New Zealand First going into having done what I wanted to do Development. I’ve been part of that government with Labour after in Parliament, it was always a case for some time, and I was audited a the 2017 election, rather than with of back to the Bar I would go,” he few years ago, so I am aware of the National, he says he already had a told LawTalk from his spartan office need to take stock in some areas, provisional date for leaving before at Parliament. but generally speaking, going back that decisive election. “I was very lucky to have nine to my former life, one would hope “Bill English asked me what my years as a minister of the Crown. I it would not be a great deal.” intentions were before the elec- held a variety of portfolios but the tion, and I replied ‘basically do the constant throughout that period Leaving the capital same job for about another year/18 was the Attorney-General and the Mr Finlayson was admitted in months then go’, so I never intended Minister for Treaty of Waitangi February 1981 and was a partner to serve out the full term even if we Negotiations.” with Brandon Brookfield and Bell had won a fourth term. I wanted to Only Rex Mason (1935-1949) and Gully. finish certain settlements and then James Prendergast (1865-1876) After leaving Bell Gully in 2003 he move on.” were Attorney-General for longer. established Barristers.Comm with Mr Finlayson’s Administration Of the post-war politicians in the other barristers in Wellington. He of Justice (Reform of Contempt of role, Ralph Hannan served a similar was elected a National Party list Court) Bill was picked out of the amount of time – nine years, from MP in 2005. Mr Finlayson became biscuit tin to be considered and is 1960 to 1969. a Queen’s Counsel on 13 December currently at the select committee Mr Finlayson says that, while a 2013. stage. part of the John Key and Bill English He will be going back as a barrister It will “ensure that court hearings National-led governments, he has sole, but in Auckland: “because the are not disrupted, trials are not prej- always been the law profession’s sort of work that is available for a lot udiced by unfair publicity and that man in the Beehive and will there- of lawyers in Wellington wouldn’t jurors decide cases only on lawfully fore fit seamlessly back into the initially be available for me, such as admitted evidence." profession. working for the Government”. It is intended to allow judgments

16 LAWTALK 924 · December 2018 PEOPLE · PROFILE

there is quite a difference between that and behaving in such a way that you undermine confidence in the administration of justice.” International role While the role of Attorney-General permitted him to appoint judges, the highlight of his time in Government was appearing on behalf of New Zealand at the International Court of Justice in 2013. “I was responsible for the appointment of many judges and that is a hugely significant area and it’s one that we are so lucky, as a country, to have that system of appointing rather than the fiasco that took place in the United States recently [Brett Kavanaugh’s nomination to the Supreme Court]. “On a professional level I would have to say the highlight was the appearance in the International Court of Justice when New Zealand intervened in the case brought by Australia against Japan over whaling in the Southern Ocean. I was determined that I wouldn’t simply breeze in and read out some submissions then go, so I took a great interest in the case and I was in The Hague for about 10 days. “It was a very, very interesting matter and I have to say that, from a lawyer’s point of view, the ability to appear in the International Court of Justice is quite something. It is and court orders to be enforced and ensure that the It has always very rare and I think only Martyn judiciary is protected, as far as practicable, from false been my Finlay in 1973 and Paul East in 1995 attacks which undermine public confidence in the intention to have had that opportunity.” system. return to the Bar. On the subject of the reap- While it began as a member’s bill it has now been Litigation has pointment of Queen’s Counsel, picked up by the Government. “I said to Andrew Little been my life. I Mr Finlayson says he was merely (current Minister of Justice) that it raised serious con- never intended to following the wishes of the stitutional questions and he agreed, he was right on be a professional profession. top of the issue.” politician so, “I acted in response to what the The Wellington-born MP says the intention of the bill having done what profession wanted. And I think is not to stop criticism of judges’ decisions. I wanted to do in you’ll find that of the four or five “It would be unthinkable to say that if you criticised Parliament, it was who had been made SCs, they a judge’s decision you could end up in the dock for con- always a case of converted very quickly, just like tempt of court. You have to be able to criticise judgments back to the Bar I people who had post-nominals and do so robustly. Academics do it all the time, but would go and were invited to convert to

17 PROFILE · PEOPLE December 2018 · LAWTALK 924

knighthoods and damehoods – they converted very quickly. The SC system didn’t really appeal to people. “I think the system works very well and that we had a couple of large appointment rounds and now it is down to about five or six a year and that’s what I would expect it to be from now on.” A changing position He was not keen on the idea when asked if the appointment of QCs should be extended to non-barristers. “I think that the Bar is strong, the New Zealand Bar Association is doing an excellent job and I don’t think we’ll ever get to a stage where we have a split profession but I can see, looking at historical trends over the nearly 40 years I have been in the law, that the Bar is growing and I don’t see any reason why it would stop.” And he believes that the role of Attorney-General has changed quite a bit and will continue to do so. “In the old days the Attorney- General would almost automatically also become the Minister of Justice, with a couple of exceptions. But post-1990 the Attorney-General has had more of a watchdog role and that includes being a watchdog over the Minister of Justice’s work and I am thinking particularly of vetting much have an Attorney-General model in the English for the purposes of the Bill of Rights, On a professional line with one or two extra responsibilities. so the two portfolios actually don’t level I would “I think the role is very important and central to the sit together anymore. have to say the good operation of government. But the Attorney-General “There is a case for the Attorney- highlight was the has to have his or her mind across most things for Bill of General not holding another port- appearance in Rights compliance and rule of law issues. The over-arch- folio, but in our system that would the International ing responsibility of the Attorney is to make sure that be rather hard to do. Actually, Treaty Court of the business of government is conducted in accordance negotiations go hand-in-hand with Justice when with the rule of law. And also that the Attorney-General being the Attorney-General. New Zealand is the first major point of contact with one of the other “John Key asked me to look intervened in the branches of government, the judiciary, so it is a very after the GCSB and the SIS after case brought by important and sensitive role.” 2014. There would have been some Australia against After a visit to the University of Utah in the United tensions there with the intelligence Japan over States to talk about legal personhood in natural system and the role of the Attorney whaling in the resources, such as rivers, Mr Finlayson expects to be but that was managed. We very Southern Ocean back at the Bar by late February/early March. ▪

18 LAWTALK 924 · December 2018 PEOPLE · PROFILE

PEOPLE PROFILE Singing lawyers

Lawyers seem to like climbing mountains for some reason. They also like to sing – at least in Christchurch, Invercargill and Wellington. Wellington’s Counsel in Concert is based at Crown Law and has been going since 2009. The choir and orchestra are made up of lawyers ▴ Southland lawyers perform at the Justice Christine French and legal staff from around the Commemorative Address Wellington region. Members of the New Zealand Symphony Orchestra and Orchestra Wellington also help out. Counsel in Concert is organised by Merran Cooke, a Crown Counsel in the criminal team at Crown Law. Merran also plays principal oboe with Orchestra Wellington and has worked extensively with the New Zealand Symphony Orchestra. Each year Counsel in Concert performs a large scale charity concert raising funds for the Child Cancer Foundation. Over 60 lawyers are involved in the event. Merran Cooke says the costs of the concert are covered by sponsorship from legal firms and other supporters of the ▴ The Canterbury Lawyers' Choir at the 150th Anniversary Dinner event, which means that everything donated on the day goes to the Child Cancer Foundation. Counsel in Concert’s big event for Up to 50 members of the profession the Little Andromeda pop-up venue 2018 will be held on 18 December have been involved, with a choir of in the Christchurch arts precinct on at 12:15 and 5:30pm at St Andrew’s around 30 being typical for an event. 17 November. on the Terrace in Wellington. Entry Organiser Stephanie Marsden says A specially assembled lawyers’ is by donation, with all proceeds there is a good balance of gender choir was also a feature of this to the Child Cancer Foundation. and ages and all members have been year’s Justice Christine French There is a Christmas theme and involved in the legal profession at Commemorative Address on 12 the concert will also feature jazz some stage. The choir meets weekly October in Invercargill. Those singer Stephanie Bishop as a soloist. and members contribute to the involved were Keri Kereru, Rose A Crown prosecutor and partner at costs of venue hire and also for the Wilson, Audra Teepa (SIT – TWOA), Luke Cunningham Clere, Stephanie services of two musical directors. Tanya McCullum, Fiona Guy Kidd, is also a seasoned jazz, blues and Along with bar dinners and other Katy Baxter, Rosie Welsh, Peter soul singer. legal events, the choir also sang Redpath, Max Taylor-Smith, The Canterbury Lawyers’ Choir with Canterbury Opera’s “Trial by Richard Smith, and John Pringle began singing together in mid-2016. Jury” production this year and at (on guitar). ▪

19 PROFILE · PEOPLE December 2018 · LAWTALK 924

PEOPLE PROFILE The Innovators: Karen Venables, Founder & Co-Director Legal Solutions

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

What does legal innovation looking for technology that can help mean to you? us with these challenges and turn Innovation for us has been around looking at our ser- them into opportunities. We also vices from a clients’ perspective and designing the way have a new generation entering the we practise around what they want or need. Trying to workforce who have expectations identify and remove friction points or double handling that are outside of what a traditional to make us more efficient and responsive to our clients law firm provides. and a better place to work for our staff. We have also worked really hard to create a structure and culture of What developments do continuous improvement where all staff are responsible you see in how legal for identifying areas of improvement. services are delivered? I think that a lot of the research What role does technology and review work that we currently play in innovation? do will be able to be done much Technology is the enabler. It will give us the tools to be quicker by AI and robots. We will able to provide our services more efficiently and in dif- have virtual assistants who may ferent ways so that our clients can easily access them. be able to answer simple questions Research has identified that our clients rank having and undertake administration work. a relationship with their lawyer as more important We will see more and more of our than cost or experience. There are lots of tools coming clients moving to alternative legal to market that will help us do document preparation, service providers. I also think that review and research quicker so we can spend more time we see more specialisation in niche on the relationship with our clients. Our strategic vision We are areas. is to provide an extraordinary customer experience. continually We want clients to leave saying “I can’t remember under pressure What opportunities what legal work they did, but they sure did make us to do things has legal innovation feel good.” quicker and brought to you? cheaper. I think the biggest opportunity What pressures are organisations facing Our clients has been around having better in the delivery of legal services? have become relationships with our staff and cli- We are continually under pressure to do things quicker accustomed ents. We have created a firm that is and cheaper. Our clients have become accustomed to to getting an client-centric and feels comfortable getting an immediate response from Google so they immediate and modern. We have implemented want an immediate response from us. One of our big- response from alternative fee structures depend- gest challenges is around how do we meet our clients’ Google so ing on our clients’ needs. Most of expectations and respond quickly to them when we they want an our clients know in advance how are in client meetings all day. Another challenge is the immediate much their legal fees are going to increase in compliance administration which the clients response from be. This has significantly improved see no value in. We are always scanning the horizon us. our relationship with them. Using

20 PEOPLE · PROFILE

isn’t working well. Once you have identified it, work with your team to roll out a solution. Start with quick fixes, easy wins. This will help create momentum. Sometimes changes don’t work so identify this quickly and change. I first thought innovation was about having the newest, shiniest technology. I’ve come to realise that we all probably have the tools in our firms already. We just need to learn how to use what we already have smarter. Why is it important for legal professionals to continue to learn about legal innovation and leveraging technology? Our industry is in the process of being disrupted by technology and if we don’t change we may find ourselves irrelevant. If we implement technology that streamlines our processes and makes it easier for our clients to deal with us and if we create a work culture that celebrates improvement and development we will continue to attract good staff and clients. Your law firm will be a better place to work and you may even be able to spend more time doing the things you love. ▪ tools like Automio has helped us save considerable time when pre- Andrew King  andrew@lawfest. paring documents, which means nz is organiser of LawFest 2019, we have more time to spend which will be held in Auckland with our clients or improving our on 21 March 2019. Karen Venables processes. We have also created a will be one of the speakers at the culture of continuous improvement event  www.lawfest.nz. which is led by all of the team and has significantly improved staff engagement. What are some of your tips to start innovating Legal Accounting Bureau · Save time and money Kathy Kell or developing an provides comprehensive, · Always know your trust account [email protected] accurate, efficient and timely is balanced and your month end innovative mindset? certificates are filed on time Ph 09 444 1044 management of solicitors’ trust Fax 09 929 3203 accounts. · Our service is completely secure I think the best way to start inno- and confidential www.accountingbureau.co.nz vating is to notice a friction point in Outsource the management of · Trusted professionals with over your firm’s trust account. Either 20 years’ experience your business. It might be a friction come to us or we can come to · 72 law firms currently use our Powered by juniorPartner. between you and your clients or it you remotely. services Practice Management software you can trust. might be an internal process that

21 COURTS December 2018 · LAWTALK 924

COURTS Court opening hours over the 2018/19 holidays

The Ministry of Justice has provided information on the hours of courts and tribunals over the Christmas and New Year period.

Supreme Court Close: 3pm, Monday 24 December 2018. Close: 1pm, Monday, 24 December 2018. Open: 9am, Friday 4 January 2019. Open: 9am, Wednesday, 9 January 2019. Blenheim and Greymouth Emergency contact: Kieron McCarron Close: 3pm, Monday 24 December 2018. 021 688 740. Open: 9am, Monday 7 January 2019. Hawera, Huntly, Kaitaia, Morrinsville, Papakura, Pukekohe, Court of Appeal Taupo, Thames Close: 1pm, Monday, 24 December 2018. Close: 5pm, Friday 21 December 2018. Open: 9am, Thursday, 3 January 2019. Open: 9am, Monday 14 January 2019. Emergency contact: Maryanne McKennie Alexandra 027 227 7682. Close: 4pm, Friday 21 December 2018. Open: 9am, Monday 14 January 2019. High Court Gore Close: 5pm, Friday, 21 December 2018. Close: 3pm, Monday 24 December 2018. Open: 9am, Friday, 4 January 2019. Open: 9am, Monday 14 January 2019. Auckland, Blenheim, Christchurch, Ashburton, Dannevirke, Taihape, Taumarunui, Tokoroa, Wairoa, Dunedin, Gisborne, Greymouth, Hamilton, Westport Invercargill, Masterton, Napier, Nelson, New Plymouth, Palmerston North, Rotorua, The following Hearing Courts will not be open over the Christmas Tauranga, Timaru, Wellington, Whanganui, and New Year’s period, and will resume hearings as rostered in the Whangārei New Year: Chatham Islands, Dargaville, Kaikoura, Marton, Oamaru, Emergency contacts: John Richardson Opotiki, Ruatoria, Te Awamutu, Te Kuiti, Waihi, Waipukurau. 027 474 3995 for Auckland, Hamilton, Rotorua, Tauranga, Whangārei; Jane Urgent Family Court applications Penney 027 509 3918 for other North Island Family Courts will provide a national service for urgent applications courts plus Blenheim and Nelson; Sharon over the Christmas and New Year holiday period. Urgent applica- Graham 027 553 4338 for remaining South tions will all be dealt with via the National eDuty platform. Court Island courts. staff and duty judges have been allocated to deal with applications on the following days: District Court Close: 3pm, Monday 24 December 2018. Open: 9am, Thursday 3 January 2019. Mon Tue Wed Thu Fri Auckland, Christchurch, Dunedin, Close 3pm. Closed Closed Open Open Gisborne, Hamilton, Hastings, Hutt Cut-off 12pm 25 Dec 26 Dec 27 Dec 28 Dec Valley, Invercargill, Kaikohe, Levin, Manukau, Masterton, Napier, Nelson, Open Closed Closed Open Open New Plymouth, North Shore, Palmerston 31 Dec 1 Jan 2 Jan 3 Jan 4 Jan North, Porirua, Queenstown, Rotorua, Open Open Open Open Open Tauranga, Timaru, Waitakere, Wellington, 7 Jan 8 Jan 9 Jan 10 Jan 11 Jan Whakatane, Whanganui, Whangārei

22 LAWTALK 924 · December 2018

All urgent Family Court applications are required to be submitted to the registry by 2pm (exception, 12 noon on 24 December) on the days above in order for them to be processed. Any applications received after that time will be considered the following day.

All Employment and Environment Courts Close: 3pm, Monday 24 December 2018. Open: 9am, Thursday 3 January 2019.

Māori Land Courts Close: 3pm, Monday 24 December 2018. Open: 10am, Thursday 3 January 2019.

The Auckland Information Office (3 to 14 January, phone calls diverted to Whangārei) Close: 3pm, Monday 24 December 2018. Open: 9am, Monday 14 January 2019.

Coronial Services Close: 3pm, Monday 24 December 2018. Open: 9am, Thursday 3 January 2019. above. It appears that the appropriate heard from Thursday 10 January 2019 for The National Initial Investigation Office emergency number for the District Court the youth jurisdiction, and Thursday 17 (NIIO) will remain open 24 hours a day. can be obtained by carrying out a search January 2019 for the adult jurisdiction. at www.courtsofnz.govt.nz/utilities/contact/ These applications need to have been filed Tribunals Unit courts and then ringing the phone number in court and received by the EM Bail Team Close: 3pm, Monday 24 December 2018. provided and noting the message details. by Wednesday 3 January 2019. Open: 9am, Thursday 3 January 2019. Electronically Monitored High Court Arrest Courts Bail Applications over The last date for filing EM Bail applica- Any persons arrested over this period will the Christmas Period tions to be heard this year will be Friday be brought to the nearest available court The Department of Corrections EM Bail 30 November 2018. 19 December 2018 is for the initial appearance before a judge, Team has confirmed these dates for the therefore the last scheduled sitting day for Community Magistrate or Justice of the filing and processing of EM Bail applica- all EM Bail hearings to be heard, unless Peace. “Arrested” includes those arrested tions as follows: otherwise directed by a judge. on new charges, on warrant or for breach The first date for hearings of any exist- of bail. If bail is sought and it is not within District Court ing EM Bail applications (filed prior to 1 jurisdiction of the judicial officer presiding The last date for filing EM Bail applications December 2018) adjourned from 2018 into at the first appearance, then any remand in to be heard this year will be Monday 3 the New Year is Friday 1 February 2019, custody (unless there is consent otherwise) December 2018 for the adult jurisdiction, unless otherwise directed by a judge. must be adjourned to the next working day. and Monday 10 December 2018 for the The first date for hearing applications This will allow the bail application to be youth jurisdiction. This makes the week filed in 2018 after the last scheduled sitting dealt with via AVL from the prison (or police ending Friday 21 December 2018 the final day, and new applications filed in 2019, is station) to the nearest, or most convenient, week for all EM Bail hearings to be heard. Friday 1 February 2019, unless otherwise court where a judge is rostered to sit. The first date for hearings of any exist- directed by a judge. ▪ ing EM Bail applications (filed prior to Contacting the courts 1 December 2018) adjourned from 2018 If there are any queries regarding The Ministry of Justice says all courts and into the New Year will be from Thursday, the above time frames, please don't tribunals have emergency contacts availa- 3 January 2019. hesitate to contact the Electronically ble over the holiday period. The emergency The first date for hearing new applica- Monitored Bail Team, on  0800EMBAIL contacts for senior courts are provided tions filed in 2019 can be scheduled to be or  [email protected]

23 AML/CFT · UPDATE December 2018 · LAWTALK 924

UPDATE AML/CFT AML/CFT compliance: Emerging practical issues

BY ISMAIL RASHEED

of the New Zealand Police, subject Section 58 states that before On 1 July 2018 many lawyers to legal professional privilege: see conducting CDD or establishing an became reporting entities under section 42(2). AML/CFT programme, a reporting the Anti-Money Laundering and The New Zealand Law Society entity must first undertake an Countering Financing of Terrorism (NZLS) has published on its website assessment of the risk of money (AML/CFT) Act 2009. Reporting AML/CFT compliance templates laundering and the financing of entities are those who undertake that reporting entities can adapt. terrorism that it may reasonably ‘captured activities’ which includes Some of those documents have expect to face in the course of its activities listed in the definition of a disclaimer saying it is a sample business. The section does not “designated non-financial business document only which has been require a reporting entity to consider or profession” in section 5 of the Act. produced for NZLS to assist lawyers factors related to its entire practice. If you are a reporting entity, at with AML/CFT compliance require- The review will be in the context an organisational level, you are ments; it is intended as a guide only of the practice’s activities that fall required to appoint an AML/CFT and should be adapted to take into within the provisions of the Act. The compliance officer, undertake account a law firm’s particular section requires a firm to consider assessment of the risk of money circumstances including internal its nature, size, the complexity of its laundering and the financing of policies and procedures specific to business, the products and services terrorism that the entity may rea- the law firm; and it should not be it offers, the methods by which it sonably expect to face in the course relied on as definitive statement delivers products and services to of its business, develop an AML/CFT of AML/CFT legal requirements. its customers. Then, it requires the programme, implement and follow To put this in context, I note two reporting entity to consider the that programme, file annual reports underlying aspects of the legislative types of customers, the institutions with the regulator/supervisor, peri- framework: (i) there is no one-size- and the countries it deals with. It odically review your risk assess- fits-all approach, and (ii) a “set and is important that the AML/CFT ment and AML/CFT programme, forget” approach is not appropriate. risk assessment demonstrates the and conduct an independent audit I discuss these aspects below. rationale that was used to assess of your risk assessment and AML/ the risk of facing money laundering CFT programme every two years. There is no one-size- or the financing of terrorism. This You must also vet all staff and give fit-all approach process can be tricky as you must AML/CFT related training to all your NZLS templates are helpful and choose appropriate criteria against partners, senior managers and the could make it easier for some law which your firm will conduct the AML/CFT compliance officer. firms to develop their AML/CFT risk assessment. At activity level, your obligations documents. While those templates Section 57 requires the report- include, but are not limited to, risk have been drafted as general guiding entity to develop an AML/CFT assessment of client matters, under- ance documents, for a busy sole programme that is based on risk standing your customers, carrying practitioner or an under-resourced assessment and identifies several out appropriate customer due dil- SME sized law firm, there may be a areas for establishing policies, pro- igence (CDD), to conduct ongoing tendency to adopt those templates cedures and controls. The reporting CDD, maintain records, and file sus- without appropriately customising entity will have to decide what is picious activity reports (SAR) with them for their own practice. This relevant for its practice. So, each the Financial Intelligence Unit (FIU) may be inappropriate. practice will need to adapt the NZLS

24 UPDATE · AML/CFT

issue in more detail later in this article. Choosing an appropriately qualified auditor Section 59B requires an audit to be carried out every two years by an independent person, appointed by the reporting entity, who is appropriately qualified to conduct an audit and that person must not have been involved in the establishment, implementation, or maintenance of the reporting entity’s AML/CFT programme. For law firms the first audit will be due in July 2020. However, it will be prudent to have your first audit conducted earlier. It will be better to have any deficiencies in your AML/ CFT compliance practices identified earlier than waiting for two years. This may give greater confidence to your Professional Indemnity insurer. On the independence of the auditor, the DIA Guideline says a very large firm with a dedicated audit function would likely be template on AML/CFT programme Appointment of a able to show a sufficient degree of to some extent. compliance officer independence. It is implied in that The AML/CFT compliance officer statement that a small firm with- A “set and forget” plays a crucial role in the firm. The out an independent audit function approach is not person is responsible for adminis- may, in some cases, find it difficult appropriate tering your AML/CFT programme. to show the requisite degree of Criminals continuously adapt their Section 56(3) states that in the independence. Clearly that will be activity to avoid detection and cir- case of a reporting entity that does the case for a sole practitioner or cumvent preventative measures. In not have employees, the reporting small law firm. addition, the evolving nature of the entity must appoint a person to act On the appropriate qualification legal profession and your practice as its AML/CFT compliance officer. of the auditor, section 59B(2) says and the changing characteristics There may be reasons why a the auditor is not required to be a of your clientele mean you cannot sole practitioner may not wish to chartered accountant or qualified to adopt a “set and forget” approach be self-appointed to that role. DIA undertake financial audits. However, to preparing AML/CFT compliance Guideline says if you cannot fulfil considering the scheme and purpose documents. that role, an external person must of the Act, engaging an auditor with Those documents are required be appointed. You will need to sound knowledge of white collar by law to be reviewed on a regular think about how you will manage crimes and experienced in conduct- basis to address emerging risks and information subject to legal pro- ing criminal investigations would be changing circumstances of the prac- fessional privilege and confidential immensely helpful. An auditor who tice that includes, but not limited to, information that will need to pass understands the modus operandi of understanding the customers, the on to that external person. Is that those persons the AML/CFT regime institutions, and the countries the possible at all without waiving legal seeks to restrict will be in a better firm will have to deal with. professional privilege? I discuss this position to effectively advise on

25 AML/CFT · UPDATE December 2018 · LAWTALK 924

your risk reviews and redrafting lawyers, disclosure of privileged communication is per- your AML/CFT programme. FAQs mitted by section 109 of Legal Services Act 2011. Similarly, published by the Financial Markets for lawyers’ trust account audits, NZLS Inspectorate Authority state that your audit will has wide-ranging powers under the Lawyers and be more effective if your auditor Conveyancers Act (Trust Account) Regulations 2008 to understands your industry and has review trust accounts of practices and if necessary to audit experience. communicate directly with clients of those practices. Therefore, as a matter of prudence, So, for those audits, legal professional privilege is a good governance, and to avoid non-issue. potential conflict of interest, my For the purpose of AML/CFT audits, there is no stat- view is that it would be appropriate utory provision that permits disclosure of information to outsource the reviews and audits subject to legal professional privilege to an independent of your practice’s risk assessment auditor. While I acknowledge that lawyers’ trust account and AML/CFT programme to a law records are excluded from the scope of ‘privileged firm that has good knowledge of the communication’ for the purposes of the AML/CFT Act legal profession, audit experience (section 42(2)), CDD and other AML/CFT compliance, and expertise and understands documents may contain information subject to legal AML/CFT law and its complexities. professional privilege. The view that lawyers cannot disclose privileged A legal conundrum communication to their independent auditor under Section 59B requires reporting the AML/CFT regime is supported by the fact that they entities to conduct an independent are not required to disclose such information to FIU audit every two years. Ordinarily (section 40(4)) or even to their supervisor (sections 132(4) the auditor would expect sufficient and 133(5)). So, why would the independent auditors information to be provided for them be entitled to privileged information in the absence to discharge their duties. However, of a statutory provision? The privilege belongs to the lawyers have a duty to protect client and may only be waived with the client’s express client information subject to legal consent. professional privilege and confi- If the independent auditor does not have access to dential information. Underlying sufficient information they cannot give assurance to the the provision of legal services is supervisor that your SAR procedure meets all mandatory an understanding that “the client requirements. All they can do is to provide a Disclaimer must be sure that what he tells his of Opinion. That means, lawyers cannot really have a lawyer in confidence will never be full-proof signed-off audit report from an independent revealed without his consent” (R auditor as your supervisor might like to see. The risk v Derby Magistrates’ Court, ex p B remains with the law firm. [1996] AC 487 at 507, confirmed in Also, the risk of your independent auditor making a New Zealand by B v Auckland District SAR to FIU under section 43 on information that they Law Society [2004] 1 NZLR 326, [2003] The evolving inadvertently come across during the course of their UKPC 38). nature of the audit of your firm - which may have already been with- Recognising the over-arching legal profession held by your firm under legal professional privilege - is importance of the privilege, it is and your serious. So, how do you overcome this conundrum? well established that Parliament practice and I suggest that one sensible way to address these issues may only abrogate legal professional the changing is to instruct an auditor who is within a law firm which privilege through the clearest of characteristics specialises in AML/CFT law and compliance. If you language. This principle was estab- of your clientele instruct another law firm and sufficiently bundle your lished in CIR v West-Walker [1954] mean you audit instructions with instructions to get independ- NZLR 191 (CA) (see also Rosenberg v cannot adopt a ent legal advice on AML/CFT, your already privileged Jaine [1983] NZLR 1, (1983) 1 CRNZ 1 “set and forget” information of your clients at the risk of inadvertent and B v Auckland District Law Society approach to disclosure to FIU by your independent auditor under [2004] 1 NZLR 326, [2003] UKPC preparing AML/ section 43 is protected by another layer of legal privilege. 38 (PC)). For example, when the CFT compliance That gives effect to section 40(4) of the Act on legal Ministry of Justice audits legal aid documents. privilege exclusion for filing SARs and covers your risk.

26 UPDATE · AML/CFT

Penalties for inadequate was seeking $2.6 million from the Rule 8.1 of the Lawyers Client Care or non-compliance defendant for failures in respect of and Conduct Rules 2008 states a law- Inadequate or non-compliance with risk assessments, failure to under- yer’s duty of confidence commences obligations imposed by the Act can take CDD, failure to undertake from the time a person makes a give rise to significant business risks ongoing CDD and account moni- disclosure to the lawyer in relation and legal issues. toring, and failure to keep adequate to a proposed retainer (whether or The penalties for non-compliance records. not a retainer eventuates) and the in the case of an individual, are a So, for a law practice, failure to duty of confidence continues indef- term of imprisonment of not more comply with the Act or inadequate initely after the person concerned than two years and/or a fine of up to compliance can give rise to serious has ceased to be the lawyer’s client. $300,000. For a firm the penalty is a consequences which may include Leaving rules 2.4 and 8.2(a) aside, fine of up to $5 million. In addition, punitive fines, reputational damage, rule 8.2(d) provides that a lawyer the Act also confers upon the court disciplinary action, loss of practising is required to disclose confidential the power to order the imposition certificate, loss or business and pos- information if required by law. The of pecuniary penalties. sible civil or criminal proceedings AML/CFT Act requires lawyers to In Department of Internal Affairs v against one or more lawyers. disclose suspicious transactions Ping An Finance (Group) New Zealand but only if the lawyer has reasonable Company Ltd [2017] NZHC 2363, a An ethical dilemma grounds to suspect and if section case decided under the AML/CFT The Act puts lawyers in an interest- 42(2) (definition of what is not priv- Act in 2017, the High Court ordered ing position by requiring them to ileged communication) applies. the defendant to pay to the Crown report any suspicious transactions It will be a balancing act between $5.3 million for failing to conduct unless it is “privileged communi- observing the provisions of the Act, CDD, failing to adequately monitor cation” although the transaction is protecting clients’ right to confiden- accounts and transactions, entering subject to confidential advice they tial advice, and maintaining privi- into or continuing a business rela- have given. lege in respect of information that tionship with a person who does Legal professional privilege does the lawyer believes on reasonable not produce or provide satisfactory not extend to everything that legal grounds to be a privileged com- evidence of the person’s identity, professionals have a duty to keep munication. It is going to involve failing to keep records, and failing confidential. Legal professional priv- some important judgement calls to report suspicious transactions. ilege protects only those confidential and many of the medium sized and More recently, in Department communications falling under either smaller law firms in particular will of Internal Affairs v Qian Duoduo of the two heads of privilege – advice have to think seriously as to how to Ltd [2018] NZHC 1887, the DIA privilege or litigation privilege. apply this in practice.

27 AML/CFT · UPDATE December 2018 · LAWTALK 924

UPDATE COMPANY LAW

Compliance costs Proposals A law firm may decide that on average the administrative cost of complying for a register with AML/CFT obligations is $35 per client matter (which may be conservative) and the firm has 1,000 new matters every year. of beneficial The firm will therefore charge $35,000 to clients and should receive this sum to meet compliance costs. If all firms decide ownership in to pass on the compliance costs to clients, there is a good chance that firms will have the resources to properly fulfil their New Zealand obligations. If law firms overall determine not to pass on the administrative costs involved in compliance to clients, then BY HENRY BRANDTS-GIESEN I anticipate that there will be a greatly AND NICK BERESFORD increased chance that firms will not fully comply with their obligations. I urge firms to carefully think through and appropriately price the full cost of On 19 June 2018, the Ministry of Business, Innovation and compliance. It is quite possible that in Employment (MBIE) published a Discussion Document proposing a mid-sized firm the responsible partner the introduction of beneficial ownership registers for New Zealand may spend up to 5% to 10% of their time companies and limited partnerships (termed “corporate entities”). overseeing compliance at a cost of say The proposals are driven by recent high-profile cases of alleged $50,000 per annum and the internal direct criminal wrongdoing involving the use of New Zealand-registered cost of staff compliance may easily be corporate entities (whether the proposals would have stopped another $20,000 to $30,000 per annum such wrongdoing is another matter). They also implement FATF when considering the training required, Recommendation 24 into New Zealand law and are part of wider ongoing risk assessments, day to day recent reforms to align New Zealand’s anti-money laundering compliance work and fulfilling audit framework with international standards. requirements. It is quite possible that a mid-sized firm The proposals may incur costs in excess of $80,000 per The Discussion Document sets out three potential options for annum on AML/CFT compliance. Given the reform: serious consequences for noncompliance • Option 1: The introduction of a specific requirement for corporate I anticipate that many firms may decide entities to hold up-to-date beneficial ownership information; that overall they will be able to save money • Option 2: The introduction of a central beneficial ownership and better ensure compliance if they out- register, accessible to law enforcement agencies only; and source aspects of the compliance process • Option 3: Option 2, but with the register being freely accessible and recoup this cost from clients through by the public. MBIE state in the Discussion Document that this the appropriate charges. ▪ is their preferred option. It is proposed that the definition of “beneficial owner” for the Disclaimer: These figures are estimates purposes of the register will align with the definition in New and projections only, based on certain Zealand’s anti-money laundering legislation (which follows the assumptions and conditions, and they internationally accepted meaning). should not be relied on as a basis for One key area requiring further thought is the common situation revising your legal fees or cost of any where a corporate entity (perhaps a company which operates services you may wish to outsource. the family business) is ultimately owned by the trustees of a discretionary family trust. Ismail Rasheed  [email protected] Family trusts are ubiquitous in New Zealand and are often used is the Director and Principal Solicitor of by families with only modest wealth. Successive governments have IR Legal, specialising in Immigration, Tax resisted calls for a register of trusts. However, under option 2 or and AML/CFT laws. 3 (and depending on the finer details of the proposals) a register

28 LAWTALK 924 · December 2018 UPDATE · COMPANY LAW

of trusts would, in effect, be introduced for all trusts which hold an interest in a New Zealand corporate entity. This would increase compliance costs for many family trusts which may prove politically contentious. International comparisons The Discussion Document cites the European Union’s 4th Anti-Money Laundering Directive (4AMLD) as an international example of beneficial ownership registration. Earlier this year the EU amended 4AMLD, requiring the existing registers of beneficial ownership to be made freely available to the public by the end of 2019. This has been met with significant opposition on the grounds that public access to what is (in many cases) private information infringes basic rights to privacy and data protection contained in the European Convention on Human Rights (ECHR). The EU’s own data protection regulator issued an opinion on 2 February 2017 which was highly critical of these aspects of the amendments to 4AMLD. In a recent development, British law firm Mishcon de Reya has commenced which is a nation of small and often fami- legal proceedings in London claiming that ly-owned businesses. A sizeable majority of the proposed public registers breach the businesses with fewer than 20 employees fundamental rights to privacy and data are incorporated. Many of the driving protection enshrined in the ECHR and factors for public beneficial ownership the EU’s recently enacted General Data registers internationally (the vast amount Protection Regulation. Notably, France of prime UK real estate owned by opaque pre-empted 4AMLD by introducing a public corporate or trust structures being one register of trusts and trust-like entities in example) are simply not present in New 2016, only for this to be struck down in its Zealand. entirety on privacy grounds. Given the above developments, there Conclusion is a real possibility that the amendments The proposals Given international developments it seems to 4AMLD allowing public access to the are driven by inevitable that some form of requirement beneficial ownership registers in the EU recent high- for New Zealand corporate entities to col- will be abandoned before the commence- profile cases of lect beneficial ownership information will ment date. alleged criminal be introduced. However, the proposal by There is no specific statutory right to wrongdoing MBIE to introduce beneficial ownership privacy in New Zealand. However, the involving the use registers that are freely accessible by the Privacy Act 1993 and the Privacy Bill (which of New Zealand- public are likely to meet with resistance, is currently before Parliament) set out 12 registered if the reaction to 4AMLD in Europe is any “Privacy Principles”. It is doubtful whether corporate guide. ▪ publicly accessible beneficial ownership entities (whether registers would be compliant with the the proposals Henry Brandts-Giesen  henry.giesen@ Privacy Principles. would have kensingtonswan.com is a partner and Arguments that public registers infringe stopped such Nick Beresford  nick.beresford@ rights to privacy and data protection are wrongdoing is kensingtonswan.com is an associate at particularly persuasive in New Zealand, another matter) Kensington Swan in Auckland.

29 FRANCHISING · UPDATE December 2018 · LAWTALK 924

UPDATE FRANCHISING What is good faith in franchising? Part 1

BY DEIRDRE WATSON

In my article in LawTalk 912 (Novem- instances I see regularly relates ber 2017, page 30), I explored the topic to termination of a franchise of whether or not there is an implied agreement by a franchisor where obligation of good faith in a franchise there is a contractual right of ter- agreement. In this article, part one of a mination but an ulterior motive two-part series, I delve in more detail at play. The franchisor may have into what is meant by good faith, technical grounds of termination, specifically in the franchise context. for instance, for non-payment of fees, but the amount of outstanding fees is low, and the real reason the There is little New Zealand law franchisor wants to terminate is that on the topic of good faith in fran- they have a prospective franchisee chising. I put that down to a couple sitting in the wings interested in of factors. One is the lack of financial that territory. resource on the part of franchisees A second instance, becoming to pursue claims or grievances increasingly more common as fran- concerning instances of bad faith. chises mature and need to adjust to The second is that, in my experi- changing market conditions, relates ence, the most serious instances of to proposed alterations to significant heavy handedness or bad faith on parts of the franchise model and the part of a franchisor tend to arise the franchise agreement. Franchise in lower barrier to entry franchise agreements will generally require systems. In these types of systems, franchisees to sign, upon renewal, an opportunity to hike up fees and there will already be a significant the “then” terms of the franchisor’s make other changes of no perceived power imbalance between the par- franchise agreement. When the value to franchisees. ties. Franchisees will often be uned- franchise model undergoes con- It might be argued in this situa- ucated, unsophisticated in business, siderable change, franchisees have tion that there is an obligation on and largely lack the wherewithal or little contractual ability to negotiate the franchisor to act in good faith by knowledge to seek legal advice at the terms of the “then” franchise at least considering the legitimate any point in the relationship, much agreement upon renewal. interests of the franchisees before less when there is trouble brewing. In this situation, there are some imposing broad ranging changes. They just won’t have an awareness competing tensions at play. On the Good franchisors seem to be aware that something is grossly commer- one hand, the franchisor needs to that this is at least best practice, and cially unfair, much less be aware of be able to change the model and the are doing this, if for no other reason the fact they should be seeking legal agreement to adjust to market con- than they don’t want to deal with advice about it. ditions. On the other, the franchisee the expensive fallout of a mutiny For whatever the reason though, needs the certainty of knowing that when all of the franchisees group the net effect is that there are few those changes won’t substantially together and challenge the impo- cases that have dealt with the ques- alter the original bargain. Where sition of a new agreement. In good tion of good faith in franchising. things have the potential to go franchise systems that I have seen, That doesn’t mean instances of wrong, is where a perfectly legiti- franchisors are already acting as if bad faith are not happening. mate sounding commercial need to they are subject to an obligation One of the most common change the model then morphs into of good faith by consulting with

30 LAWTALK 924 · December 2018 UPDATE · FRANCHISING

and the quest for the Holy Grail: Good faith or good intentions?” (2009) 33 MULR 542, at 557), to the idea that good faith is “a general organising principle” (Bhasin v Hrynew 2014 SCC 71; [2014] 3 SCR 494 at [33]) that parties generally must perform their contractual duties honestly and reasonably and not capriciously or arbitrarily, and to the oblique “know it when you see it” test (“Franchising and the quest for the Holy Grail…", n5, at 574), otherwise referred to as being, “in the absence of clear definition, in the eye of the beholder” (same page). Nestled amongst these tests is one with a ring of commercial practicality to it, namely, that good faith simply involves having appropriate regard to the legitimate interests of the contracting party (see Heli Holdings Ltd v Helicopter Line Ltd [2016] NZHC 976, [113] to [114]), but without subordinating one party’s interests to the other. It is useful to draw on some of the Australian case law which has dealt with the question of whether bad faith was present in franchising. It is readily apparent from even a cursory review of some of the cases in that jurisdiction that bad faith remains a hot topic, notwithstanding that, since 2015, all parties to franchise and taking into account the legitimate interests of agreements became subject to an franchisees. industry-wide Franchising Code of But the law as it stands in New Zealand at the moment Conduct requirement that imposes says that there is no implied obligation of good faith in a an express obligation of good faith franchise agreement (other than, of course the implied On the one hand, in all franchise agreements. obligation of good faith which arises in the exercise of a the franchisor contractual discretion). Indeed, this question is generally needs to be able Burger battles regarded as having been left open by the Privy Council to change the Prior to the imposition of that in Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] model and the requirement, the law was already 1 NZLR 289, the last notable decision in New Zealand agreement to moving in the direction of imposing to consider this issue. adjust to market an implied obligation of good faith conditions. On in franchise agreements. What is bad faith? the other, the For example, in Far Horizons Pty Setting to one side the question of whether there is franchisee needs Ltd v McDonald’s Australia Ltd [2000] or should be an implied obligation of good faith in a the certainty VSR 310, it was found that there had franchise agreement, what is “bad faith” and how can of knowing been no breach of an obligation of one identify it when it comes along? that those good faith by the franchisor. Far In my earlier article, I referred to the usual attempts at changes won’t Horizons operated two franchise definition of good faith that are bandied about, ranging substantially McDonald’s stores. McDonald’s from the somewhat self-evident notion that it is the alter the original opened up two new stores in the “antithesis of bad faith” (Terry and Di Lernia, “Franchising bargain. same geographical area, as it was

31 FRANCHISING · UPDATE December 2018 · LAWTALK 924

contractually entitled to do. The court found that the deci- competition between the two legit- sion to expand into the area on the part of McDonald’s imate interests. was not based on disadvantaging Far Horizons but rather Under the Australian Code, so long that it was merely part of McDonald’s’ usual business as the franchisor has acted honestly, strategy. The outcome might have been commercially not arbitrarily and in cooperation unfair and unreasonable from Far Horizons’ point of with the franchisee to achieve the view, but that did not translate to bad faith. purposes of the franchise agree- In a second case, Burger King Corp v Hungry Jacks ment, including considering the Pty Ltd [2001] 1 NSWCA 187, it was alleged that Hungry legitimate commercial interests of Jacks was in breach of a development agreement which the franchisee, then the franchisor required it to open a certain number of restaurants will not be required to subordinate itself and through franchisees throughout Australia. its own legitimate interests to the Hungry Jacks argued that the reason it was in breach interests of the franchisee. of that clause was because Burger King, in bad faith, The Australian Franchising Code consistently refused approval of its expansion plans probably pushes the definition of and refused to approve franchisees. good faith as far as it can be pushed, The court found Burger King to be in breach of an without bringing the business of the implied obligation to act in good faith in turning down franchisor to a grinding halt, which franchisees, defining good faith as: would almost certainly happen if • cooperation in achieving the objects of the contract; the franchisor was required to sub- • honesty; and ordinate its own legitimate interests • reasonable regard to the other parties’ legitimate to the interests of the franchisee. interests. In part two of this article next The court said: “While parties to a contract are allowed issue I will discuss a recent New to pursue their own legitimate commercial interests Zealand decision in which fran- within the framework of the contract, to do so for a chisees who disagreed with oper- purpose extraneous to the contract would be a breach ational aspects of the franchise of good faith.” were unable to get any traction in the High Court, with disastrous The Australian Franchising consequences for them. The case Code of Conduct highlights that mere unreasona- The Australian Franchising Code of Conduct gives some ble behaviour by a franchisor or guidance around what will amount to a lack of good behaviour that doesn’t have any faith. In section 6(3), it provides: element of dishonesty, ulterior “Without limiting the matters to which a court may purpose or arbitrary aspect to it have regard for the purpose of determining whether will not meet the threshold of bad a party to a franchise agreement has contravened faith. Just because an action taken subclause (1), the court may have regard to: by a franchisor looks unreasonable (a) whether the party acted honestly and not from the point of view of the fran- arbitrarily; and Under the Australian chisee, doesn’t mean there is a lack (b) whether the party cooperated to achieve the Code, so long as of good faith. Actions which are purposes of the agreement.” the franchisor has taken in advance of a legitimate In section 6(6), the Franchising Code of Conduct acted honestly, not business interests are likewise, provides that: arbitrarily and in not actions which demonstrate “To avoid doubt, the obligation to act in good faith cooperation with the bad faith. ▪ does not prevent a party to a franchise agreement, franchisee to achieve or a person who proposes to become such a party, the purposes Deirdre Watson  deirdre.a. from acting in his, her or its legitimate commercial of the franchise [email protected] is a barris- interests.” agreement... then ter specialising in franchising The drafters of the Australian Code were therefore well the franchisor will disputes. She regularly presents alive to the tension between the legitimate commercial not be required to and lectures on franchise issues, interests of both franchisor and franchisee and the can subordinate its own appears and acts regularly as of worms which would potentially be opened if the legitimate interests counsel in franchising disputes answer to whether or not there was bad faith in any to the interests of and is Vice Chair of the Franchise given situation simply boiled down to an unwinnable the franchisee. Association of New Zealand.

32 LAWTALK 924 · December 2018 UPDATE · HUMAN RIGHTS

UPDATE HUMAN RIGHTS NZ must adapt to evolving terror threat, study finds

BY LYNDA HAGEN

he says. “In an age where we have become increasingly New Zealand can’t be complacent about potential liberal on what can be said, it is good that we are also future terrorism threats: terrorism is constantly evolving, ensuring that this does not extend to amplifying prop- and we need to be prepared for the next wave, whatever aganda for terrorism.” form it comes in. Since the end of the 19th Century, New Zealand has That’s the view of Professor Alexander Gillespie of reflected international trends in responding to terrorism, the University of Waikato, who has co-written a Law Professor Gillespie says. We have not had terrorism in Foundation-funded study of New Zealand’s responses the form experienced by other countries, but we have to the War on Terror, with Associate Professor Claire come close. Breen, also of Waikato. “Periods where we have experienced what might today He says New Zealand is relatively well-prepared for be considered terrorism, or close to it, occurred in times current terror threats, with a strong set of laws, effective of civil dissent. Examples included labour disputes in institutions, and good safeguards to prevent abuse of the 1913, the 1951 waterfront strike, or issues like the 1981 intrusive State power necessary to combat terrorism. Springbok tour and bombings in 1984 and 1985. Looking But, he says, we need to remain vigilant, and constantly further back, dissent, conflict and violence collided in ready to adapt. the 19th Century land wars. “Terrorism, as caused by groups like Islamic State, is “In all instances, law and policy evolved, sometimes just one current threat. This wave will pass, but others positively, sometimes negatively. Today, we are back will take its place, and the lines between terror groups, on a more positive path.” hate groups of all flavours and other problems like mass Law and policy has evolved con- killers will probably change too. sistently, but often only as part of “We need to be ready for the next wave, in whatever a much larger social response. This form it comes, and not be stuck in thinking that terrorism included everything from foreign comes in only one type that we have beaten. To keep policy alliances to clandestine ser- society safe, and with legal and political integrity, we vice and human rights including cannot be complacent,” he says. freedoms of speech, assembly and New Zealand now understands and accepts principles association. like freedom of speech and freedom to protest much The research has found that New better than in the past. Crimes like sedition (speech that Zealand is much more tolerant, lib- incites rebellion) no longer exist. eral and balanced in its fight against “We have evolved some fairly strong anti-terror laws, terrorism than in the past. Although but these have many more checks and balances in them there will be challenges in future, than in the past,” Professor Gillespie says. “Organisations In all the tools for dealing with them are like the SIS, the GCSB and the Police operate in the light, instances, law better. with safeguards to prevent abuse. We need to be vigilant and policy The research is due to be pub- in all these areas – political questions will always be evolved, lished in 2019 in a book provisionally asked, but the trend is positive.” sometimes titled Law and Power in Times of positively, Stress in New Zealand. ▪ New Zealand not immune sometimes Freedom of speech and censorship were examples of negatively. Lynda Hagen  lynda@ law adapting well to current realities. Today, we lawfoundation.org.nz is “It’s under censorship laws that some of the most are back on a Executive Director of the important convictions for would-be Jihadis have been more positive New Zealand Law Foundation made, for their use and propagation of ISIS violence,” path  www.lawfoundation.org.nz

33 TRUSTS · UPDATE December 2018 · LAWTALK 924

UPDATE TRUSTS Damned if you do, damned if you don’t Trustees, costs and litigation

BY GEORGIA ANGUS

appointed Steven as executor and of $36,869 he had spent on his The Court of Appeal’s recent divided the assets as follows: father’s care. Joan defended the decision in Pratley v Courteney • All financial assets held overseas claim on the basis that she did not [2018] NZCA 436 concerns the costs were left to Stuart. consider the additional care was incurred by a trustee in defending • Personal chattels were to be necessary. Once Joan died, Stuart a claim against trust assets. The divided between Stuart, Steven, continued the estate’s defence of issue for the court to determine was and Steven’s wife and daughter. the claim. whether the trustee was entitled to • The residual estate was left to The claim was advanced on two an indemnity from the trust fund. Steven. alternative bases. First, that Steven’s The case provides some helpful In 2009, Ron and Joan visited Stuart wife had retrospectively author- guidance for trustees involved in lit- in Germany. Ron was frail at the ised these expenses acting under igation and highlights the potential time and experienced periods of an enduring power of attorney. risks for trustees in both defending delirium. In March 2010, Ron was Second, in restitution, on the basis and not defending a claim. admitted to hospital in a delirious that Steven paid the expenses as a state. Around that time, Steven “necessitous intervener” providing The facts became very concerned about Ron with the “necessities of life”. The case involved the Courteney his mother’s state of mind and After Joan’s death, Steven also family, namely William Ronald behaviour, particularly how she brought a High Court claim against Courteney (Ron) and his wife, Joan was treating Ron. Steven was also Joan’s estate under the Family Courteney, along with their two concerned about the treatment Ron Protection Act 1955, on the basis adult sons, Steven and Stuart. was receiving at the hospital and that he was not provided for in her Steven had a close relationship arranged private care for him. will. Steven’s daughter, being Joan’s with his parents. Prior to 1997, Ron Joan viewed Steven’s attempts only granddaughter, joined the pro- and Joan lived in England, which is to assist his father adversely. She ceedings as a second plaintiff. where Steven and Stuart grew up. considered the additional care to Steven emigrated to New Zealand be expensive and unnecessary and Appointment of in 1995 with his wife and daughter. that Steven was deliberately abusive Mr Pratley About two years later, Ron and Joan towards her. On 8 June 2011, Joan In the course of the proceedings, followed Steven to New Zealand made a new will, which made no Steven had difficulty obtaining ade- and, with his assistance, purchased provision for Steven nor his family. quate disclosure from Stuart about the the property neighbouring his own. Stuart was appointed as the execu- overseas assets of Joan’s estate. This In contrast, Stuart did not have a tor under that will and, in the event led to an application to remove Stuart good relationship with his parents. Ron predeceased Joan, the whole of as executor and trustee and replace He lived in Germany with his part- her estate was left to Stuart. him with an independent solicitor, ner from 1988 to 2010 and had little Ron died on 17 July 2011. Joan died Lance Pratley. On 20 October 2015, contact with them. less than a year later, on 21 May 2012. Clifford J ordered that Mr Pratley In 2002, Ron and Joan made replace Stuart as executor and trustee mirror wills. Under those wills, each Claims brought by Steven on the express basis that Mr Pratley’s person appointed the other as exec- Following his father’s death, Steven costs would be payable by the estate. utor and left that person the whole filed a claim in the District Court. When Mr Pratley accepted the of the estate. The will of the survivor That claim was for reimbursement appointment, he was not aware that

34 a two-day District Court hearing had been set down to that Mr Pratley acted out of an abundance of caution determine Steven’s reimbursement claim. The hearing and with the best motives. However, she concluded was due to commence three weeks after Mr Pratley that his defence was not necessary. was appointed. It was not until 21 October 2015 that Cull J gave several reasons for this finding. First, she Mr Pratley found out about the hearing and he only observed that Stuart, the former trustee and executor, obtained the relevant files from the solicitors acting for acted in a conflict of interest and breached his duty to the estate on 30 October 2015. By that time, it was one act even-handedly. Her Honour found clear evidence of working week before the trial. acrimony between the brothers and concluded that the Mr Pratley brought an application to adjourn the District Court litigation was a “hostile dispute” between hearing but this was declined. The case proceeded and, claimants. Cull J noted that Stuart had already provided ultimately, Steven was successful in establishing his his submissions and elected to step away from the liti- claim in restitution. gation. She considered it was open to Mr Pratley to have Steven was also successful in his Family Protection the claim decided on the strength of the submissions Act claim, which proceeded by way of formal proof and evidence that had already been filed by the previous hearing in May 2017. Cull J awarded Steven all of the trustee without being involved. estate assets in New Zealand. Her Honour then con- Cull J also considered the litiga- sidered the liabilities of the estate, including the costs tion was uneconomical given the incurred in defending Steven’s District Court claim. Cull dispute was over $36,000, which J’s provisional view was that these costs should not be Pratley v was less than Mr Pratley’s costs. paid out of the estate assets awarded to Steven. The judge Courteney The judge provided that the trustee’s invited the parties to file submissions if they disagreed. [2018] NZCA 436 obligation to protect the assets of Mr Pratley opposed Cull J’s proposed directions. This concerns the the trust had to be measured against resulted in a hearing to determine whether Mr Pratley costs incurred the erosion of trust property by was entitled to be indemnified from the New Zealand by a trustee in litigation costs. assets of the estate in respect of the costs and expenses defending a claim Her Honour noted that Mr Pratley he incurred defending Steven’s District Court claim. against trust should have made a Beddoe appli- assets. The issue cation in the High Court to seek High Court decision for the court directions as to whether he should Cull J determined that Mr Pratley was not entitled to to determine continue the defence of Steven’s an indemnity for his costs. was whether claim. She considered this could Her Honour considered that the issue turned on the trustee was have been accommodated and whether it was “necessary” for him to defend the claim. entitled to an resolved in the week before the The judge accepted that Mr Pratley had make a judge- indemnity from District Court hearing. ment call in difficult circumstances. She also accepted the trust fund. Mr Pratley appealed the decision.

35 TRUSTS · UPDATE December 2018 · LAWTALK 924

Court of Appeal decision costs that would be incurred. The court Trustees’ costs generally noted that “trustees are not entitled to In considering trustees’ litigation costs, the court commented that: immunise themselves against possible “[18] An executor and trustee has a duty to protect estate assets claims irrespective of the difficulty of for the benefit of the beneficiaries. This duty extends to -rep the issue or the amount at stake” ([24]). resenting the estate in claims made against it by third parties The Court of Appeal determined that where there are reasonable grounds of defence. The trustee Steven’s claim was not straightforward must act reasonably, exercising due skill and care. In cases of legally and the outcome was not a for- doubt, the trustee may take legal advice or seek directions from gone conclusion. Although Steven was the Court. So long as the trustee acts honestly and reasonably, ultimately successful, Mr Pratley acted he or she is normally entitled to an indemnity for all expenses reasonably in continuing the defence of reasonably incurred in the execution of the trust.” the claim in accordance with the legal From this starting point, the court noted the three categories of advice he received. trust disputes as summarised by Lightman J in Alsop Wilkinson (a Finally, the court looked at the High firm) v Neary[1996] 1 WLR 1220 (HC), which are frequently referred Court’s view that the defence was uneco- to in relation to trustees’ costs. nomical. The court held that an “executor The first category is a “trust dispute”, for example a dispute and trustee is not entitled to allow a about the proper construction of the trust. The second category claim against the estate to proceed on is a “beneficiaries dispute”, which concerns the propriety of any an undefended basis merely because the action taken or to be taken by the trustees. The third category is amount claimed is modest”. This would a “third party dispute”, being a dispute with a person other than have been in breach of Mr Pratley’s trus- in their capacity as a beneficiary in respect of the trust. tee duties. It was not in dispute that Mr One of the fundamental differences between the second and Pratley’s costs for defending the claim third dispute categories is how trustees’ costs are treated. Disputes were reasonable. in the second category are classified as ordinary hostile litigation. Ultimately, the court allowed the appeal, Costs therefore follow the event and are not paid out of the trust concluding that Mr Pratley acted reasona- estate. In contrast, trustees in third party disputes are generally bly and was entitled to be indemnified for entitled to an indemnity from the trust fund for the fees they his costs out of the estate assets. incur. This is on the basis that trustees are entitled to an indemnity against all costs, expenses and liabilities properly incurred Conclusion in administering the trust. They also have a duty to protect the Trustees can take some comfort from the trust estate for the benefit of the beneficiaries, which includes comments made by the Court of Appeal representing the trust in third party disputes. in this decision. The case provides clear authority that trustees should defend third Mr Pratley’s costs party disputes where there is a reasonable In this case, the court considered that Cull J erred in categorising basis for doing so. In those circumstances, Steven’s District Court claim as a beneficiaries dispute. Steven was trustees can also feel confident that they not claiming against the estate in his capacity as a beneficiary; will be indemnified for their costs from rather, he was claiming to be a creditor of the estate. Accordingly, the trust fund. his claim fell within the third Alsop category, being a third party That said, the difficulty is often identify- dispute. ing whether a dispute, often with a person Mr Pratley, as the sole executor and trustee, was responsible who is a beneficiary of the trust, is properly for dealing with the claim. He had a duty to preserve the estate classified as a beneficiary or third party assets for the benefit of all beneficiaries, whoever they turned dispute. The demarcation between these out to be. The court did not agree that it would have been appro- categories is not always clear. Trustees priate for him to step back from the litigation and let Stuart deal should tread with caution and obtain with it. The court observed that “[h]ad Mr Pratley abrogated his advice on this issue before incurring thou- responsibility to defend the claim, he could have been vulnerable sands of dollars of legal fees defending a to a claim by Stuart for failing in his duty to protect the assets of claim where there may be no ability to the estate” (at [23]). recoup those funds from the trust. ▪ In response to the High Court’s comment that Mr Pratley could have made a Beddoe application, the court considered that Georgia Angus  georgia.angus@ Mr Pratley could not be criticised for not taking this course of morrislegal.co.nz is senior solicitor with action. The court found there may not have been time to obtain Auckland trusts, estates and relationship directions before the trial and Mr Pratley needed to consider the property specialists Morris Legal.

36 LAWTALK 924 · December 2018 ALTERNATIVE DISPUTE RESOLUTION

ALTERNATIVE DISPUTE RESOLUTION Consensus building, Part 4 How to solve the problem

BY PAUL SILLS

As the late Stephen Covey would say “first seek to understand Well done – to get this far you have before seeking to be understood”. Seeking to be understood means identified the opportunity for consensus to give reasons for the positions that you take. Requiring reasons building, got the key stakeholders on board can help gently test the positions that the participants will take and identified the main issues. But now during the negotiations and to separate positions from their actual your first meeting is about to commence, interests (which are usually, at least initially, not well articulated). and you are concerned about how you are As with any good mediation or negotiation, the participants going to hold all of this together. must also separate the discussions that deal with option generation Adopting a Consensus Building Approach and ideas from that part of the process where they take options/ (CBA) for your problem sounded great in packages to the various interest groups and seek commitment to theory – getting all the parties around the an agreement. Everybody should participate in option generation table to work through the issues in a series – even if they are putting forward options that may not be in their of constructive open and transparent meet- best interest but may be of benefit to other stakeholders. Once ings. But how do you ensure that actually debated, the options can then be tested to see whether they can happens? How do you prevent individual be combined into packages that may form the basis of consensus. agendas and old grievances from flaring up The facilitator asking open-ended questions such as “What if…”, again and hijacking your process? and “How would it be if…” is a useful way to test the options in The answer is to go back to the fun- a non-judgemental way. damentals of interest-based facilitation. Problem-solving by consensus is an inter- The role of experts est-based exercise. It is not the place for a As discussed in an earlier article (LawTalk 923, November 2018), competitive win/lose style of negotiation. there are benefits in forming sub-committees to deal with specific Some of your stakeholders may start that parts of the process. There are also advantages in the whole group way, but they need to be guided away from engaging experts who can help everyone to be better informed on that style of discussion and negotiation. any complex or specialised issues. These are bipartisan experts The key is to encourage the participants engaged to answer specific questions and advise the whole group in the CBA process to build a problem-solv- on specialist topics. The use of neutral expert advisers also helps ing mindset – both individually and keep the deliberations non-judgemental. Everyone is working off collectively. the same information and nobody can hide behind experts that Individually, the participants need to be have been appointed to protect certain interests. encouraged by the facilitator to engage in Transparency is essential. One way to ensure transparency the process in a non-judgemental fashion. is to issue written summaries of all meetings. The participants Don’t mistake this for the participants should be given the opportunity to comment on these written simply being nice to each other. There will summaries before they are finalised. In addition, the facilitator be issues of substance that invoke strong should draft a single document that records the progress of the disagreement. Deliberation and debate group towards consensus. Having a single text avoids multiple need to be had about these points. But the copies of the same document being in circulation. It also provides debate can be held in a constructive way transparency and the participants can use it to easily track progress that does not judge others or focus on their towards consensus. The facilitator should update the single text and motives. It is a classic application of the keep it in circulation after every group meeting or subcommittee/ need to both hear and be heard. stakeholder meeting.

37 ALTERNATIVE DISPUTE RESOLUTION December 2018 · LAWTALK 924

One of the benefits of CBA is its flexibility. Rather than living and dying by hard and fast rules regarding, for example, the conduct of meetings, the group can elect to modify both their agenda/issues and the ground rules as the process develops. For example, if a new issue arises during brainstorming, or it becomes clear that an important interest group has been left out of the discussions, then expanding the issues or the group can be easily accommodated. In a similar fashion, if the ground rules that the group has established and agreed become unmanageable or no longer suit the processes, they too can be modified to suit the interest of a consensus-based outcome. A CBA engagement will benefit from a firm deadline to conclude the negotiations and, if possible, reach a consensus-based agreement. Interim deadlines may also be needed throughout the process – for example, to bring an end to the brainstorming phase. There are no hard and fast rules regarding the duration of any particular phase or the overall process. Occasionally an external deadline might drive the conclusion of the process. With internal milestones, it will probably be obvious to the facilitator when it is time to move on. For example, when the meeting notes following brainstorming sessions do not add anything new to the development of the single text, that probably indicates it is time to move on. negotiation. Rather, we are talking about genuine trades across Encouragement issues – the trades being used to generate mutual gains for the The facilitator needs to work on getting the benefit of all. most out of the group so that collectively Finally, if you want to get the most out of your CBA process they can find solutions that are better for then seek out the assistance of a skilled facilitator. Somebody all members of the group. For seasoned needs to manage the discussion between the parties in a way negotiators used to win/lose negotiation that meets the aims and objectives set out in this article. The tactics, this can be a bitter pill to swallow best way to do that is with an independent facilitator who can and they may be sceptical of the process. manage the discussion, ensure all participants are treated fairly By focusing on the mutual gains to be had and keep the group to its agenda and timetable. The facilitator can from the CBA process the facilitator can also be responsible for ensuring that a written record of all the slowly break down that scepticism. The meetings is provided and that the document tracking progress participants need to be encouraged to is kept up-to-date. ▪ see what is possible, where mutual gains can be found during the negotiation and Paul Sills  [email protected] is an Auckland barrister the trades that will normally take place. and mediator. He specialises in commercial and civil litigation The process does not talk about compro- and is an AMINZ Mediation Panel member. The first three parts of mises as is often seen in a mediation or this series on CBA have appeared in LawTalk 921, 922 and 923.

38 LAWTALK 924 · December 2018 CREATING A JUST CULTURE

CREATING A JUST CULTURE How can the legal profession retain talented women?

BY ANN BRENNAN, STEPH DYHRBERG, FIONNGHUALA CUNCANNON, MARIA POZZA AND HELEN MACKAY

At the recent Women in Law Summit in Auckland in September, Ann Brennan chaired a panel with Steph Dyhrberg, Fionnghuala Cuncannon, Dr Maria Pozza and Helen Mackay, speaking on the topic ‘Why is there is an exodus of women from the legal profession and how can we retain our female talent?’

This article shares the exploration of the issues and proposed solutions from the chair and each speaker.

Ann Brennan, Chief change. The Charter is a set of commitments aimed at improving Legal Advisor, Ministry the retention and advancement of women lawyers. Charter signa- of Business, Innovation tories are asked to meet these commitments over a two-year period and Employment and report on progress to the Law Society. There are currently 100 signatories covering more than 2,700 lawyers including all but two The numbers clearly show us that more of the large law firms and many smaller ones, in-house teams and women than men are leaving the law or barristers. Signatories commit to lead from the top, make plans, unable to progress. Women are well repre- take action and measure progress. The specific commitments sented at solicitor level but this drops off at include tackling unconscious bias, encouraging flexible working, partner level – two-thirds of law graduates closing the gender pay gap and promoting equitable instructions. are female but only one-third of law firm partners are female. Fionnghuala Cuncannon, We have a retention problem as women Partner, Meredith Connell leave the legal profession at a rate three to four percent higher than men. This variance The numbers indisputably show that the legal profession has begins early with two to three percent significant leaks in its talent pipeline. It’s okay that practising law more women than men admitted but never is not for everyone. From NZ Inc’s perspective some of the leaks entering legal practice. There is also a leaky aren’t a problem; a law degree and experience as a junior lawyer pipeline for females aged 50 years plus. provide an excellent platform for other stimulating and rewarding Why do they leave in their prime and how careers. But large law firms most certainly have a problem retaining can we encourage them to stay? women. Smart, hardworking women are fundamental to their High mobility also appears to apply to success; they are the majority of the solicitors and senior solicitors female in-house lawyers. American data who get the challenging work done under tight timeframes for suggests a motherhood penalty at play as sophisticated and demanding clients. 4% of female in-house lawyers say they had The numbers reverse at more senior levels. That is because life to quit their job to look after dependents. in a large law firm is harder for women. That reflects both internal A third of in-house female lawyers in the and external issues: US say they would leave their in-house position for another career opportunity and Unconscious bias is an issue at 40% said it was difficult to find a position every level within firms after a leave of absence, increasing to 60% Women are disproportionately expected to undertake the “detailed” if the leave of absence was over a year. work and are less likely to be involved to the same degree as their The NZLS Gender Equality Charter is male peers in client facing or strategic work. A difficult research one initiative we can all support to create task, a complicated discovery, etc are typically more likely to be

39 CREATING A JUST CULTURE December 2018 · LAWTALK 924

▴ Ann Brennan, Chief Legal Advisor, ▴ Fionnghuala Cuncannon, Partner, ▴ Steph Dyhrberg, Co-founder, Ministry of Business, Innovation and Meredith Connell Dyhrberg Drayton Employment

tasked to a woman because they are a “safe to progress in large law firms tackle these issues? I suggest: pair of hands”. In this way many smart 1 It is vital to understand the difference between sponsors and young women are punished for their own mentors and ensure you have both. Without sponsors, it is skills because partners are simply default- impossible to progress in a firm. ing to the easiest way of getting work done. 2 Focusing on developing your business case. Being a good lawyer But this makes the transition from “most is a given; it is not the basis on which partnership decisions valued junior” to being a leader of the firm are made. more difficult, with women having fewer 3 Actively seeking out opportunities for client facing work and opportunities to demonstrate they’re also involvement in pitches for new work. Make it clear that you great at the “business of law”. understand your skillset needs to be broader than your technical When seeking to step up, unconscious legal skills and make sure goals to develop these other skills bias bites again: men are generally seen are part of your development discussions. as more “commercial”, that is, more likely None of this is to suggest that the responsibility for change lies to have what it takes to bring in clients/ only with individual women. Law firms will continue to be the fees. The research is clear that women poorer if they don’t confront the structural and cultural issues are generally promoted on demonstrated that inhibit the progress of many of their best and brightest. skills and men on potential, so succession For all of us who care about these issues we must continue to planning and assessments of associate and challenge unconscious bias, call out issues, and actively promote partnership applications are particularly opportunities for women at all levels. impacted. And if all this wasn’t enough, women Steph Dyhrberg, Co-founder, also often get less help from support staff Dyhrberg Drayton and yet face greater pastoral care expectations from both legal and support staff. Outside of work, women still carry a Why are they leaving? disproportionate amount of the mental The legal profession can be a harsh environment, with overwork, load and unpaid responsibilities within bullying, harassment and sexual assault. Many women discover it our homes and communities. Of course, is not what they want to do – they find something else they want this impacts on both desire and capacity to more. Up to 25% of people who experience sexual harassment progress within firms. These wider respon- will leave their job and many will leave the profession. There is sibilities are also part of the unconscious also the inflexibility of legal jobs with children and families. The bias at play when firms are assessing who whole equation means it’s just not worth it. they see as being able to take on partner- We are eating our young: we raise them, educate them, give ship responsibilities. them amazing experiences, celebrate them, and avidly recruit them So how do individual women who want – then either use them as cannon fodder or let them experience

40 LAWTALK 924 · December 2018 CREATING A JUST CULTURE

• Promote an open-door policy and listen – use a “suggestions box”. • Have junior representatives on the board/ELT. • Have a workshop on your own culture – establish your own values and what that looks like in practice. • Have a plan to develop and promote your women employees – establish targets. Dr Maria Pozza, Associate, Govett Quilliam

Let’s just call it a shovel, instead of a spade! Our profession needs to take a good hard look in the mirror – we are far from where ▴ Dr Maria Pozza, Associate, Govett ▴ Helen Mackay, Director, Juno Legal we ought to be in comparison to our over- Quilliam seas counterparts. In fact, we are failing quite shamefully. Why is this the case and why do we let this happen? A question I often ask is why is bad benign neglect. There are often issues with poor supervision and behaviour tolerated by others at the same impatience from senior lawyers as junior lawyers come up to speed. or higher levels in the organisation – why don’t more people with the same amount Unconscious bias of power ‘call it out’? Possibilities include: The group that rates itself most satisfied with the status quo, our fee structure demands that those who doesn’t believe gender affects the law and sees no reason for holding a higher leadership position must significant change, is the group statistically most likely to harass, tolerate inappropriate behaviour from discriminate and bully. We need to break through their compla- others at the same level due to business/ cency – a challenge that requires tools and training. Everyone economic driven needs and requirements. carries unconscious biases – we need to surface them, acknowledge them, challenge them with data, and address them with a plan. How do we keep women I am starting to call this “wilful blindness”. It’s not for women in the profession? to fix the issues that discriminate, but we are raising awareness. Stronger leadership within law firms – leadership has to take a stand and actually Practical tips we can (and should) all take say “this is intolerable, inappropriate, and • Keep talking and writing. unacceptable. We need to look after our • Listen and debate. people better”. • Circulate useful clips and articles. • There needs to be better protection • Initiate courageous conversations, eg, Why is it like this? Why for those people that do call it out or do we keep doing this? whistle-blow; • Call out unacceptable behaviour and ensure you protect • Better representation of women in complainants. higher ranking positions which actually • 360 degree feedback for partners and managers. means accepting the unique difficulties • Watch the unconscious bias and preventing sexual harassment that women face in our profession: webinar. • More diversity using targets where • Independent surveys/engagement tools and action plans to necessary; address issues. • Equitable opportunity; • Blind CV recruitment. • Acknowledgment that this is hap- • Establish values-based criteria for partnership. pening in the profession, accepting • Ensure gender balance and diversity on every panel you speak that this is happening, and then on, including every hiring panel. finding a solution. So far there has • Measure and eliminate pay gaps. been a lot by way of “defensive” and • Promote uptake of parental leave and flexibility – and have “offensive” postures – but we need a a policy on this. Walk the talk as a senior person and make solution-based posture now. flexibility normal. • We need more input from lawyers at

41 CREATING A JUST CULTURE December 2018 · LAWTALK 924

my level who can offer on-the-ground if they increase diversity in the leadership of the firm, in who perspectives – perhaps once upon a has the key relationship with Microsoft and who does the legal time partnership was the be all and work with Microsoft with their overall top scoring firm getting end all, however, there are probably an extra 1% of fees and public recognition. The metrics are both more women now who are not so sure absolute, eg, 25% diverse partners but also about progress, so each partnership is for them given their 1% increment gets rewarded. In 10 years, the percentage of hours experiences. worked on Microsoft matters by diverse lawyers went from 33% to 48%. In that time their litigation track record has strengthened Helen Mackay, and key legal success targets have been met. Microsoft do not Director, Juno Legal credit diversity efforts solely for this progress, but they believe it is a substantial part of the success. I’d love to see diversity targets Women say they leave the law for several become an integral part of RFPs and panel arrangements in New reasons. Some because the profession is Zealand – with diversity being viewed in its widest sense. inflexible, some because an unreasonable Bring back our legal talent: We need to level of sacrifice is required, some because provide better avenues, training and sup- they make that sacrifice and it doesn’t get port for people to return to the profession them the same rewards it gets their male if they have had a lengthy break. There is colleagues and others because they get a huge pool of untapped talent out there burnt out or treated poorly. and in this tight legal market these people should be supported and encouraged to Suggested solutions return to the law. Other professions do Flip the focus: Steve Jobs’ mantra was this well and the legal profession needs to always put the customer first. Richard to catch up. Branson’s is to focus on his employees first. 360 degree reference checking: Every law firm and most in-house teams Instead of reference checking being the I see emphasise that they put their client privilege of the prospective employer only, first. I suggest we flip this to put our people if employees could check the references first always and our clients a close second. of their prospective manager from people If we look after the people who look after who previously worked for them, bullying our clients then both will be happy. and harassment would be more readily Stop equating flexibility with child- identified and avoided. Firms would be care and the role of mothers: Flexibility less tolerant of bad behaviour if it caused is about autonomy and freedom, not them to miss out on recruiting key talent. parenting. There are lots of reasons to Enough: I’m the daughter of a small- work flexibly – of the three non-parent Women say they town lawyer so I grew up seeing law as a lawyers in the Juno team, one has his own leave the law for vocation and service. I think the profession start-up business, one is involved in the several reasons. has lost its way with its focus on profit. peace movement and the other has come Some because A large firm partner I had lunch with back from a demanding global role and is the profession recently went so far as to say “law has relishing working in a more balanced way. is inflexible, lost its humanity” as he was telling me In-house lawyers need to use their some because about the 10 hours per day another large buying power wisely: Rather than an unreasonable firm requires their junior lawyers to record. expecting law firms to change by choice, level of sacrifice Jim Farmer QC wrote an article this year the buyers of legal services need to is required, some about working at a large firm in the 1970s create change. Microsoft has had a Law because they make when there were no timesheets and no Firm Diversity programme for more than that sacrifice and budgets. I think we need to return to that 10 years. The first phase saw firms get a it doesn’t get them model. Juno has no financial targets and bonus equal to 2% of fees if they reached a the same rewards our team are paid for every hour they work. quantifiable diversity goal; either becoming it gets their male And we frequently say no to work if to say more diverse as a firm overall or if more colleagues and yes would overload the team’s capacity. We diverse lawyers were doing the Microsoft others because trust that if we build a great team, really work. Three years ago, they shifted their they get burnt out look after our team and really look after focus to leadership so firms get a bonus or treated poorly. our clients, there will be enough. ▪

42 CREATING A JUST CULTURE Questioning the Questions

BY VALERIE BLAND

An action point for me from having recently drafted Extra Law’s I have questions about job application Gender Equality and Diversity strategy, is to look at recruitment health questions. processes from a fresh and inclusive perspective. The following But first, let me clarify that even though question in job applications immediately jarred with me: I recently attended my first employment “Have you an injury or medical condition caused by gradual law conference, I do not have delusions process, disease or infection, such as repetitive strain injury, of grandeur about my employment law which the tasks of this job may aggravate or contribute to?” expertise – I am not a specialist employ- The above question is regularly a ‘required question’ in the initial ment lawyer. However, I am a new online application process for job applicants. It is mentioned in job employer of lawyers. I am also drafting application articles and commentary as being the health question employment policies and strategies for my wording that “the Human Rights Commission recommends”. It new law firm at a time described – by one is included in online job applications for roles in government of the senior practitioners speaking at the departments who are statutorily required to operate a personnel Employment Law Conference 2018 – as the policy that complies with the principle of being a good employer. most exciting (and tough) time in his career However, I think we, as employers of lawyers, should take a fresh to be involved in employment law matters. look at how it is used to recruit employees. And I am concerned about how we can attract and retain lawyers as employees A red flag for our law firms and organisations in the The timing of asking the health question – at the first stage of potentially even tougher future. the application process – is immediately a red flag. I anticipate

43 CREATING A JUST CULTURE

that many people would expect that when a prospective employer has a metaphorical pile of online applications, it would be an easy and automatic screening process to reject applications where “yes” was answered to health questions. This likelihood is recognised in the UK, where the Equality Act 2010 brought in new provisions which prevent employers asking job applicants questions about health or disability during early stages of the recruitment process: “In the past, some employers asked questions about health or disability in the initial stages of recruitment. Disabled applicants were being rejected before interview and before being given the opportunity to have their suitability, skills and experience for the work considered by the employer. This resulted in unfair discrimination. (Equality Act 2010: What do I need to know? A quick start guide to the ban on questions about health and disability during recruitment, published by the UK Government Equalities Office.) In New Zealand, the Human Rights Act 1993 does not specifically refer to discrimination relating to just application health questions (like condition throughout their career the timing of job application health the example question above), asked to date, such an applicant may questions (although maybe it should at the first stage of the application subjectively and reasonably answer follow the UK example?). Under the process, useful to assess whether “no” to the job application health Act, lawful discrimination can only either of these situations applies? questions. However, if employers occur where: That is, for example, do employers waited instead to ask relevant and a the position is such that the understand what getting a “no” targeted health questions at a stage potential employee could per- answer to one of these health where the potential employee and form the duties of the position questions in an application may employer know more about (1) each satisfactorily only with the aid mean? Most health questions other, (2) the role requirements, (3) of special services or facilities invite the job applicant to make an the health conditions that could and it is not reasonable to expect assessment about the existence of impact on the role, and (4) the the employer to provide those a condition which could affect their reasonableness or otherwise of services or facilities; or performance in the role, or which providing special services and b the environment in which the the role might aggravate. facilities, then more useful answers duties of the position are to be In making the decision to apply are likely to eventuate leading to a performed, or the nature of those for the advertised legal role, the better assessment by the employer. duties, or of some of them, is such applicant has assessed that their that the potential employee could CV plausibly evidences their Role requirements perform those duties only with a performance in roles which they A key starting point for an employ- risk of harm to that person or to consider are credibly similar to the er’s assessment of compliance with others, and it is not reasonable to advertised role, based on the infor- the Act when seeking employees for take that risk. mation supplied in the job advert. roles as lawyers, should be to know Are the answers to the job If they have had that same health the requirements of the lawyer’s role

44 LAWTALK 924 · December 2018 CREATING A JUST CULTURE

and be confident that they are, in fact, necessary (ie, not experiencing mental health issues assume things can only be done in the way they have and one of the five stated commit- always been done). ments is to: Lawyer’s roles have similar physical functional “Not make assumptions that requirements: office/desk/meeting time; communi- a person with a mental health cation skills; with the brain as biggest ‘muscle’ being condition will be more vulner- taxed. To apply for a first job as a practising lawyer, an able to workplace stress or take applicant needs to have completed a law degree and more time off than any other requisite training – and completing these steps whilst employee or job applicant.” managing a physical health disability should arguably An applicant for a lawyer role make an applicant an inspirational hire, rather than an may well expect stress in that automatically screened “no thanks”. type of role. However, it should be Statistics used by the Human Rights Commission reasonable for that expectation to estimate that up to 11% of the working population have be about healthy creative stress a disability. I would consider office-dominated jobs (like which is actively managed by the a lawyer’s role) well positioned to utilise the skills of employer, with appropriate sup- this group of the population. There are technological port, in accordance with health and support aids for physical constraints such as speech safety processes. It is, hopefully, difficulties, vision impairment, repetitive strain injuries, becoming more difficult for an etc that are increasingly more readily available. If an employer in the future to demand existing lawyer in a law firm had an accident and was, that its employees accept, and be say, confined to a wheelchair temporarily, it is now more unaffected by, unhealthy stress reasonable and realistic to think that a back-to-work caused or made worse by poor plan to accommodate their physical needs could be management practises, or by inci- considered and implemented. dents of bullying and harassment One employment specialist I spoke to after a health that are not appropriately dealt and safety seminar agreed that physical disabilities with. In the legal industry, we do should not be a barrier to a successful career as a lawyer. not have to also worry about such This specialist suggested, however, that employers of things as chainsaws, heavy machin- lawyers are justified in asking health questions at the ery or working from heights, so we first stage of the application process in order to uncover surely have ample capacity to give mental health issues such as depression. It was his view appropriate consideration to what that an applicant may mislead the employer if they is likely to be the biggest risk to the don’t answer “yes” to these online job application health health and safety of our staff. questions if they suffer or have suffered from a mental Anecdotally, law firms and illness. organisations are expressing con- The Human Rights Commission notes in its guidance cern about securing the best talent [“Getting a job: An A-Z for employers and employees”] to be the lawyers, legal advisers, that job applicants who have experienced mental illness partners or legal managers of the often do not disclose that fact because they fear discrim- future. I suggest that, amongst other ination. Other job applicants may also answer “no” to things, employers should consider the health questions in online job applications because, what benefit is gained by asking as above, they subjectively and reasonably assess that It is, hopefully, these health questions at the first they have managed their mental illness at previous times becoming stage of job applications as against in their legal career, whilst performing satisfactorily in more difficult the message that applicants may the similar roles noted in their CVs. for an inadvertently be receiving about employer in your firm or organisation. Rationale the future to So, I’m no expert in employment The rationale given to justify an employer of lawyers demand that law, but I am going to put this enquiring into a potential employee’s mental health its employees question, about job application conditions, like depression, is frequently based on health accept, and health questions, to those who are and safety issues involving the potential employee’s be unaffected recruiting modern lawyers: “maybe ability to cope with the inherently stressful nature of by, unhealthy you’re doing it wrong?” ▪ lawyer roles. It was recently reported in New Zealand stress caused that nine large UK law firms have signed up to a mental or made Valerie Bland  Valerie.bland@ health charter – and (we may hope) New Zealand may worse by poor extralaw.co.nz is director of consider similar initiatives. This UK charter for employers management alternative legal services provider aims to counter stigma and discrimination for people practises Extra Law Ltd.

45 LAWYERS COMPLAINTS SERVICE December 2018 · LAWTALK 924

LAWYERS COMPLAINTS SERVICE

Complaints Resolution Summaries

Lawyer loses any costs orders that it thinks fit. Further, be relevant when the question of costs was section 249(3) of the Act explicitly states being considered. bid to have that the Tribunal may order a practitioner In deciding not to award costs to Ms to pay costs even if it does not find that Lagolago in relation to the proceedings in costs covered person guilty. the Tribunal, the High Court found that Ms Lagolago argued that costs in dis- Ms Lagolago was out of her depth in the BY NZLS REGULATORY ciplinary proceedings are to be decided proceeding she took for her clients in the under the standard regime in the High District Court. Further, the factual narrative The Court of Appeal has declined Court Rules 2016 (Roberts v Professional she put before the Tribunal was confused Wellington lawyer Papali’i Toti Lagolago Committee of the Nursing Council of New and complicated. As such, there were rea- leave to appeal a High Court decision in Zealand [2014] NZCA 141, (2014) 21 PRNZ sons for the Law Society to be concerned. relation to costs. 753) and that therefore Ms Lagolago was The High Court concluded that Ms Lagolago Ms Lagolago had faced charges in the entitled to an award of costs because of contributed to the unfavourable decision New Zealand Lawyers and Conveyancers her successful appeal. in the Tribunal in a material way. Disciplinary Tribunal in relation to her The standards committee, however, argued role in representing clients in litigation that costs in disciplinary proceedings do not Grounds for seeking proceedings which ultimately failed. generally follow the event, as to take that leave to appeal The Tribunal made a finding of negligence approach would ignore the public interest Ms Lagolago sought leave to appeal on against Ms Lagolago in terms of section function of the Law Society when bringing three questions: 241(c) of the Lawyers and Conveyancers Act a disciplinary action against a practitioner. 1 Whether the general approach to costs 2006 and imposed a term of supervision It relied on the English case of Baxendale- in civil litigation was the starting point along with a censure, an order to reduce Walker v Law Society [2007] EWCA Civ 233, for determining costs in a disciplinary her fee, and an order to pay costs. [2008] 1 WLR 426 which, it highlighted, had proceeding in the Tribunal; Ms Lagolago appealed these findings been approved in several decisions in the 2 Whether the principles relating to to the High Court and was generally suc- Tribunal and the High Court. Calderbank letters were applicable in cessful in having the finding and outcomes disciplinary proceedings; and quashed. However, in a judgment dated High Court decision 3 Whether the High Court failed to con- 8 December 2017 (Papali’i Toti Lagolago v The High Court found that the correct sider all relevant factors (or considered Wellington Standards Committee 2 [2017] approach in disciplinary proceedings in irrelevant factors) in making its decision. NZHC 3038), the High Court declined to New Zealand is that costs do not simply In declining leave to appeal, the Court of award Ms Lagolago costs in the Tribunal, follow the event. However, it held further Appeal stated that the decision in Roberts despite her successful appeal. that while the regulatory function being had emphasised the importance of the Ms Lagolago sought leave from the High discharged in the public interest by disci- public function carried out by professional Court to appeal this issue to the Court of plinary proceedings is a relevant factor, it conduct committees. It found that “implicit Appeal and when that was declined, sought is not a determinative one. It considered in that emphasis is the proposition that a leave from the Court of Appeal itself. In its that what was required was “an evaluative strict costs will follow the event rule risks judgment dated 5 October 2018, the Court exercise of the discretion provided by the undermining that function”. of Appeal declined Ms Lagolago leave to [Lawyers and Conveyancers] Act”. The Court of Appeal further referred appeal (Papali’i Toti Lagolago v Wellington Further, the High Court found that to two High Court cases which empha- Standards Committee 2 [2018] NZCA 406). the Calderbank rules, which deal with sised the wide discretion available to the In the High Court, argument centred on increased costs being sought in situations Tribunal in respect of costs, including what the correct approach was towards where a settlement offer has been declined, the discretion to award costs against a the awarding of costs in disciplinary did not apply to the Tribunal’s exercise of practitioner who successfully defends proceedings. its costs discretion, but that any settlement the charges. The starting point is section 249 of the letters or correspondence between a prac- It found no issue with the Tribunal’s or Act, which allows the Tribunal to make titioner and the Law Society would simply High Court’s factual findings in relation to

46 LAWTALK 924 · December 2018 LAWYERS COMPLAINTS SERVICE

Ms Lagolago’s conduct in the District Court Zealand Lawyers and Conveyancers are held in trust for clients will always be litigation and found that Ms Lagolago had Disciplinary Tribunal. treated extremely seriously,” New Zealand “no realistic prospect of convincing either The tribunal had found Mr Ellis guilty of Law Society President Kathryn Beck says. forum that she was entitled to costs”. misconduct. In June 2018 in another matter “This practitioner has let down the legal It then briefly considered the application it found he had acted for a client when profession. Protection of the interests of of the Calderbank rules but concluded that he had a conflict of interest and censured clients is paramount and there is no place they were “a corollary of the standard costs and suspended him from practice for six in our profession for anyone who does not will follow the events approach and so are months. hold that above all else in their work.” of limited assistance in assessing costs on The tribunal has now ordered him struck these facts”. off from 2 November 2018. The striking off Considering the Court of Appeal’s deci- order has been appealed and therefore Acted for clients sion and the findings of the High Court, the under the Lawyers and Conveyancers Act issue of costs in relation to proceedings in 2006 it operates as a suspension. when conflicted the Tribunal appear to be well-established. In the latest proceeding, he was found The relevant legislative framework gives to have persistently failed to comply with Names used in this article are fictitious the Tribunal a wide discretion to award his trust account reporting obligations, to costs, including the award of costs against have adversely dealt with his client’s trust A lawyer who acted for clients when he a practitioner who successfully defends the funds without the client’s knowledge and was conflicted has been censured and fined charges brought against them. to have deducted an unjustified fee from $5,000 by a lawyers standards committee. Further, the case law has clarified that in funds held in trust for his client. Mr Jingle and Ms Mannette instructed New Zealand the standard costs will follow In deciding to strike Mr Ellis off the roll, the lawyer, Peggotty, to act for them on the the events rules will not apply. However, the tribunal found unanimously that he purchase of a residential property. Peggotty that does not mean that practitioners was not a fit and proper person to remain informed Mr Jingle and Ms Mannette that who are successful in defending charges a lawyer. he also acted for the vendor. brought against them in the Tribunal will Including the unjustified fee deduction, Sometime after the property sale was never be awarded costs. The fact that there he now had seven disciplinary findings completed, the local district council is a public interest involved in the disci- against him. These displayed a pattern informed Ms Mannette that the property plinary proceedings is not a determinative of disregard for principles, the rules and required substantial work before a code factor, but simply a relevant one. As such, regulations and past decisions. That prior of compliance certificate could be issued. all factors will need to be considered by disciplinary history demonstrated that Mr The committee considering Ms the Tribunal or appellate Court(s) when Ellis lacked insight into his professional Mannette’s subsequent complaint found deciding whether an award of costs in obligations. that Peggotty had breached Rules 6.1 and favour of a practitioner is justified. The tribunal said it could not have 6.1.1 of the Lawyers and Conveyancers confidence that similar conduct would Act (Lawyers: Conduct and Client Care) be avoided in the future and there was a Rules 2008, and that his conduct in doing Brian Robert risk of reoffending. There was a clear need so amounted to unsatisfactory conduct. for deterrence and protection of the public. Rule 6.1 provides that a lawyer must not Ellis struck off As well as making an order to strike Mr act for more than one client on a matter Ellis off the roll, the tribunal required him where there is a more than negligible risk roll of barristers to honour his agreement to pay $810 to that the lawyer may be unable to discharge his former client and to pay prosecution the obligations owed to one or more of and solicitors costs of $31,600. the clients. “Trust accounting responsibilities are However, pursuant to Rule 6.1.1, a Auckland lawyer Brian Robert Ellis has at the heart of the relationship between lawyer may act for more than one client been struck off the roll of barristers and lawyers and their clients. Any adverse in respect of the same transaction if the solicitors of the High Court by the New dealings by lawyers with funds which lawyer obtains the prior informed consent

47 PRACTICE December 2018 · LAWTALK 924

PRACTICE of all parties. The committee noted that, at the time of the property sale, Mr Jingle and Ms Mannette were living in the property and were aware that What is Agile the property did not have a code compliance certificate. “[Peggotty] nevertheless had a and should I care? professional duty to ensure that Mr [Jingle] and Ms [Mannette] were properly informed of the risks BY DAMIAN associated with the purchase of this FUNNELL particular property,” the committee said. “Whilst [Peggotty] was aware of Mr [Jingle] and Ms [Mannette]’s The truth is that we software previous property investment Agile is the IT industry developers normally don’t really and management experience, the buzzword du jour. In fact, it’s so understand what our users want committee is not satisfied that popular that it’s transcended the IT until they start using our software circumstance removed or reduced industry and has entered the general and they can start telling us what’s [Peggotty]’s responsibilities to his business lexicon. right and what’s wrong with it. clients.” In fact, so potent is it that Spark With ‘waterfall’, users don’t get Any competent lawyer acting for famously declared that they are their hands on the product until it’s purchasers in such circumstances ‘going agile’ and told their employ- finished, so they can’t tell us it sucks would draft “stringent clauses either ees that they either need to drink until it’s too late to do anything binding the vendors to obtain a code the Kool Aid or find themselves about it. Windows Vista, anyone? compliance certificate or alterna- promoted to customer. Big, monolithic waterfall projects tively providing for the ability to So what exactly is ‘agile’ and are also like marathons. Everyone retain a significant portion of the should you care? is running for what seems like an purchase price in escrow, reflecting Agile is an umbrella term for eternity. The developers are tired the expected building costs once the software development practices and in pain and they struggle extent of the potential work was that emphasise adaptive planning, to remain enthusiastic about an ascertained.” evolutionary development, early endeavour that seems like it’s never “Indeed, a clause permitting the delivery and ongoing improvement. going to end. Often the developers purchasers to terminate the contract Remember that developing are the first ones to realise that once the extent of rectification and software is an incredibly risky their software sucks too, which upgrading work to secure compli- endeavour. Most studies put the makes it even harder for them to ance was available or termination failure rate of software development keep pushing for the finishing line. if established that no compliance projects at around 70%. Think about To add insult to injury they nor- certificate could readily be obtained, it – almost three quarters of software mally have project managers and would have been prudent.” development projects are flops. Can other non-technical people hanging “It appears that none of these you imagine such a high failure rate around and micro-managing them matters were raised to any mean- in any other industry? as they sweat their guts out. Not fun! ingful extent with Mr [Jingle] and A major contributor to this failure Ms [Mannette], and accordingly rate is the traditional ‘waterfall’ First, deliver small they cannot be said to have given project management approach for Agile takes a completely different informed consent,” the committee software development. This is where approach. said. we do all of the planning, design and Instead of entrusting expensive, Ms Mannette sought compensa- budgeting up-front then develop complex software development tion for substantial losses claimed. all of the software, then do all of projects to the project managers, Noting that standards committee the testing and then, if we’re still product designers and line manag- compensation awards are limited standing, inflict whatever we’ve ers (who are so often wrong), agile to $25,000 and that Ms Mannette developed onto our users. focuses on building projects around had civil remedies available to her, The problem with this approach, motivated, skilled individuals and the committee declined to make an which originated from the construc- trusting them to make magic. order for compensation. In addition tion industry, is that the initial plan- Instead of trying (and failing) to the fine, Peggotty was ordered to ning and design is almost always to specify 100% of the product pay $1,500 costs. ▪ fundamentally flawed. requirements and design up-front,

48 LAWTALK 924 · December 2018

agile focuses on delivering small at first, then on delivering iterative changes and improvements and continuously gathering user feedback. The seminal 2001 Manifesto for Agile Software Development sets out the following key values: • Individuals and interactions over processes and tools. • Working software over comprehensive documentation. • Customer collaboration over contract negotiation. • Responding to changeover following a plan. So does it work? Absolutely! When applied effectively, an agile method- ology can completely transform the software development lifecycle. It is so effective that Choice Technology (my company) would never go back to the traditional ‘waterfall’ approach. Unfortunately, like so many of the cool ideas that come from the tech sector, the term ‘agile’ has been bastardised and abused in the cor- than those who manage. ongoing changes and on collabo- porate environment and in many Large corporations are, by defini- rating openly and proactively with companies it really is no more than tion, hierarchical. They are designed users and other stakeholders. a buzzword. to take authority away from the Almost all projects would benefit You can’t take mediocre teams (or motivated and skilled people at the from being flexible enough to even companies) and make them business end of the organisation. It’s respond to change during execution, exceptional by making them ‘agile’. just not in the DNA of large organi- particularly as opportunities present Although I’ve seen some truly sations (including most technology themselves to do stuff smarter and astonishing results from agile teams companies) to make a true commit- better than originally anticipated. in large organisations, anecdotal evi- ment to agile methodologies. You simply can’t apply agile dence suggests that agile techniques How many middle managers do techniques to repetitive ‘business as have failed to deliver significant ben- you know who would acknowledge usual’ processes (sorry Spark), but all efits to most large organisations who that their troops are probably more companies should be continuously have adopted them. Even worse, competent than they are, so they gathering feedback and improving many organisations have developed should just get out of their way? processes and tools. Often the best an ‘emperor’s new clothes’ syndrome ideas about how to improve these where they congratulate themselves So should lawyers processes or tools come from those on how agile they are while users care about agile? at the coalface, so corporations have grumble about how crappy their IT I certainly think so. For a start, you to figure out how to gather and act systems are. can now tell clients what ‘agile’ on this information. ▪ So can you take a large, moribund actually means and why Spark’s organisation and make it ‘agile’? In agile strategy is doomed to failure. Damian Funnell  damian. a word: no. There is also a lot to learn from [email protected] Agile is about the decentralisation agile techniques and you could find is founder of Choice Technology, of authority. It’s about delivering opportunities to provide clients with an IT services company, and iterative changes in response to advice on how to be more ‘agile’.  panaceahq.com, a cloud user requirements and feedback. It’s Personally I think that all projects, software company. He has a about recognising that those who software development or otherwise, long-standing involvement with deliver are often more competent should focus on delivering iterative the legal services industry.

49 PRACTICE December 2018 · LAWTALK 924

PRACTICE When the heat affects your work: safety in the workplace when summer peaks

BY CRAIG STEPHEN

2016 (HSWR) which came into force on 4 and harder in practice to enforce, through If this summer is anything like last April 2016. health and safety regulations rather than year’s, then offices and other indoor venues Regulation 10 provides that a person addressing comfort and workplace suit- could again turn into ovens. conducting a business or undertaking ability. This should be addressed by the NIWA says the nationwide average tem- (PCBU) must ensure, so far as is reasonable Government when the Act and Regulations perature for the 2017-18 summer was 18.8 practicable, that: are reviewed in 2020.” degrees, 0.3 degrees above the previous • there is suitable and sufficient ventila- record set in the hot months of 1934-35. tion to enable workers to carry out work Vigilance over So when is it too hot to work in the office without risks to health and safety; and temperature control or in court? • workers carrying out work in extremes One ERA case highlights the need for As a comparison, this year’s unusually of heat and cold are able to do so without employers to be vigilant over temperature high temperatures in Europe led the UK’s risks to health and safety. control. Trades Union Congress (TUC) to call for “Where a PCBU has a duty under regu- In Manson v Tom Ryan Cartage Ltd [2010] a maximum workplace temperature of lation 10, the Health and Safety at Work NZERA 32 (26 January 2010), Mr Manson 30 degrees for non-manual work, and 27 Act 2015 (HSWA) requires it to identify the was admitted to hospital with pneumonia. degrees for manual work. likelihood and degree of harm arising from After his return to work, he was dismissed. “If people get too hot, they risk dizziness, working in extremes of heat and cold and He raised personal grievances for unjus- fainting, or even heat cramps. In very hot to put in place suitable control measures tified dismissal and for unjustified disad- conditions the body’s blood temperature to manage the risks – such as air condi- vantage on the basis that the employer had rises,” the TUC warned. tioning,” says Mike Mercer, a solicitor at failed to provide adequate heating in the While sunburn won’t affect those mainly Simpson Grierson. workshop, causing his bout of ill health. working indoors, dehydration and over- The Employment Relations Authority heating are real dangers. Backward step, says CTU accepted Mr Manson’s disadvantage claim, First Union, which represents mostly The Council of Trade Unions, however, observing at [38] that “every employer white collar workers, points to WorkSafe’s warns that changes introduced in the has an obligation to provide a working recommendations on maximum HSWA have resulted in a backward step. environment which is reasonably free of temperatures. “The Health and Safety in Employment obvious health and safety deficits and a “WorkSafe recommends air-con units be Act 1992 specified facilities must be suit- large unlined hangar type vehicle work- set between 19-24 degrees in the summer able with regards to factors like humidity, shop without adequate heating operated and 18-22 degrees in the winter but it’s lighting, temperature, ventilation and wind by a sole charge mechanic in the depths important to point out each individual that an employer needed to maintain, of a Christchurch winter does not meet person is different, and so often a con- considering the kind of work that people the employer’s obligation in this regard”. sensus needs to be reached, especially in were doing,” says CTU President Richard Solutions to over-heating include: big offices as older people and people with Wagstaff. Air conditioning: However, WorkSafe certain conditions do feel the cold, or heat, “However, the newer law simply says notes that “Sometimes air conditioning more than others,” says divisional secretary businesses have to provide facilities for units do not supply enough fresh air to Jared Abbott. ‘suitable and sufficient’ ventilation and an area which can cause sick building Regulations come in the shape of the lighting for ‘workers carrying out work in type problems. If not maintained properly, Health and Safety at Work (General Risk extremes of heat or cold’ – which is a much they can harbour fungi or bacteria that can and Workplace Management) Regulations narrower set of applicable circumstances affect the health of employees”.

50 Ventilation: “A good ventilation system meter, or get a rough gauge from some smartphone apps as to can remove hot air from a building. It is whether the lighting might not be optimal. It’s also helpful to also good for removing any contaminants have different kinds of lighting available for different office tasks.” from the air,” adds WorkSafe. Mr Abbott suggests that if staff are uncomfortable with tem- Fans placed on desks are a quick-fix to perature or lighting in their offices they have a discussion with alleviating over-heating. their immediate colleagues first, and if they are unable to solve And on a personal level, it’s important the issue, approach their HR department. ▪ to state the obvious, that when it gets too hot, it is vital to drink water, or drinks with With thanks to Mike Mercer, a lawyer with Simpson Grierson a high salt and electrolyte concentrate. in Wellington, for his assistance with parts of this article. And what if it’s too bright? First Union also warns of the impact of poor lighting on staff. DOING DISCOVERY? www.lawflow.co.nz “Lighting, like temperature, can cause workers a lot of discomfort if it’s not quite LawFlow is a web-based discovery system designed, developed and right; they may seem like small issues hosted in New Zealand, used by New Zealand law ﬁ rms since 2012. but can build up over the day,” says Jared Abbott. ∂ Generate discovery lists and electronic bundles “There’s been some interesting research Full-text search your discovery documents ∂ Remote access via any web-browser on lighting in the last five years; it can affect ∂ And much more! mood and productivity so it’s important ∂ to get it right. If employers are concerned Take a free, fully-functional trial today! Visit our website for details www.lawﬂ ow.co.nz about lighting levels, they can hire a lux

51 PRACTICE

PRACTICE Responsible briefing Reversing the lens

BY SIAN WINGATE

The user needs analysis

In the October issue of LawTalk, ILANZ offered its A fundamental need of instructing collective thoughts on practical ways in which in-house in-house counsel is legal support from counsel can be model clients when instructing their its external legal provider to meet external legal providers. the business and risk management This month, we continue to gather in practical advice, needs of its employer. The reciprocal but in reverse. ILANZ applied a user experience mind-set need of the external provider is to to test the practical suggestions made with the users possess a good working knowledge of themselves, the external counsel we instruct. its client’s world and business goals to achieve its client’s goals. A user experience mindset Bell Gully reflects that “since User experience design is the process of enhancing user an in-house lawyer knows the satisfaction by improving the usability, accessibility, and business best, acting together and pleasure provided in the interaction between the user pooling resources can lead to great and the product. outcomes”. The holistic user-experience is made up of three com- The law firms share their practical ponents: the user needs; the business goals of the user; methods of achieving their needs. and the information about each of the above. In-house counsel reading this may think to them- The coffee catch-up selves, “hang on a minute, WE are the user, NOT our This New Zealand institution is more external legal providers”. That is true of course in relation than a caffeine hit. Bell Gully tells us to the product of legal services that is purchased by us that “you really can’t beat having a from external counsel. coffee catch-up or meeting in person Reversing the lens, ILANZ identifies that there is a to gain some of the broader perspec- product that we, as instructing in-house counsel, supply tive … it really can pay dividends to our external legal partners. Consider this: later in tailoring advice.” Understand the • A “product” does not have to be bought or sold. organisational structure • A “product” is also defined as the result of an action Follow the industry Chapman Tripp values learning or process. Greenwood Roche recommends about a client’s organisational struc- • The action of instructing and the process of how this following industry news and joining ture and about the people who work is managed are the defining features of the in-house the relevant industry association of in the organisation from the man- interaction with its external counsel. the client if possible. agement down. Knowing who your • Our in-house “product” is therefore the result of the client’s stakeholders are and how above: this being the relationship with our external Read annual and half- they fit in the overall instruction is counsel. yearly reports important for the in-house lawyer ILANZ worked with its sponsor partners at Bell Gully, How many in-house counsel actu- taking internal instructions. It is Buddle Findlay, Chapman Tripp and Greenwood Roche ally read our own annual or half- just as important for your external to better understand how the relationship really matters yearly reports? Understanding the counsel to know this too. Exchange in determining how useful, accessible and pleasant story behind the numbers and the of an organisation chart and a walk the resulting provision of legal support can be for both reports is invaluable according to through who does what is a quick parties. Greenwood Roche. win.

52 Meet the key stakeholders in this effort: as do our external legal providers. Buddle Findlay engage periodically with people in the The law firms ILANZ spoke with are unanimous in the wider business to ensure they are up-to-date with the value of the time investment of sharing these business wider context in which they provide their advice and to and strategic goals with them. understand the current strategic focus of the business. • Chapman Tripp told ILANZ that “the more we learn This is echoed by all the law firms ILANZ spoke with: about our clients’ businesses, objectives and goals, meeting the business teams adds a rich layer of context. the more effective we can be in providing the best advice, in the most user-friendly format, not only as Identifying the business goals requested but also, as someone that sits outside the Your employer, your own in-house legal team and business, being able to identify other opportunities every one of your internal client teams will have its that fit with the client’s strategy and goals that those own business and strategic goals. within the organisation may not have picked up on.” We make it our business as in-house counsel to have • Bell Gully enjoys regular updates as they say that a helicopter view of such goals and to try to align our “it’s great to have an ongoing dialogue of what is legal practice to achieve these goals. We balance being happening internally and what the priorities are for a facilitator with being a risk manager on a daily basis the business”.

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• Buddle Findlay explains that in good instructions, as approachable (even if this is not the case in reality). “we might have a conversation with the client, before The consensus from the law firms is that having access being asked to look at any documents, in which case to the business is a key user need that they have. we are given a good overview of what the client wants to achieve, and how it intends to achieve that result”. How to overcome the gatekeeper effect • Greenwood Roche notes that it “can’t overstate the Some suggested approaches that the law firms offer to importance of providing background and context to overcome the concerns above are: instructions, particularly if they are urgent and given in haste”. This includes the strategic and business goal Agree clear parameters with your external your team or your internal client is trying to achieve. counsel and your business units on cost All large law firms have developed pricing arrangements Information gathering to suit all manner of needs: you just need to ask. The culmination of the investment by law firms in Bell Gully comments that law firms “understand that the methods described above and the reciprocal time in-house counsel are managing their own internal spend, invested by the instructing in-house counsel to engage but are also often part of a wider project budget”. They in these methods all lead to the acquisition of this third, say having the fees discussion early on is a win-win. fundamental input needed for a useful and enjoyable This will help to manage expectations about the level user experience: information. of seniority you are expecting on the file and the level However, the law firms lament that they cannot of certainty you are looking for on costs. always access the information they need to do a great Greenwood Roche reflects that the benefit of access job. It is the experience of some law firms that in-house to the internal stakeholder is that “it is no surprise that counsel can act as a ‘hard gatekeeper’. This is keeping the in the strongest and most enduring client relationships, external legal adviser at arm’s length from the business. we are treated as ‘part of the family’. That does not mean This can frustrate efforts to get in-depth information we become complacent; on the contrary, the client’s that is critical to tailoring the advice or legal product. concerns become our concerns and, moreover, we are more likely to pre-empt legal needs and risks/opportu- The gatekeeper effect nities proactively. Ultimately this is more cost-effective”. Some observations from the law firms on the gatekeeper approach are that: Explain your information management • “This can be counter-productive, and can result in requirements to both your external the provision of advice that is not as responsive to counsel and your internal client the needs of the business as it could and should be”. If you use a matter management tool, the external • Gaining access to the internal customer “at the very counsel and internal client could input into it directly least saves in-house counsel from having to interpret with information exchanges (emails, telephone notes, or repackage advice”. document exchanges) saving you time and ensuring • It can actually be frustrating to feel that “we are being the matter management tool is up-to-date. held ‘at bay’ by a legal division and sometimes it’s If Outlook is still your go-to filing system, you could really useful to have access to the in-house client direct request that your external counsel emails you a tele- so that we can engage directly – as part of a team with phone or file note summarising the internal exchange the in-house legal advisor. This shouldn’t necessarily and set up a rule to move these emails into a sub-folder be seen as double-up: we can act as a foil for each to catch up and read later when suits you best to avoid other and add value that way.” a feeling that you are drowning in CCd emails. ILANZ looked into why this gatekeeper approach might One law firm kindly reminds us that they have PAs be applied. and legal secretaries. In-house legal teams and our It can be due to a concern that fees will stack up due business units rarely have the luxury of this kind of to the minutes external counsel spend speaking with resource. Utilising the resources available to a law the business and a lack of control around cost-control. firm and which are priced into their fee structure is Many in-house legal teams are a cost-centre who have paramount to efficiency. to reduce legal spend, not increase it. Another concern is that silos of information can be Arrange a meet and greet with your internal caught in the direct exchange between the internal client clients and the external lawyer they may and the external lawyer which, in turn, causes issues for partner with now or in the future in-house counsel not being across the matter themselves. Include your internal client in a post-instruction phone It can also be due to the business team’s lack of com- call or meeting to supply valuable context and to comfort in dealing with a ‘firm lawyer’. Lawyers can be a little municate the business goal. intimidating to business units. In-house lawyers strive Greenwood Roche makes the innovative suggestion to overcome this by being approachable facilitators. The that it could be useful to do some sort of reverse busi- business may hold the perception that an ‘external’ is not ness/legal topic briefing. The internal customer briefs

54 both you and your external counsel so that both sets of real value. lawyers get value out of the occasion. Often we arrange Anthropologist and leadership author Simon Sinek these for ourselves in-house to get up to speed with reflects that, “as human beings we put a premium on upcoming projects, business unit tactical plans or les- time because it is an equal commodity and it is a non-re- sons learned: it would be a huge benefit to remember deemable commodity”. An in-house lawyer is always to include the other lawyers who help the business, working to full capacity: this is our world. There is always the external firms. something on our to-do list. We do not experience the Chapman Tripp tells us that it “strives to work col- peaks and flows that can occur in private practice. The laboratively with in-house teams in supporting their more work you do, the more that follows as your internal internal clients in whatever form that takes. Sometimes customers start to trust you as an adviser. that is being the extra pair of hands behind the scenes It follows then that if our time is a commodity then when things get busy and other times it is working we want to spend it wisely. collaboratively with in-house lawyers supporting them The time we spend cultivating our relationships with at the table with internal clients”. our external legal providers in the ways described above is time well spent in the view of both the firms and of Reflections on the user experience ILANZ: it means in-house lawyers can truly add value to When ILANZ asks lawyers of both the in-house and all of our ‘users’, including our employers, our internal law firm practice type why they enjoy being a lawyer, clients and our external legal partners. ▪ the response is almost universally the same: they enjoy helping people. Sian Wingate is president of ILANZ, the Law Society’s This is a core function of a user experience: to gain In-house section. This article includes contributions pleasure from the interaction. The way in which external from Greg Wise of Chapman Tripp, Brigid McArthur legal providers can gain pleasure from their interactions of Greenwood Roche, Jennifer Caldwell and Lisette with in-house clients is knowing that they have added Hood of Buddle Findlay and Jenny Stevens of Bell Gully.

55 56 LAWTALK 924 · December 2018 PRACTICE

PRACTICE Focus on Timaru House prices and schooling major drawcards to Riviera of the South

BY JOCK ANDERSON

Canterbury-Westland branch of the travelling to and from work. “I can It is hard to attract experienced New Zealand Law Society. walk out of the office, get in my car young lawyers to Timaru, and to Initially, Anne-Marie worked in and get home easy.” make matters worse, the pool isn’t another firm, but says it became “We have other lawyers in the great for someone looking for a too difficult for her to do defence firm who have children and they soulmate to keep them in the South work against the Crown team of Tim manage to juggle everything. Most Canterbury centre. and Andrew “so I had to go and join of us are part-time to a degree. I’m While recent law graduates will them, otherwise the conflicts were three to four days a week but still grab anything going, finding lawyers arising frequently”. do a full week in that time.” with two or three years’ experience is difficult, says Anne-Marie McRae, Main attractions Plenty of schools who works in the Crown team at She says the main attractions in She says Timaru has plenty of Gresson Dorman, alongside her hus- Timaru are the ease of getting to primary schools and most are now band and Crown Solicitor, Andrew the office and parking – a sentiment zoned because of the influx of num- McRae. echoed by other practitioners, many bers, and there are five high schools. But if you want to settle, raise a of whom are also “imports”. “If you are a sporty person we family, enjoy a broad general prac- Anne-Marie says lawyers get right have amazing sports facilities here, tice and have a clearer pathway to into the work they would like to do. including the spectacular Caroline partnership, most local lawyers say “We employed a couple of juniors in Bay Aquatic Centre. There are great Timaru and South Canterbury is an the Crown team and they were able facilities for basketball, netball, ideal spot to do so. to come in and get a whole array hockey, cricket and tennis. Born and bred Cantabrians who of work, whereas if they were in a “Andrew and I were about 30 did their law degrees at Canterbury bigger centre they would start off when we came here and we knew University, the McRaes are “imports” with the lower end work, such as our next step was family. We have from Christchurch who moved to sentencing and appeals.” managed to immerse ourselves Timaru in 2009 to further Andrew’s “Here, you can get straight into in the community both through career prospects. junioring on trials, even a murder activities we have got involved in “Andrew was looking to the trial. We are such a small team we and have met friends through our future, knowing that long-serving get that array of work. children. Crown Solicitor Tim Gresson was “It’s the same working in the “Maybe the younger people can’t heading towards retirement. The commercial team and because there see that yet.” opportunity arose and Andrew are limited numbers you get to do Andrew’s busy Crown warrant went in as an associate, became a bit of everything and get to build covers the area between Rakaia partner and applied for the Crown a general practice if you want, as in the north, Ashburton, Methven, warrant when Tim was ready to well as specialise.” Twizel, Tekapo, Oamaru and resign,” says Anne-Marie, who Anne-Marie, who has a school-age Hampden, south of Oamaru. represents South Canterbury on the child and a toddler, says it is easy to Outside Crown work business balance work and family life mainly is basically around conveyanc- ◂ Port of Timaru  vjpaul bnd because there is no large distance ing, merger, commercial, family,

57 PRACTICE

Timaru at a glance

The Timaru urban area is home to about 30,000 folk, and rising quietly. The Timaru district includes Temuka, Pleasant Point and Geraldine, giving a total combined population of more than 47,000.

Timaru is an agricultural service town, the second largest fishing port in New Zealand, and one of the major cargo ports of the South Island, with a number of light manufacturing plants associated with the export and import trade. Many of these producers are involved with processing, packing and distributing meat, dairy and other agricultural produce.

Caroline Bay beach is popular with holiday-makers and is the venue for many community events, including the now annual Rock and Hop car festival, which raises about $80,000 for the South Canterbury Hospice. relationship property, care of children and employment. Resource management work suffered a blow with the The Caroline Bay Carnival, from Boxing Day to death in a bicycle accident this year of resource man- mid-January, features live performances, games agement partner Jane Walsh, who was building up a and side shows. good RMA practice with Georgina Hamilton. “One comment we had from a Timaru born and bred Timaru also boasts New Zealand’s largest inline person who we thought might want to come back, said speed roller-skating teams and a purpose-built they were not ready to come back yet. They still wanted $1 million track. to be in a big city and maybe find their soulmate because the pool for that in Timaru isn’t great.” Famous Timaruvians include pianist Michael Houston, pioneering aviator Richard Pearse, Undiscovered gem and rural idyll shotputter Tom Walsh, runner Jack Lovelock, Timpany Walton partner Alice Caird describes Timaru boxer Bob Fitzsimmons, poet Alan Curnow, as an undiscovered gem. author Owen Marshall, Cardinal Reginald Originally from Taumarunui, Alice came to Timaru Delargey, broadcaster Phillip Leishman, rally for her first job after graduating from Otago University driver Hayden Paddon, swimmer Danyon Loader and has been with the same firm for 21 years. and a racehorse called Phar Lap. “In my time here there has been a big increase in the basic three-bed brick home you used to be able to buy Timaru currently has one resident District Court for $200,000. It’s now around $300,000 to $350,000, Judge, Judge Joanna Maze, who also sits in but still really affordable.” Ashburton. Circuit judges also sit in the District Alice defied the logic by meeting her future husband Court and the High Court is serviced by judges a few months after arriving in Timaru and the couple from Christchurch. have daughters aged 11 and nine. They live on a small farm near Otipua, on the outskirts Timaru has 58 lawyers of whom 30 are female. of Timaru, which her husband looks after. Their children Temuka has two and Geraldine one. Waimate attend the local rural school and the family are into the now has no permanent lawyers and is serviced outdoors. “I live in the countryside and can drive to by RSM Law from Timaru. work in 15 minutes – that’s great,” says Alice. “It’s going to be tough to balance family and work no

58 PRACTICE

▴ Alice Caird, partner at Timpany Walton

Timaru lawyers generally miss a broader professional interaction but say there is a good local collegial atmosphere and socialising is about to be cranked up. And while some Timaru firms trace their roots back between 100 and 150 years, Alice says it is also important to be future focused and have a progressive feel as well. While she is not a litigator, Alice says having a new courthouse and a resident judge has been great for the profession and the justice system. matter where you are, but here, if the kids have assembly “It is good that we still have retained the facility here so or something on at school, it is easier to get in your car we still have High Court jury trials. It’s good for the Bar.” and be away for an hour for lunch, and be back. “In Auckland or Christchurch it could take half an Home for lunch and finish work early hour to get out of your own street. RSM Law director David Forman moved to Timaru in “I wouldn’t be able to park right outside my favour- 2005 from Hamilton because his wife wanted to be closer ite shop. There is scope for you to have family life, get to her family and with one young child he was attracted involved in the community and go home for lunch if to a smaller town. you wanted to. “Less traffic and more time. I can pop home for lunch “At the same time we have a pretty good standard most days, finish not long after 5 and go mountain biking, of legal work and a lot of interesting businesses doing skiing and snowboarding, all close to Timaru. fantastic things here. There is a lot of scope for good “There’s less civil litigation here but we do more gen- work as well as having a reasonable lifestyle. eral legal work than you would otherwise and that’s a “Scope for specialisation and niche work isn’t quite positive for some of us,” David says. so great here as it would be in a bigger place. But with He spends little time in court but the firm has criminal technology changing all the time you can be here and and family lawyers in Timaru’s busy court frequently. still connect to wherever. There are practitioners who “Timaru is reasonably attractive for some practitioners work here but are an outpost of a firm in Ashburton or who have a young family. But it is difficult to attract Christchurch.” the two to six-year post qualification lawyers. They are She says her partners have been generally supportive generally at an age where they would rather be in the and accommodating of her having a family, which has big cities. been appreciated. “But it has its own challenges and “But once we have staff past that age, and if they consequences for your career.” have families, they put down roots and stick around. “Timaru is well serviced for facilities, with excellent Hard to find a downside high schools and sporting and recreational facilities. Like other lawyers, Alice says it is hard to find a downside Dunedin and Christchurch are just a couple of hours in Timaru, apart from the ability to get to some bigger away if you want to go to see something.” events, concerts and cultural things in bigger cities. Like most smaller communities, lawyers are often “But we have the Caroline Bay carnival, the Theatre asked to get involved in local community affairs in Royal and the outdoors.” various honorary positions. Among other things David

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▴ David Forman, director at RSM Law advises the local branch of the New Zealand Deerstalkers Association “but I am not a hunting man”. “The only downside is if you had a particular interest in legal work in ▴ Paul Tyler, now have to take on another one, can get here. Half a million dollars a specialised area then you would Pauline-Jean maybe two,” he says. gets me a 1500 square metre section struggle to find that work here,” Luyten, and The firm deals predominantly and a 3,000 square foot house next David says. the team at with elder law, estates, conveyanc- to an art gallery. You can earn good “You are out on a limb a bit from Aoraki Legal ing and employment law, with little money but don’t need as much as the profession and you tend not to court work and no legal aid work. Auckland. go to some distant seminars, but “It is quite difficult to attract “Vicki and I like socialising, then, I wanted to come here so I lawyers and we are also fussy. We mixing and mingling. I’m a member do not see too many negatives.” have had a lot of applicants and I of the South Canterbury Club, and David says the reality for a lawyer have been very disappointed with I like going to work.” coming to a smaller town and a the grammar. I’m quite hot on this. If Paul’s business partner Pauline- smaller firm – and it being more you can’t write I can’t teach you, it’s Jean Luyten and her Welsh husband difficult for law firms to attract staff too late. I can teach you law. We are Steve have three children under six – means there is a clearer pathway not going to take on just anyone.” and make the sharing of work and to partnership for those lawyers. He says keeping younger experi- family duties work. “There is less competition so the enced lawyers is hard because they Because of the four-hour return pathway to become a business often do a couple of years work, do trip Paul says Timaru misses owner is a lot easier.” their OE and then get grabbed to out on some collegial events in work elsewhere. Christchurch, but local lawyers are An Englishman abroad “There has been a lot of move- big on webinars, especially to keep “There was a job here so I thought, ment between local law firms in up with continuing legal education. why not go to Timaru?” says the last year, which has left some And in November Timaru’s Englishman Paul Tyler, who moved firms short of staff, but we are about representative on the Canterbury from Whakatane in 2010 and this right at the moment. Westland branch of the New year took over Aoraki Legal with Zealand Law Society – Anne-Marie Pauline-Jean Luyten, a born and Puzzles at tea break McRae – organised the first social bred Timaruvian. “We employ people who have got to get-together for some time, hoping Paul and his partner Vicki be happy. If we don’t get the feeling they will become regular gatherings. McConnochie live in what he they are happy people we would describes as a big, rambling house not employ them because we have (Sources: Timaru District Council, New next to Timaru’s Aigantighe Art a group of happy people here. We Zealand Law Society). ▪ Gallery, and four minutes from his play puzzles at tea break and have office. a communal puzzle. Semi-retired freelance journalist “We are flat out. And have gone “One of the best things about and lawyer profiler Jock Anderson from nine to 12 staff since April, living in Timaru is house prices. It’s  [email protected] is when we took over the firm, and outrageous what sort of house you happy to have settled in Timaru.

60 PRACTICE

PRACTICE Working separately, but together A profile of Barristers Chambers in Dunedin

BY NICK LawTalk met the lawyers at environmental law. He is also BUTCHER Barristers Chambers in Dunedin. The the Chancellor at the University faces have changed over the years of Otago, and over the years has and today’s version of Chambers been involved in a wide range of includes: professional and community organ- Otago has a strong Independent Bar. It is a work • Dr Royden Somerville QC, isations. He has also lectured at the style that particularly suits lawyers who are managing • Len Andersen, University of Otago in environment the demands of practising law in sync with other com- • Alison Douglass, law. mitments such as being involved with Otago University, • Cate Andersen, being a member of various boards or writing books. • Will Anglin. Community- That is, perhaps, the appeal of not being a law firm Dr Somerville returned to Otago driven people partner or running a general law practice; a barrister in 1979 to set up a chambers as a “Many barristers are heavily is able to focus on being a ‘specialist advocate and barrister sole after practising law involved with their community and litigation advisor,’ as Dr Royden Somerville QC writes in New Plymouth as a partner in the profession,” he says. in the chapter ‘The Independent Bar in Otago’ in the Middleton Young and Co. “Being a member of Barristers book Occupied Lawfully. He specialises in public and Chambers is a very collegial way

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of practising law. It works well in the sense that we can share facilities including the library and administrative services. At this chambers we have the benefit of everyone practising in discrete areas. We can discuss with each other developments in the law and common issues. Most of us have been involved with continuing education and litigation skills.” Instructions or work for barristers generally comes via a solicitor from a law firm. Confidentiality is paramount, so it would not be uncommon for barristers sharing a chambers to be unaware of what each other is working on during the course of a week. A barrister, a lecturer and a president Len Andersen is a high-profile barrister who moved to Dunedin from Whakatane in 1991. He had known Royden Somerville for some time and the pair set up Barristers Chambers. It changed location a couple of times and at one stage there were about 16 barristers under the same roof. Mr Andersen is also the President of the Criminal Bar Association and he lectures in advocacy and forensic law at the University of Otago. He says while sharing resources in Chambers is an obvious cost-cutting advantage, there are many other reasons to coexist. “I think people can get a bit lonely if they work alone. I also think that to some extent it probably attracts work when you’ve got a group of barristers all specialising in different areas. There is some overlapping in what we do but across the board we have most things covered,” Len says. Len Andersen describes himself as more of a general practitioner in that he does civil, criminal work, some resource management act work and even Family Court work which is generally related to property. any given date, things work out. The courts are quite Family in chambers flexible. It’s once you’ve got a date for court, changing Mr Andersen’s daughter Cate followed in her father’s that date could be difficult, so you learn to manage your footsteps and after practising criminal law in Tauranga, time well,” Len says. she made the move to Dunedin to join Barristers Chambers. Managing the threat of burnout “That’s worked out remarkably well because she had He’s never felt any symptoms of burnout and he does worked elsewhere first. She came here independent, delegate work to his daughter which takes some pressure not reliant on me at all,” he says. off him. That’s backed up by Cate. “But as Cate has developed her practice she too has “I grew up in Whakatane and a job came up in become busy and has less time to help me. Sometimes Tauranga. I didn’t want to start practising law around you do have to turn work away,” Len says. my father who had previously practised in Whakatane. I A common scenario highlighting the independence wanted to develop my own style away from his watchful of a barrister is when a law firm will hire a barrister to eye,” Cate says. give a client advice that might not be entirely palatable Like his colleagues, Len Andersen appears to have his for the firm. hands on a wide range of work but as he says he has a “That distances the firm from the advice because it’s low threshold for boredom, therefore mixing practis- independent and therefore the client won’t hold the ing law with lecturing and heading the Criminal Bar advice given against the law firm,” he says. Association is manageable. He says that might also mean the barrister is hired “There’s been the occasional clash with lecturing but to carry out the proceedings. "You’re essentially a hired really as long as you know where you’re going to be on gun,” he says.

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able to look at the issues around mental capacity – the rights and interests of people with disabilities and how doctors assess their mental capacity,” she says. The Law Foundation is also funding work on a book she is writing which is a practical guide for both doctors and lawyers about assessing mental capacity, with the help of a psychiatrist and an ethicist. Ms Douglass has a Master’s degree in Medical Ethics and is an Adjunct Senior Lecturer at the Bioethics Centre at the University of Otago. Most people on a Friday afternoon are attempting to wind down from their working week but on the day of the interviews, Ms Douglass was waiting to hear whether a High Court trial in Nelson involving estate litigation in relation to a will would go ahead. And while that was going on in the background, there is the ongoing health and disability law work in Dunedin. “I’m often, as a court-appointed lawyer, representing people with disabilities or who lack capacity under the Protection of Personal and Property Rights Act or people with intellectual disability who are under compulsory care. The Family Court has a wide jurisdiction and this is one area of the court where I have spent many years representing people in those situations,” she says. She also has a general litigation practice which takes her into the Employment Court, along with civil and estate litigation in the High Court. Do the things that interest and stimulate It does sound like a juggling act that few could or would want to do but as she explains, being a barrister does provide a lot of opportunities. “When you’ve been practising for a while, you can focus on the things that interest and stimulate you. It’s about balancing things so that it is possible to do this. I’m really interested in ethics and for several years I was the chair of the advisory committee on assisted Juggling multiple projects reproductive technology for the Minster of Health. I Alison Douglass has been practising law for over 30 years finished that role last year. It brought together law policy and 20 of those were in Wellington, which included and ethics,” she says. partnership at the firm Tripe Matthews Feist. Alison Douglass says there does have to be plenty She went to the Bar in 2008. In 2011 her family of what she calls ‘bread and butter work’ to justify her moved to Dunedin but Alison continued to work out of existence. Wellington from Waterfront Chambers as a ‘door tenant.’ “However, being in Chambers as a sole practitioner “That means you don’t have a room or office but you do means I have relatively low overheads. It’s a real have the use of the space,” she says. advantage. And I particularly like the collegiality here. Alison Douglass joined Barristers Chambers in 2012. Even though we are all doing different things, I don’t “I always saw myself as a flexible barrister and this has hesitate to wander into Len’s office and borrow his text worked out really well. It was Roy (Royden Somerville books or discuss a procedural aspect of court litigation QC) who got me interested in applying for an interna- I might have on. He’s very forthcoming and helpful and tional research fellowship with the Law Foundation, similarly with Roy, we talk about a lot of things. It’s which was a medical law project.” very important not to become isolated, you need that This resulted in Alison writing the law reform paper collegiality and sense of being able to sound people out "Mental Capacity: Updating New Zealand’s Law and on troubling cases.” Practice", which was published in 2016. “It was the last thing I expected to end up doing when Cheese rolls I arrived in Dunedin, but as a practising lawyer with The barristers and their staff share morning teas and a particular interest in health and disability law I was celebrate milestones, and when LawTalk visited they

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were sharing traditional southern The barristers “When I started law school, my daughter was in cheese rolls. and their year 10, so I was back to school while she was nearing They also share the photocopier staff share graduation,” he says. and printer machine, so privacy morning teas Towards the end of 2015, Mr Anglin joined the cham- must be respected. “We’re very vig- and celebrate bers as a junior barrister and much of his current work ilant with that,” Ms Douglass says. milestones, and involves assisting Dr Somerville. “I also have the help of a semi-re- when LawTalk While some might be, he is not bothered by the title tired legal secretary who is based in visited they “junior”. Wellington. I worked with Judy for were sharing “I’m pretty ego-free so I don’t care. It might bother many years when I was based in traditional Alison more than it bothers me as she has said ‘I can’t call the Capital. It’s a really wonderful southern you my junior because you’re older than I am’,” he says. relationship,” she says. cheese rolls. Will joined Barristers Chambers at the same time as The biggest employers in Dunedin Cate Andersen so for a while the members dined out are the University, the City Council on jokes such as the ‘Will and Cate show’ in a nod to the Otago Regional Council and the the Royal couple. District Health Board. As a software engineer he wrote code and created The city has a relatively small legal companies, and while it may not seem as if that profes- community so conflict of interest is sion has anything in common with the law profession, something law firms and barristers loosely it does. are constantly having to be aware “I see it as problem-solving but using a different skill of and guarded from. set. The things I work on now are more meaningful As Alison explains, the inde- personally, such as on legal issues related to climate pendence of being a barrister is an change. In software, developers often create some new advantage, and they are often able widget, and their marketing teams then go about trying to fill those gaps. to find a problem to solve with it. It’s backwards. “Law firms might come to us for “In my view, there is a lot of software that gets devel- an independent opinion on a legal oped that’s not as important socially in comparison; for issue or case they’re considering example, promoting a national environmental standard taking on,” she says. for small-scale wind so that New Zealand can accelerate Another advantage of being a the development of renewable energy generation. If barrister in chambers is that they we can reduce our demands on hydro, we have cleaner don’t hold trust accounts, don’t rivers,” Will says. manage money and pay far less in Dr Somerville says he relies heavily on Will Anglin’s professional indemnity insurance. scientific skills for some of the legal work they are both “Having been a partner in a law involved with. firm. I don’t miss partner meetings. I don’t miss having to worry about Support managing other people’s money,” Administrative support is essential and all of the barris- she says. ters have reliable and experienced personal assistants Alison Douglass was recently who are as flexible as the lawyers. The staff members appointed deputy chair of the have all been with chambers for many years. Health Practitioners Disciplinary LawTalk detected a ‘family’ atmosphere, and a real Tribunal. It’s a part-time judicial role sense of shared history. and brings together the 21 health Dr Somerville is supported by his personal assistant professions. Maureen Viggo, and his wife Lee who manages his accounts and works alongside him as an editor. They The junior who’s have been with him and Chambers since the beginning. in his fifties Len Andersen is supported by Angela Taylor, his legal Will Anglin moved his family to executive, and Donna Harris is office administrator for Dunedin from Texas almost 15 chambers and supports Alison Douglass as her personal years ago. He later studied law at assistant. A law student works two hours a day doing age 50 after many years working as office junior duties and deliveries but also gaining a software engineer, which included important experience in the operation of a barristers’ creating companies from scratch. chambers. ▪

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PRACTICE Sad Thoughts

BY JOHN BURN

was well in advance of ours (although as For retired lawyers to peruse LawTalk a barrister I was not open to the detail, is a glimpse of a new and structured world. because we were not allowed even to call The very nature of law firms has changed on the premises of any law firm, even that beyond recognition from the memories instructing us). In fact, I was once offered we have of the friendly muddle which a post as internal director of education for surrounded our own practices. Law firms one large firm, which sent me scuttling were smaller and more personal; they back to the Bar. There, we did not prepare did not carry positions with impressive briefs or have to deal with clients or wit- titles involving marketing, education nesses, being simply advocates called in at and computer advancement. And nor the last moment – or in my case, once as did they employ leagues of solicitors sole counsel halfway through a six-day trial. working immensely long hours in an The firms hired young solicitors mainly on effort to be promoted ahead of their fel- their examination or sporting records, and lows. Our clients, admittedly in my case not, as with me at my Christchurch start, in Christchurch – never the hub of the because the senior partner knew my father. country – were mostly single individuals or smallish companies, and we added to What caused the cosmic shift? their number by having gone to school But there are two factors which to my with them, or played golf with them or mind have caused the cosmic shift, and (more likely) having inherited them from they are, first, the effect of large corporate their parents who had been clients in an clients, and second, the consequence of earlier age. the front-loading of court material which And yet we interpreted the law correctly is now required. (by looking up books) and we represented First, large clients treat their legal firm as them in court more than adequately before an extension of their own business. They judges who acted properly on precise have their own in-house lawyers, who principles of justice. And of course we prefer to have their opinions supported charged a lot less, even taking into account by the appropriate partner, and who inflation, and yet we lived very comforta- The very nature expect the latter to be on call at all times, ble and well-remunerated lives. We took of law firms has whenever it suits the corporate suite. The days off when we wanted to, the entire changed beyond old-world relationship of a client seeking profession closed from Christmas until the recognition from advice from his lawyer has changed into end of January (not unfair because most the memories we him telling the latter what he wants done. legal work requires lawyers at both ends, have... Law firms And the annual fees strength of any large and then when one only was away, no were smaller and company ensures that the law firm must colleague stepped in to take his place), and more personal; go along. Not that I suggest they do so employees either became partners quite they did not with reluctance, for money can cure any soon, or left. I am afraid that our enchanted carry positions grievance, but to my mind the firms have life no longer exists. with impressive lost significant mana. This is perhaps Not much point in recalling it, you might titles involving only clearly seen when litigation partners think, but I am not so sure. We should marketing, appear in any superior court – there is an always watch what is going on. My last education unspoken but clear veil over them in the 20 years in practice were in Sydney, where and computer way they are treated by the judges, perhaps the rigid re-structuring of the big firms advancement. almost suggesting that they are seen as

65 mouthpieces rather than as counsel. But and more vulnerable. It is not for me to I know I am over-affected by how things point at the forthcoming digital revolution, were in my time, when indeed there were but most will be able to see how all but no barristers sole and all counsel were from the thinking part of our endeavours will their own firms. Litigation partners have disappear, and the big corporates will do the same rights as barristers, and often all their conveyancing and non-litigious can be better advocates. commercial transactions within their own Secondly, the amount of material which offices. Most litigation has already been must be lodged with the court before a killed by “near-enough” mediation (to hearing may commence is phenomenal, A Christchurch avoid the costs of front-ended preparation and I have written before in horror of silk told me as above), and ordinary clients will do their a system which would have been well recently of own conveyancing just as they now do beyond my abilities. A Christchurch silk a two-day computer banking. They will make their told me recently of a two-day hearing in hearing in own wills on their own computers, and which he was involved, with over 6,000 which he perhaps only criminal and family law will items of evidence and authorities punched was involved, persist less changed. Which, oddly enough, into the court computer, but of which not a with over may bring to those courts the old-style single item was looked at. The cost of that 6,000 items of personal relationship of some lawyers preparation falls upon both clients, and evidence and with those minorities of the populace increases at once the huge barrier between authorities still involved. the courts and the taxpayers who finance punched into In LawTalk I see photographs of keen them. My last trial in Sydney produced the court young lawyers, undoubtedly with the 60 box files of exhibits, but there was no computer, but ability and verve that their predecessors obligation before trial to serve them or of which not a have had over the last century or so, but I proofs of evidence, and lists of authori- single item was am sad to say that I mourn for their future. ties only came in at the end when final looked at. And I apologise for saying so. ▪ submissions were due. I have no doubt that our own small-minded legislators have John Burn  [email protected] is set up a Rolls-Royce system for an Austin a former barrister living in Christchurch. Seven journey. And the big law firms have He worked as a lawyer and then barrister constructed themselves to cope with this. sole in Christchurch from 1964 to 1980, They are not to be blamed for this, but the then as a litigation partner with a Sydney angels must be weeping somewhere. firm for two years before returning to This piece was not meant to be a rant practise as a barrister in Christchurch about lost glories of the past, but perhaps a from 1984 to 1990. From 1991 to 2013 he sad reminder for current practitioners that was a member of the New South Wales their profession has become less admired Bar in Sydney.

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PRACTICE Let’s demystify culture change in law offices

BY EMILY MORROW

what we want to be, as opposed Fuelled by the #MeToo move- to what we actually are. Basic ment, the Dame Margaret Bazley underlying assumptions reflect report, the Justice Kavanaugh unconscious, assumed beliefs, confirmation hearings and other perceptions, thoughts and feelings events, there is a lot of talk about and usually are the ultimate source culture change in the legal proof values in action. They reflect what fession. Lawyers ask me “What is really happens and why it happens. culture change, does it matter and They drive behaviour. how does it happen?” Culture and culture change can seem esoteric and Behaviour perhaps too hard to tackle. Behaviour is how people actually This article is an attempt to manage themselves, either because simplify and demystify the topic they choose to do so or because a bit. Culture change isn’t easy to they are responding reflexively. achieve, but the concepts behind it Sometimes participant behaviour need not be as complicated as they aligns well with an organisation’s can sometimes seem. These are my espoused values because the perspectives only and are far from organisation’s espoused values final or authoritative. They reflect and basic underlying assumptions my best thinking to date based both are similar. Frequently, however, on what I have studied and what I participant behaviour is at odds have seen, heard about and expe- with espoused values. In such cases, rienced in legal workplaces across behaviour is likely to be motivated organisation members experience the benefits of change New Zealand. I offer them in the by basic underlying assumptions and choose to change how they think and act in ways spirit of what I have seen work in which can be quite different from that achieve better cultural alignment. To be effective, real workplaces. espoused values, resulting in corrective interventions to hold individuals and groups To me, culture is ultimately about distrust, perceived hypocrisy and accountable need to be consistent, bespoke and timely. values, behaviour and accountabil- cultural misalignment. Consider the following scenario. Let’s assume that in ity as follows: a particular law firm there is evidence to suggest a lack Accountability of ideal alignment between the firm’s espoused values Values When behaviour violates organisa- (having to do with optimal people management, diver- Typically, organisational values tional espoused values, leadership sity and supporting lawyer professional development) present in two primary contexts: can ignore the problem, and act deci- and leadership/partner behaviour. The evidence of lack “espoused values” and “basic sively to bring participant behaviour of alignment includes “presenting symptoms” of nega- underlying assumptions” (Edgar into closer alignment with espoused tive staff feedback, low morale, high turnover, mental Schein, Organizational Culture and values or anything in between those and physical health problems and difficulty attracting Leadership). Espoused values reflect ends of the spectrum. Corrective new talent. The partners have become concerned. They strategies, goals, philosophies and actions can include punishment, are noticing the “presenting symptoms” empirically. stated justifications. They have to shaming, education, training, and They continue to give lip service to the firm’s espoused do with an organisational sense of creating an environment in which values, but inadvertently and unintentionally their day

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to day behaviour in terms of people Where the should function and how partners/ management is not aligned with the “rubber hits leaders should lead their teams firm’s espoused values. What should the road“ in consistent with the outcomes of they do? How might they enhance the culture the cultural-deciphering process. the cultural alignment in the firm? alignment For example, such discussions process is when could focus on identifying (1) any Partner level “culture- behaviour begins misalignments between achieving deciphering” discussion to change profitability and managing people A critical step in enhancing cultural individual by within the team; (2) new ways of alignment is to identify exactly what individual, working so such objectives are it is that underlies a misalignment team by team, integrated rather than being treated between an organisation’s espoused practice group as mutually exclusive; and (3) what values and behavioural realities. An by practice needs to happen within each team to excellent first step in this process group and achieve better alignment. Frequently is to have the partners engage in a ultimately within the points of cultural misalignment culture-deciphering discussion in a whole firm. vary from team to team. Similarly, which they clearly articulate the optimal “solutions” are those that flawed, dysfunctional core assump- are best tailored to each team so tions that underlie and are inadvert- they embed over time. Externally ently driving the misalignment. generated solutions can prove to be Ultimately, all culture change inter- temporary “bolt on” solutions. ventions start with a conversation diagnose the underlying causes and a commitment to take on the of a cultural misalignment. Only Education, training tough issues. Culture-deciphering the organisational leaders can do and information discussions are tough and they are so, albeit with the assistance of Certainly, education and training also essential conversations. a skilled facilitator to ensure the have an important role in a culture A culture-deciphering process group stays on track with the cul- change process. However, as a could include having a partner ture deciphering process. Only the skilled culture change consultant level discussion to (1) articulate organisational leaders can make from Vermont, Flip Brown, points the firm’s espoused values and the necessary commitment to hold out: “If education, training and its basic underlying assumptions; themselves and others accountable information were all that was (2) identify what is hindering the for success in the change process. needed to bring about culture optimal alignment between these Outsiders can assist in the process change there would be no more two; (3) generate new ways of but ultimately only insiders can smokers in the world today”. People thinking and behaving that will decipher and address the culture need to experience, first hand, the better align the two; and (4) develop misalignments. damage that cultural misalignment and implement a plan to achieve causes and the benefits of enhanced better alignment over time. Team discussions alignment. They need to get it viscer- For example, if the espoused Where the “rubber hits the road“ ally as well as cognitively. They also value in a firm is that the firm will in the culture alignment process is need to see organisational leaders consistently combine financial when behaviour begins to change holding themselves and others success with excellent people individual by individual, team by accountable, individually and col- management, why exactly is that team, practice group by practice lectively, for consistently achieving not happening? What’s the sand group and ultimately within a whole such alignment. Without this, all of in the gears and what exactly does firm. Such change is best guided the education and training in the the firm and each partner need to do by the outcomes of a partner level world likely won’t achieve much. to change that? Although external culture-deciphering process. consultants can assist in designing Firms are often well served by Lasting change and implementing culture change having facilitated, team-based dis- If things are going to change in a interventions, they cannot alone cussions to articulate how teams law office in other than minor ways,

68 LAWTALK 924 · December 2018 PRACTISING WELL

PRACTISING WELL Talking about mental health everyone must experience enough discomfort with the status quo that there is a non-negotiable commit- More supportive and ment to change (if not a desper- ation). Something so confronting resilient workplaces needs to occur that the desire to retain the status quo is overcome by the desire to change. There needs BY VICTORIA to be a commitment to more than HALLUM just behavioural change and a real commitment to think about things in new ways. Finally, there needs to be a process of reinforcing new This article is the third in a series • “Giving advice that is wrong. ways of thinking and behaving. co-ordinated by Sarah Taylor which Missing something, failing to When (1) status quo discomfort; focuses on mental health issues in weigh something properly and (2) changed thinking; (3) enhanced the legal profession. Victoria Hallum, people relying on it.” behaviour; and (4) better outcomes the Chief International Advisor at the • “Making mistakes. Lawyers in coalesce, then the culture change Ministry of Foreign Affairs and Trade, government are given the really process will start getting real trac- writes about concrete steps we can tough questions and unlike our tion in a law office. take to make our workplaces more policy colleagues we can be If this sounds like hard work, you supportive and resilient. proven wrong.” are right about that. It can, indeed, • “I worry about whether the advice entail hard work, but it need not be I give is right, especially with last dauntingly esoteric. Further, if a law There is a lot of talk at the minute requests. office is experiencing major cultural moment about mental health • “People thinking I am not good dysfunctionality and fails to respond and the law. When I first heard enough”. to it in a timely and appropriate way, that lawyers in New Zealand have • “I worry about the significance of the outcomes can be truly problem- higher rates of depression, anxiety our work and the pressure I might atic. A bit of prevention under such and stress and report lower levels of get it wrong.” circumstances is worth a pound of mental wellbeing than other profes- In short, there was a lot more worry cure. Don’t wait with the ambulance sions, I wondered if this was mostly and anxiety than I had expected. at the bottom of this particular cliff; the case in private practice. Were So, what can we, as managers, do intervene well before the edge of the lawyers in government experienc- about this? How can we make our cliff. Don’t be put off by seemingly ing the same problems? My team is work environments as supportive complex professional jargon; get on made up of a lot of really committed, and positive as possible for our with business of effective individual capable young lawyers, mostly in colleagues? and group change. It may not always their late twenties. They seem I did some work on this with be easy, but it’s not rocket science energetic, happy and confident one of my fellow managers, Alice either. ▪ and seem to really enjoy their roles Revell, and we came up with two travelling the world to international things which we are now trying to Emily Morrow  www.emily negotiations and providing advice implement with our staff: creating morrow.com was a lawyer and on the significant and interesting psychological safety and building senior partner with a large firm in issues we cover. resilient teams. the United States. She now resides But when I asked them “what in Auckland, is a member of the worries you at work?” their answers Psychological safety Law Society’s Culture Change were pretty interesting. I was intrigued to find out that Taskforce, and provides tailored They replied: Google had carried out a two-year consulting services for the legal • “Getting things wrong.” study on what makes successful profession. The opinions in this • “Making a stupid mistake and teams and concluded that the article are her own. embarrassing the government.” single most important factor was

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Our self-defence mechanisms Don’t want to look ignorant? Well, don’t ask any questions. Don’t want to seem incompetent? Never admit doubt or weakness. Don’t take any risks. Don’t want to be seen as intrusive? Don’t offer any ideas to others.

Don’t want to be considered negative? This sounds great but we are also aware that, as law- Don’t question the status quo. yers, we are highly trained to criticise and find fault, errors and lapses of logic. In fact, you could say that this is an essential part of our professional toolbox. something called psychological safety. Lawyers are highly judgemental by nature. This makes Psychological safety is the shared belief that your team it particularly challenging to create a psychologically is safe for interpersonal risk-taking. It’s about feeling safe working environment. safe to show yourself without fear of negative conse- So we are not sure exactly how we are going to suc- quences for self-image, your status or your career. In ceed. It is a work in progress but these are some of the psychologically safe teams staff members feel accepted things we are trying to do: and respected and are comfortable to speak up with • We are modelling openness and vulnerability – this ideas, questions, concerns and even mistakes. builds trust and encourages others to follow suit. This The research on the benefits is pretty compelling, means being honest about what we don’t know and especially in complex and uncertain environments. making our thinking process visible to our colleagues. Psychological safety has been shown to: • Making time for shared activities and interpersonal • Promote diversity and inclusion; connections. You can’t trust people you don’t know. • Increase the amount members learn from mistakes; • When chairing a meeting always give everyone the • Boost employee engagement; and opportunity to speak. Don’t assume that because • Improve team innovation and success. someone has not spoken they have nothing to say. While the case for psychological safety is really con- Find ways to draw out contributions from quieter vincing, one thing that makes it difficult to establish in team members. teams is that we have some pretty strong in-built defence • Forget the “golden rule” of treating people how you mechanisms that get in the way of it (see the box above want to be treated. Instead find out how they want for some examples). To create a psychologically safe to be treated. They may have different needs and environment we have to disarm these natural reflexes. preferences. My managers and I have set some goals around • Without behaving like automatons, we are working on psychological safety in our teams. We want our team regulating our negative emotions. Negative emotions members to feel free to be themselves so we benefit from can be very catching in the workplace, especially when their varied perspectives. We want to be an environment demonstrated by senior people. that promotes learning and innovation. We want our • How you treat “mistakes” is vital. The history of teams to be a “circle of safety” from which they can human development is paved with mistakes without branch out. which discoveries and innovation would never have

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didn’t want to put more pressure on people to be “strong” and “cope”. It turns out I was wrong about that. What I hadn’t appreciated was that resilience is not simply an individual characteristic that individuals display in challenging circumstances but that whole teams can be resilient, collectively.

Resilience is the ability, in the face of challenges, to: • Recover – bounce back, • Resist – tolerate but not succumb, • Adapt in response, • Thrive – learn and grow.

The course provided us with a occurred. We are trying to take a continuous learn- shared framework and language ing and improvement approach to making mistakes about stress and resilience that has and hope through this to reduce the stigma and fear been really helpful. around mistakes. Two areas of the course that How will we know we are succeeding? I think we will particularly resonated were the know we are making progress when: sections on mental fitness and • Team members feel free to ask questions and share emotional agility. partially formed ideas without worrying they will be The mental fitness section considered inadequate. required us to “think about think- • Team members, especially those from diverse ing” and was a good starting point backgrounds, feel reduced pressure to conform and for lawyers who like to be analytical. replicate what is around them in order to be accepted We focused on common thinking and “part of the team”. patterns and how they can act as • There is less anxiety about making mistakes and mis- barriers to problem-solving and takes that do occur are seen as a collective opportunity get in the way of more balanced for growth and improvement. As lawyers, thinking. What interested me was we are highly how much some of these thinking Building resilient teams trained to patterns were ingrained in our legal This was something I started thinking about after the criticise and training. 2017 election, particularly during the “100-day period” find fault, errors Examples were: immediately after the election when the new govern- and lapses of Catastrophising: Portraying ment had set a large number of really ambitious goals. logic... Lawyers something as much worse than A lot of advice was being given on really significant are highly it is. Taking a worst-case scenario issues with very tight timeframes in a charged envi- judgemental approach. ronment. I was concerned about the stress staff were by nature. Mind reading: Where we assume under and the cumulative effect of this and organised This makes it we know what the other person is a resilience course with Umbrella (an organisation particularly thinking and often think the worst. focused on providing specialist wellbeing and mental challenging Personalising: Focusing too much health training and support). I was keen to do something to create a on ourselves and blaming ourselves but had some reservations about the idea of a course. psychologically unreasonably. I wondered if by offering the course we were simply safe working Globalising: Which involves putting more individual responsibility on our staff – and environment. sweeping often negative statements

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instead of focusing on specifics which is usually more helpful. Perfectionism: Where we lose sight of the bigger picture and focus on the little things we didn’t do well. Labelling the thought patterns and discussing how to overcome them was really powerful. It gave the team a shared language and framework and helped them think how to go beyond these barriers and develop more balanced and flexible thinking. The other area that worked really well for the team was talking about emotional agility. This is about emotion control – but not in the rigid sense of simply suppressing them. We learnt first to simply notice, recognise, and accept the emotions experienced in the workplace. Then we learnt to determine whether we need to moderate the emotions. And finally we discussed strategies as team leaders and colleagues there If you would like to contribute to an to reduce or change the emotion is a lot we can do to promote mental article in this ongoing series or have while at the same time avoiding the wellbeing, create safer work envi- a topic you would like covered, please impulsive behaviour often connected ronments and build resilient teams. contact Sarah Taylor: sarah@lexvoco. to the emotion. We learnt to distin- New Zealand has come a long com guish between useful strategies such way in recent years in improving as reappraisal, distraction, accept- physical safety in the workplace. I ance and not-so-useful strategies believe that psychological safety is Some useful resources: such as rumination, suppression the next challenge. For many of us Information on Google’s and avoidance. This discussion of this may involve a blurring of the research into psycho- emotions also helped highlight the personal and the professional that logical safety and tools importance of positive emotions in is unfamiliar and uncomfortable but to apply it to your own the workplace – and strategies to the benefits in my view are worth it, workplace: https://rework. boost them. if we can create work environments withgoogle.com/print/ where we can truly thrive. guides/5721312655835136/ We are very keen to learn what • www.mentalhealth.org.nz Three steps for emotional others are doing to create (or • www.depression.org.nz agility in the workplace: maintain) mentally healthy and • www.wellplace.nz 1 Notice, recognise and supportive workplaces. If you or • www.ruok.org.au accept the emotion. your team are doing something • www.lawsociety.org. 2 Determine whether it is exciting or innovative in this space, nz/practice-resources/ helpful or needs to be please contact Sarah on the email practising-well moderated. below. ▪ Need to talk? Free call or text 3 Adopt strategies to reduce 1737 any time for support from or adjust the emotion, Victoria Hallum is the Chief a trained counsellor. while avoiding impulsive International Legal Adviser at Lifeline Aotearoa 0800 54 33 behaviour connected to it. MFAT and leads a team of over 54 (0800 LIFELINE) or free text 20 lawyers providing advice to HELP (4357). the government on all aspects of Suicide Crisis Helpline 0508 82 In conclusion, the key message from international law, including trade, 88 65 (0508 TAUTOKO). me is that though many of us work environment and natural resources Samaritans 0800 726 666. in naturally stressful environments, and peace and security issues.

72 LAWTALK 924 · December 2018 PRACTISING WELL

PRACTISING WELL The importance of doing nothing

BY RAEWYN NG

thoughts anymore. We’re always given to doing nothing – not just With the holidays around the busy or distracted. over the summer break but also in corner, we’re being asked more and It’s a fact that technology is addic- our daily or weekly routine during more often, “what are you doing tive. When we check our email, the year. this summer?” And it seems we’re see our social media notifications When we don’t give ourselves expected to answer in a way that or get the ding and vibration of the chance to have quiet time shows how busy, popular and filled texts and messages, it causes a in our head, when we’re always with doing-ness we are. dopamine release in the brain. filling those spare moments with Our society is so action-orientated This is the reward hormone which distractions and ‘stuff ’ we’re lim- (or action-obsessed) that we expect reinforces pleasurable behaviour. iting our personal growth, insight to be busy not just at work, but also The more this happens, the more and creativity. We’re not allowing in our leisure time. It’s not surpris- dopamine we get, the more we want space for introspection, reflection ing as the messages we’re hearing to repeat it and so we get caught or unconscious thought. Without all the time centre around working in a dopamine loop. The upshot is this mental space, we’re limiting harder, playing harder, getting to our more distracted, less efficient people opportunities for information to goals and striving for more. with a technology or social media process in our heads, and restricting We’re increasingly defining addiction similar to a substance or our ability to come up with new, our lives and ourselves by being gambling addiction. inspired ideas and problem solve in busy and if we’re not busy, well, a creative way. it’s somehow irresponsible, we Busyness, or efficiency? Doing nothing is not a waste of feel guilty, there’s a sense we’re With so much to occupy our time. Not only does it help us nur- wasting our time and a real thoughts and distract us, it’s easy ture our imagination, it also helps us expectation that we’ll be judged to get confused between busyness to regenerate so we can come back negatively for it. and effectiveness. not only more productive, focused We need to stop and ask ‘are we This need to be busy could be and efficient but also with lowered productively busy, or is our busy- a defence mechanism, to keep stress levels and lowered risk for ness without substance?’ out unwanted or uncomfortable health issues. And we’re not just busy with thoughts and feelings. The link between doing nothing ‘stuff ’ anymore. When we find a Being busy goes hand in hand and unleashing our creative genius spare moment we often fill it with with being stressed and what can be brought back to the work- busyness on our devices. It wasn’t results is diminished quality of ings of our left and right brain. The that long ago that we existed with- life, reflected in our mental and left side of the brain is associated out smartphones, constant email physical health. We’re increasingly with logic, analysis, objectivity interruptions or the internet – and more exhausted, more disconnected and language while the right side life happened at a calmer pace. from ourselves, our families and is more visual, intuitive and holis- Technology lets us be more friends and more wound up, unable tic. As we go through our day, we connected more of the time, so we to ‘switch off ’. Our modern lifestyle tend to be more left-brain domi- don’t miss out on anything impor- contributes to common health nant with the right-brain taking a tant. We’re constantly connected to issues – raised blood pressure and secondary role. It’s in those times our devices – as we walk down the cholesterol; higher rates of heart of nothingness that the right side road, take the train or bus, or wait disease, diabetes and strokes; sleep of the brain comes to the forefront to meet a friend for coffee – no one and fertility issues. allowing flashes of inspiration to looks around or just sits with their More importance needs to be come through.

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have more time and space to commit to existing responsibilities and look after yourself. Create routines: Just as morning routines can set you up for a good day, creating routines at the end of the day to unwind, and disconnect from work can help calm your mind and set you up for a better night’s sleep. Sink into the moment As we come up to the summer break, it’s an ideal time to think about setting aside more than just a few moments of do-nothing time. Instead of being consumed with always having something to do, somewhere to be or someone to meet, take time to just be. Instead of always thinking what’s next, wherever you are, whatever you’re doing, sink into the moment and be all there. Be mindful of the moments you’re in, the experiences you have and the connections you make, with What does doing nothing taking some time to do nothing can others and yourself. You might sur- actually involve? help our brains process information prise yourself with some epiphany When we talk about doing nothing, and look at things from a fresh moments. it doesn’t necessarily mean medi- perspective, it’s a great reason to Businesses and governments take tating for hours or heading for the take time out if you’re stuck on a time to review how they’ve done mountains. It could just be five min- problem. and consider where they’re going. utes focused on paying attention to Reduce device use: Our phones We should be able to do this for your breath or taking time during are an easy distraction and always ourselves as well. To do this, we your work day to get out of the office tempting us with that dopamine need to make the mental space to to go for a walk without distractions, hit. Restrict use and create bound- reflect, review and make decisions. switching off your thoughts about aries to reduce reliance on it so you Being busy all the time doesn’t allow work and focusing instead on being can free up time for your brain to for this to happen. mindful of the moment you’re in, just be. A few weeks off at summer, your surroundings or how it feels to Brain dump: Our short-term doing little, provides the perfect be outside. Taking small moments memory has limited capacity so environment to reflect and gather through the day could make a big having your to-do list on your mind our thoughts. It allows us to switch difference to how you’re working. all the time can be distracting and off, unwind and build energy that Consider these suggestions for slow down mental processing, we’ve been expending all year while working in more downtime into just like having a cluttered RAM regular do-nothing time can help your life: on your laptop can slow down its us stay more balanced through the Plan for it: Schedule in evenings function. Write your to-dos down to year. ▪ or weekend days without work and clear some mental space, feel more take annual holidays that are less organised and lower stress levels. Raewyn Ng  [email protected] about getting things done and more Say no when you need to: Be is a movement coach with an about just taking time off. aware of overcommitting and interest in wellbeing and holistic Give yourself permission to have spreading yourself too thin. When health, managing stress and living downtime when you need to: If you say no to new demands you’ll a balanced lifestyle.

74 LAWTALK 924 · December 2018 PRACTISING WELL

PRACTISING WELL In praise of a post- Christmas zoom out

BY KATIE COWAN

forgetting what day it is. And lo, it was Christmas time again. That time of You spend a few days in that jingly bells and clinking glasses and frantic end runs at headspace and brains zoom out of work, followed by frantic grocery runs at home. It’s a their own accord. Ideas bubble up. busy time, but I hope for you it is busy in that nice joyful Notions invite themselves in. You way where even amidst the stress there are salutations spend three days doing a jigsaw and Lindt balls. of a very boring flowerbed, and I love this time of year. I used to love this time of suddenly, there in your mind, is the year solely because of Christmas. For most of that blueprint for an initiative that will time I was a child. In my house there would be tiny solve three of your most intractable Christmas stockings on the tree throughout December. problems at once. Or it is suddenly They were made of felt and had individual sequins sewn clear that you REALLY need to do a on, and sometimes there were Mackintosh toffees inside. Masters. Or have another child. Or Sometimes the Mackintoshs were mint. I was a strange the thought occurs to you that your child who loved mint-flavoured caramel, and Christmas life is pretty damned authentic and was my Christmas. beautiful, and isn’t it nice to have Even as a teenager, when most of the tiny stockings this moment to pause and take it had been lost, and the ones that remained had long all in. gone fallow, with nary an egg and cream to be found (I promise I was born in the 1980s), I still loved December Lucky lawyers mostly for Christmas. Lawyers, or should I say most But now, even while I have a grown-up Christmas lawyers, are lucky when it comes where I submit to proper grown-up drinks over the to December zoom outs: most of us Appletise of my youth, December delights me for another get a decent break over Christmas. reason: I get to do an annual zoom out. And the benefit of that is not just the I may love nothing more than zooming out. Taking holiday itself; it’s knowing that most stock. Seeing big pictures. Joining dots. Reflecting. And I may love of the other lawyers are also on holi- altering course. I love to calibrate my days against the nothing more day, and no-one is wondering where trajectory of my life, looking to see what needs attention. than zooming you are or why you haven’t sent a In this way I am extremely cool. out. Taking draft of something somewhere. I stock. Seeing know there are exceptions to this Relaxed brains big pictures. by necessity, especially in the family Part of the joy of zooming out in December/January is Joining dots. and criminal jurisdictions, but I am that brains do their most fun zoom outs when they’re Reflecting. glad at least that, as a profession, relaxed; by the very fact that a zoom out is creeping in, And altering we can mostly agree to stop for a you can probably be sure that you’re feeling rested and course. I love little while. enjoying yourself. I know you can be forced to zoom out to calibrate my I’m pleased because taking a by terrible and sudden life events too, but terrible and days against the weeks-long break is a particularly sudden is not the timbre of a December zoom out. No, trajectory of my important thing for lawyers to do. a December zoom out speaks in the language of time, life, looking to Stress is so much a part of a lawyer’s and space, and late lunches, and being near water, and see what needs job that it seems often to be the job. reading a book about bees, and looking at a tree, and attention. (“Oh, what do you do?” “I experience

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Those can be fun, in a shame-inducing, self-punishment kind of way. This isn’t even necessarily about goals, which can take on a dictatorial momentum of their own. This is about a sense of things. This is about taking in everything there is to take in. Thinking about where you are, where you’ve come from, where you’re going. Thinking about the things you thought you might do with your life, and whether you still want to do them, and what that might look like. Thinking about things you don’t like and how you might lead change about them. Thinking about things you do like and really, deeply, savouring them. In the course of zooming out in my own life I have learned many things. Once I learned that I needed a lot more help with my mental health. Once I learned I needed to change jobs, urgently. More than once I learned I needed to break up with someone. Several times I have seen the scale of good things in my life, and felt anxiety at my incapacity to feel them properly (the key is to start small, and accept that you’ll never be done). You can, of course, zoom out any time chronic stress for 49 weeks and then they you like. But I like the post-Christmas zoom give me money.”) out the best. I like it because, in the south- Brains that are under stress are nearly ern hemisphere at least, it’s a bit like the incapable of zooming out. Chronic stress whole world is also zooming out. Taking takes a while to recede, so the risk of a deep breath before the next year starts spending your working life as a lawyer in earnest. Like we’re all taking a pause without regular, complete, breaks, is that on the riverbank, before we link arms and you can spend your whole life zoomed jump right back into the stream. It feels in. The immediate, urgent, thing, requires renewing and collective. immediate, urgent attention, always. So let me raise a glass to you, New Living this way for long periods means Zealand lawyers. I wish you any number of you can go quite far down roads you didn’t lovely Christmas moments this year – not mean to, carried there by the momentum least that you encounter the Mackintosh of life’s conveyor belts. The post-Christmas Chronic stress of your choosing – and I wish us all an zoom out gives you a chance to check you takes a while to even more beautiful post-Christmas zoom still want to be on this conveyor belt. It recede, so the out. ▪ allows room to consider the promise of risk of spending belts conveying in different directions, or your working Katie Cowan  katie@symphonylaw. even, indeed, to step away from the idea life as a lawyer co.nz is a former lawyer. She is now of conveyor belts altogether, to try out a without regular, director of Symphony Law, a consult- staircase, or a sailboat, or even a hot air complete, ing practice for lawyers. Kate is advice balloon. breaks, is that columnist for LexisNexis NZ’s Learn you can spend Law Life platform and hosts The New A sense of things your whole life Lawyer podcast which can be found at This isn’t about New Year’s resolutions. zoomed in.  thenewlawer.co.nz

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Reflections on the justice system

Page 78 – Chief District Court Judge Jan-Marie Doogue on diversity in the Judiciary. Page 80 – Outgoing Secretary for Justice Andrew Bridgeman reflects on his seven years in the role. Page 84 – Alcohol and Other Drug Treatment Courts transforming lives. Page 87 – Te Pae Oranga: a partnership between iwi, community organisations and the justice sector. Page 90 – Time for evolution, not revolution in the family justice sector says Keri Morris. Page 92 – The Criminal Cases Review Commission

77 THE JUSTICE SYSTEM December 2018 · LAWTALK 924

THE JUSTICE SYSTEM Diversity central to public confidence in the court

BY JUDGE JAN-MARIE DOOGUE

Improving diversity among judges is vital if, as a people’s court, the District Court is to remain relevant to the diverse communities it serves, explains Chief District Court Judge Jan-Marie Doogue.

Judicial retirements soon The criminal justice system has been The District Court bench is entering a stage a topic of intense debate in 2018. of renewal in coming months, with some The discussion, brain storming and at 14 judges due to retire before the end of career experiences; mentoring they times soul searching have occupied a lot of next year. received while in practice; barriers they minds and media space, which is welcome. More than ever before, future recruit- faced in getting to the bench; motivations There is plenty to improve on and, it seems, ment will be attuned to the need for both to become a judge; views about the judicial a will to do so. gender and ethnic diversity. appointment process; and level of support There has been considerable debate However, part of the challenge is encour- received once appointed. too about the future of the Family Court aging aspirants to not be backward about Certain questions were modified to cap- which is the second biggest jurisdiction coming forward. ture the particular experiences of judges of the District Court. It forms part of the Long gone are the days of judges being from diverse communities (in the District civil jurisdiction which accounts for more appointed in an opaque and vaguely mys- Court, 18 of all our judges identify as Māori, than a third of the District Court caseload. terious process that essentially involved three as Pasifika and two as Indian). For me, the debate has highlighted the being tapped on the shoulder. When it came to applying to be a judge, richness of the District Court jurisdiction Suitably qualified lawyers who think the single biggest barrier that made the which makes it well placed – if not entirely they might make a good judge can apply for women surveyed hesitant was confidence resourced – to identify underlying causes appointment through a robust and inde- in their own ability; 43% who indicated of offending and family breakdown, and pendent selection process, not dissimilar they faced barriers singled out self-efface- find innovative solutions. to those used in many other senior gov- ment as being the most significant. District Court judges can, and do make ernment appointments, save for the input For Māori, and especially Māori women, a difference. The role is demanding, but and final decision of the Attorney-General. this is a significant factor given common despite the many frustrations, the potential Yet I fear that many good candidates are observance of the tikanga Māori value to deliver transformative justice makes it unnecessarily put off. expressed in the whakatauki, kāore te uniquely fulfilling. As Head of Bench of New Zealand’s larg- kumara e kōrero ana mo tōna ake reka However, as a people’s court, integral to est court, the continuing under-representa- – the kumara does not speak of its own achieving its potential for the community tion of women and diverse communities sweetness. is having diversity on the bench. This will in both the legal profession generally, and Another noteworthy barrier cited in become increasingly important as New particularly on our benches worries me. the survey was family obligations which Zealand’s makeup becomes more diverse It is why earlier this year I surveyed all were a consideration for 40% of the women because, to have legitimacy and maintain women District Court judges about their judges surveyed. public confidence, a court must reflect the journey to becoming a judge. There was a communities it serves. 98% response rate among the 50 judges Discrimination People must feel the judiciary exists to surveyed – representing nearly a third of Alarmingly, 25% indicated that women serve all of society, not simply one section the total District Court bench. and people from diverse communities of it. They were asked about their personal may hesitate to apply for judicial office

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because of the discrimination they believe is not promoted as a realistic career option. they may face. But progress will also require the legal profession to think afresh Having been part of the judicial appoint- about the option of taking the path toward a judicial career. ment process for some ten years now, I Modern judging in my court is quite a different proposition to do not doubt its fairness. However, how the aloof and rarified days focused narrowly on the letter of the it is perceived by lawyers is pivotal, and law and observing so-called gentlemen’s hours. the fact that one quarter of our women I would encourage those in the legal profession wondering if judges believe it could be deterring some the judicial life is for them to not simply wonder about it. people from applying for judicial positions is worrying to say the least. Learn about the work done by judges There were other concerning results from Take active steps to learn about the work of a modern District the survey: Court judge and encourage your colleagues to join you. • More than half indicated that they had Perhaps find the time to sit in the back of a courtroom and note experienced obstacles to getting to a posi- the wide variety of skills required – from managing the hectic, tion where they could be considered for high-volume list and arrest courts, to the assiduously thorough and judicial appointment. Of these judges, just methodical sentencing sessions, and to the procedural prowess under 40% indicated that they had expe- and communication skills required of a jury trial judge. rienced some form of discrimination in The array of Family Court judgments now available online attest their career, be it gender, cultural or other. to the compassion and insight required to manage the complex • Universities fail to promote judicial nature of those cases where children’s best interests and welfare office as a viable career option, with are so often at the heart of proceedings. 96% saying a judicial career was never Read the future-focused decisions made in the Youth Court, a presented to them as being a realistic forum the Principal Youth Court Judge John Walker describes as career option. And all indicated that they a place of great hope. received no guidance on the appropriate Also consider the wide range of judicially led innovations in the path to take for a judicial career. District Court. From the Alcohol and Other Drug Treatment Court, to • Once in legal practice, nearly half said the courts for the homeless, and marae-based Rangatahi Courts and that they did not receive, or were not the Pasifika Courts within the Youth Court, the District Court provides provided with the opportunity to receive, wide scope for judges to work with families and communities to strategic support aimed at advancing take a holistic solutions-focused approach to administering justice. their careers. None of this is at the expense of judges needing to have a first- • Only 13% indicated that they received rate understanding of the law and an unswerving commitment strategic support which included sup- to interpret and apply it impartially and without fear or favour. port to apply for leadership roles in However, the changing nature of the judicial role, as more often professional bodies or committees. judges work closely with communities and social service agencies • Of those who indicated that they to deliver transformational justice, underscores the need for the received some support, most indicated it bench to be more inclusive of women and diverse communities. was in the form of encouragement only, Apart from anything else, women judges and judges from diverse or that it came from people outside of communities are important role models for people from similar their place of work. backgrounds. They can inspire law students and practitioners alike What makes these results all the more dis- to see judicial office as an achievable goal, and not one exclusive heartening is that things have not changed. to a particular section of society. Ten years ago, I undertook a similar survey Women have formed an integral part of the legal profession of women judges on behalf of my prede- since the 1980s, and have been outnumbering men in graduations cessor Chief Judge Russell Johnson. The from law schools and admissions to the Bar since 2000. results were much the same. In terms of ethnic diversity, appointments to judicial office are not keeping pace with rapid change, especially considering official Improving diversity forecasts showing ethnic diversity in Aotearoa will be exponentially The latest results have provided extra greater in 20 years’ time. impetus to drive even harder for improved The Māori population is projected to surpass 1 million in the diversity on the District Court bench. mid-2030s; the combined Asian-Indian population is projected This year, the board of senior judges who to exceed Māori by the early 2020s. By 2038, Pasifika people will advise me has held two hui on finding account for more than 10% of the population. practical measures to address the issue Fostering diversity is, therefore, vital if the District Court is to and to ensure honouring diversity is about have democratic legitimacy and remain relevant and in touch. more than fine words. We intend, amongst Greater diversity will help equip the court to deliver justice other actions, to engage with universities meaningfully, effectively and with dignity. to better understand why a judicial career And that is only fair. ▪

79 THE JUSTICE SYSTEM December 2018 · LAWTALK 924

THE JUSTICE SYSTEM Thoughts from the departing Secretary for Justice

BY GEOFF ADLAM

Andrew Bridgman has been Secretary for Justice and Chief Executive of the Ministry of Justice since 2011. He will leave this role on 31 January 2019 to move to the Ministry of Defence as Secretary of Defence and Chief Executive (from 1 July 2019). LawTalk talked to Mr Bridgman about his time as the head of the agency which leads our justice system.

As Secretary for Justice, what are the So you’ve got a large bandwidth of functions which key issues you are facing today? means a huge variety of people you employ to carry Probably the most public issue is around the reforms to out those functions – people ranging from judges’ clerks the criminal justice system. And that’s around safety, right through to bailiffs, to policy analysts to financial it’s around how people are held accountable and it’s analysts. And the challenge – I mean it in a positive, around how effective the institutions are at preventing rewarding sense – is to bring us all together with a crime – but also rehabilitating people that go into the common purpose. There are lots of different functions, prison system so that they don’t offend going forward lots of different people, lots of different backgrounds, and they become productive members of the community. but what unifies us is that we all provide justice services Another area that has consumed a lot of my time and we’re here for the people of New Zealand who need is the court system. The issue has been how do you those services. And that, to me, is a very energising, ensure that the court system is fit for purpose going positive challenge. into the future, how do you ensure that its integrity is retained with all of the pressures that it has and how How big a problem for the ministry is do you ensure it responds to the changing environment overcoming some of the barriers to and the changing demands. It’s a system that relies on justice which people encounter? public confidence and therefore is a system that the I think access to justice always deserves a big conver- public need to see themselves in; they need to have an sation. Because justice is a foundation of our society, affinity with it. access to justice is critical because without it you don’t have a meaningful justice system. But I think there are As Chief Executive of the Ministry of Justice, many limbs to access to justice and we really need to what are the biggest issues in front of you? dissect that. It’s a great department. I call it a justice conglomerate – Access to justice is often looked at through the lens we have a number of different roles and functions from of money. That’s one part of it, and an important part. supporting the courts to supporting specialist courts But we’ve also got to be very honest about what the like Coroners, Environment Courts, Treaty Settlements. money equation is. It’s not, as a lot of people would We picked up the portfolio of Crown/Māori relations, like to purport, that court fees or lack of legal aid are an we’ve got the Public Defence Service which is the largest impediment to access to justice. They contribute to it, criminal law firm in New Zealand, we have policy and but there are a lot of other things that are impediments. we also lead the justice sector in terms of co-ordination. Lawyers’ fees, for instance, are the biggest contribution

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to the cost of cases. So, you’ve got legal aid on the one hand but even people that have good salaries still may not be able to afford a lawyer. I think that’s a real burning question for the legal profession. You’ve got understandability. To what extent is the legal and the court system understandable? Is the language we use understandable? That’s an access to justice issue because if people can’t understand the language we’re using, they can’t understand the process. And they’re not going to have an affinity with it and they’re not necessarily going to use it. Timing is a big issue. We’ve found through our data that’s an impediment to access to justice as often people can give up because things take too long. If they give up, they’re not getting access to justice and they’re giving up in some instances because they’ve turned up and the case isn’t going to go ahead or it’s taking too long in the system. There are many, many tentacles in the concept of access to justice. I think we need to look at all of them to really understand the impediments to the ordinary person to enter and to go through the justice system. Money’s part of it, but it’s certainly not all of it.

And how much of the ministry’s role is it to own that and take it forward? I think the ministry does have a role in trying to bring together a wider conversation on things like access to justice and on how the system works to get it. I think the New Zealand court system has some outstanding strengths in terms of the compe- tency of the institutions that are involved and the professionals. So when you look at the judiciary, when you look at the police force, when you look at the Bar, when you look at the corrections service, all

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of these institutions involved in the we do to solve it’? court system I think are world class. Rather than running a system on anecdote, which we Court buildings We all have our own specific roles historically have done – which is a bit ironic given the and courtrooms and a lot of these roles are enveloped business we’re in – it is running it based on evidence. have a certain in the concept of independence in And the other thing is just being a lot more up for a presence – they decision-making, which is really neutral conversation where we all as the players in a almost have a important. But I think where we system aren’t looking at each other in an accusatory certain brand – need to do a lot of work is around fashion, but rather asking how collectively we make and to maintain our interdependence. For the system the system more effective. that is quite to work more, we need to focus expensive. A lot more on our interdependence in That certainly seems to be a theme of what of them are very going forward. It’s collaboration you’ve been saying. You’ve got the evidence, old buildings, that will make this a much more but how do you actually use that to get they’re quite effective system; it’s knowing how everybody to cooperate and move forward. antiquated and our decisions affect other parties in There was a very good conversation at the August crim- they’re very the system. inal justice summit and in the future we could look at ornate. something like that for the court system. I think that What are the ways of would be highly desirable. progressing that? At another level, in a number of areas, we have a local and I don’t pass a value on AI versus We’ve been doing a lot of work courts committee where our staff meet with police and sitting down with a lawyer, I just on data and through that we can lawyers and practitioners to discuss the data that we get simply say as a matter of fact that see how our decisions affect other about the effective functioning of the courts, to work out it will be a big disruptive influence people in the system and ultimately how can this can be used more effectively. I think that and if I was a lawyer I’d be thinking the people that are here for the type of engagement will make a really big difference to what does that mean for me? system. Data doesn’t solve all of the the court system. problems, but it does show you, for And what about our instance, that cases go through in What would you like to tell the legal courthouses? Are they Dunedin a lot more quickly than profession after your seven-plus years as going to stay fit for they do in Manukau – and while Secretary for Justice and Chief Executive? purpose as things change? there are size differences, there is I think they do a great job. There are a lot of lawyers My personal reflection – I stress no fundamental reason why that that spend a lot of time working extremely hard for that this is a personal reflection – should be the case. Data shows us their clients and in doing that they pay a great service is that at times there is a tension the big roadblocks to cases being to the justice system. They are, in many cases, what I’d between what is fit for purpose in dealt with more efficiently and call the face of justice so justice is not just a theoretical a modern age and the history and more effectively, and the biggest concept, because many people only understand and see aura around court buildings. Court roadblock is adjournments. It shows justice in the operators of the system, be that judges or buildings and courtrooms have a us where those adjournments are lawyers or registry staff. How all of us behave affects certain presence – they almost have coming from and that leads to the the lay-person’s view of the justice system. a certain brand – and to maintain question of ‘why is that happening’ I think there are challenges going forward, and I think that is quite expensive. A lot of them and, more importantly, ‘what can these are around how we work more collaboratively. are very old buildings, they’re quite There is a high percentage of cases, for instance, that are antiquated and they’re very ornate. adjourned within a week of the hearing. Some within a Going forward, we really have There is a high day of the hearing. That may work for a certain reason, to ask ourselves, does the average percentage but it doesn’t work for the system as a whole. It is highly person in the street really have an of cases, for inefficient and ineffective. You wouldn’t cancel surgery affinity with that type of structure instance, that are theatres at the rate we cancel court cases because things and ambiance? I personally don’t adjourned within are decided at the last minute. It’s ultimately a massive think they do, but that’s the conver- a week of the waste of public time and public money. sation that needs to be had. I think hearing. Some My observation – and that is all it is – would be that going forward that our buildings within a day I think legal advice is very costly. I question whether should be much more modern of the hearing. that’s sustainable. Its sustainability won’t be determined and fit for purpose today. So, when That may work by whether lawyers think it’s justified or not, it’ll be people walk into them they have an for a certain determined by whether people think that they’re actually affinity with them because they see reason, but it going to pay for it. it as part of a modern world. And doesn’t work for Then there’s artificial intelligence. I think that will be that builds trust, but it also builds the system as a a disrupting influence on the legal profession. I don’t a level of comfort, that means they whole. say that because I think it should disrupt the profession, contribute to the court hearing or

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process in a lot more positive energetic way than being cases that don’t and timeliness to me is a benchmark in an environment that they find totally foreign and in how humane the system is. strange, which just closes people down. They are lovely buildings and I’m not saying we get rid You’ve set a goal of resolving all of them. I’m saying that for what we need to use them serious harm cases within 12 months. for, we could do a lot better for the public and also for the Are we going to see more of this goal- stakeholders by going to buildings that are more modern. setting and committing to targets? You wouldn’t want to be arriving for your surgery in an Absolutely. It’s really important. I think it’s important to ornate antiquated facility built in the 1920s – so why have the goal because then that drives certain behaviours would justice be any different? that you want. It drives behaviours about being efficient and effective, it also drives behaviours around what’s Looking back over your time with the stopping you from achieving that goal, therefore under- ministry, what are the achievements standing the system. I think it’s really important around you’d like to remember? the integrity and the legitimacy of the system that we First is working with a great group of people in the min- work really hard on timeliness. There are things we can’t istry. We’ve got about 3,800 staff with hugely diverse control, like the inflow, but at the end of the day I would backgrounds. They are very energetic and passionate have thought every New Zealander would expect that about justice and that for me has been inspiring. And serious harm cases should be resolved within 12 months. every day when I come to work you’re just dealing with That’s their expectation. And therefore we need to do really interesting people who are dedicated to the cause what we can to achieve that. Now we may not achieve of justice. That, to me, has been one of the most reward- it, but the most important thing is that we’re dedicated ing parts of the job. And I’d extend that to include the to trying to achieve it. I’m passionate about goals; I think stakeholders in the system, the lawyers and the judges, they’re utterly critical. the victims’ advisers, the police, the corrections staff. They’re all people that do a very challenging job, a very You’re going to the Ministry of Defence. purposeful job and they’ve been great to work with. Defence of course has its OP RESPECT The second thing is I’ve been very proud of the way programme focused on workplace culture. we have re-orientated the ministry’s purpose around What’s the Ministry of Justice’s experience making it people-centric. What the ministry’s done is been in workplace culture change? distilled the fact that we’re in a very complex system We’ve done a lot of work around culture and that arose that is steeped in history, but ultimately the reason we’re from some early engagement results we got which were here is for the public of New Zealand that need to access less than desirable. We’ve done a lot of work around justice services. It’s really important to focus on that. We induction, training, and supporting the frontline. There’s all contribute be as it lawyer, judge, police, or corrections always more work to do, but it’s a consciousness of how officer. But we’re not the reason the system is here. We’re do we support all the people that work here. here because people need their disputes resolved, and We rolled out a programme recently which is called it’s only when we singularly focus on that that we can Our Place, Our People, and that’s really all about wanting be guaranteed that whatever we’re doing to improve people to feel that they are welcome and supported in the system, we’re doing the right thing. Because if we the work environment. And that goes beyond the work focus on ourselves, we won’t be doing the right thing. that they do, but it’s if they have personal challenges or The building of the data capability has been a massive struggles that we can support them milestone. It’s been a lot of hard work but I think we’ve during that time. We look at things really helped in our ability to move the court system What the like family violence, suicide and from one that’s talked about anecdotally to one where ministry’s done mental health, and we’re training we have empirical evidence as to how the system is is distilled our managers through that process working and how it isn’t. We’ve got a lot more work the fact that so that they can identify where we to do, but there is some fantastic information in these we’re in a very think that staff have some of these datasets that we’re producing and it’s only through that complex system challenges and then help them in a that you’ll be able to make empirical decisions going that is steeped direction that they can get help in forward because unless you’ve got the data you don’t in history, but those times. We think this is criti- know how things are working. ultimately the cally important. There is a lot more Probably the final thing is our focus on timeliness. I reason we’re to people’s lives than their work life, know at times that it’s been controversial and I know here is for the and the leadership team has been not everyone has agreed with it, but I think we’ve got public of New working to create a workplace that a system that by and large is world class. Where we are Zealand that recognises that, and supports our out of kilter with other systems is our timeliness. There need to access people in their life outside of work are a lot of cases that go through quickly and a lot of justice services. as well. ▪

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THE JUSTICE SYSTEM Alcohol and Other Drug Treatment Courts transforming lives The pilot scheme making a difference

BY NICK BUTCHER through their addiction has led to isolation. clean and sober and have built new The lawyers at Waitakere District Court are led by lives. criminal barrister Bridie Murphy and include Rosie “It’s very motivating for new par- Society tends to offer little Abbott, Kathryn Penrose and Esma Brown. ticipants to see this as something sympathy to drug addicts and alco- The lawyers don’t determine the treatment pathway they can do. ‘Look at my peer sup- holics who commit crime to feed for their clients, but they do advocate their client’s port worker. He or she was where their addiction. After all, many end position, dealing with issues such as bail hearings or I was in prison, not so long ago.’ up on an endless cycle of prison lags dealing with charges they may be facing. They’re now free of active addiction, only to use drugs inside where they The therapeutic court is similar to a United States living a good life back with their learn new ways of committing crime model. The courts have been extensively evaluated family and have a job and purpose,” through hardened career criminals. overseas and are based on evidence-based best practice. says lawyer Kathryn Penrose. But what if addiction was treated It includes restorative justice where recovering addicts “It’s all very well for a lawyer as a health issue and in cases where are able to make amends to their victims during the or judge to talk to a person about a person was assessed as suitable, course of the programme. what they need to do to change that person could avoid another Rosie Abbott had trained to be a prosecutor for the their life but when you have a living prison stint and instead go through police in Alcohol and Other Drug Treatment Courts and and breathing example that shows supervised treatment over a period had attended a training conference. the programme works, it’s highly of 18-20 months to then return to the She didn’t proceed with being part of the prosecution motivating.” community clean and sober, with a and about two years ago joined the defence team. She is support structure in place and a fight- Māori and like many people she was concerned about Lacking the adversarial ing chance of building a better life? the dismal criminal justice statistics showing that over tone of other courts Since 2012 a pilot programme 50% of inmates are Māori. During the morning sessions Judge entitled the Alcohol and Other Drug Lisa Tremewan refers to everyone Treatment Courts has been running The house that uplifts the spirit working in the court as ‘team’ when at the Waitakere and Auckland The Māori name of AODTC is Te Whare Whakapiki she asks how individual people are District Courts. Wairua, which was given to it by Sir Pita Sharples. It doing. The judges, lawyers, police prose- means ‘the house that uplifts the spirit’. Judge Tremewan says all partici- cutors, probation officers, and other For Ms Abbott, the court is a unique opportunity to pants give informed consent to par- support workers are part of a team play a part in helping to change those heart-breaking taking in the inquisitorial approach that takes a holistic approach in statistics for Māori. taken by the court as they know that dealing with defendants. The court incorporates a lot of Māori values and tra- this gives them the best chance to LawTalk met some of the team, ditions. It starts in the morning with a karakia followed succeed at something they have not along with a graduate of the by a waiata that is sung by everyone. been able to achieve themselves. programme. “Defendants, lawyers, judges, registrars, police, The adversarial lawyer goes out treatment providers. It is very different compared to a the window, says barrister Bridie What is the AODTC? traditional court. This court blows those typical ideals Murphy. The AODTC is the last chance saloon out of the water. We end the day with a waiata too,” “How it works is that a defend- for many of the people who enter she says. ant will apply for a position on the it. They’re lost, they’re broken and The court includes peer support workers who are AODTC. Their lawyers will make in many cases they’re unwanted allocated to individual defendants. They’re generally submissions to the court as to why because the hurt they’ve caused people who have been through the prison system, are that person should be accepted. It’s

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very thorough, covering all aspects of the person’s life, ▴ (From left) calls it, to the B-team, meaning their road to freedom recommending as to whether the person would be suita- lawyer Esma just got longer. ble. We then discuss the application as a team,” she says. Brown, Pou “We’re dealing with people from the high end of “If we want our clients to be open and honest, then Oranga addiction. Without testing it would just be a farce. It’s we have to be the same." Matua Rawiri not enough in this situation for people to say they’re not “Sometimes a potential candidate may have been a Pene, lawyer drinking or taking drugs. A peer support worker described previous client of one of us. Another interesting situa- Rose Abbott it as habilitating people, because through this work they’re tion is the lawyer-client privilege relationship. In this being returned to society as people who can function in court forum, we are obliged to be open, upfront and a normal world,” says Rosie Abbott. transparent with regard to what’s going on with our To get a good understanding of the sort of clients clients because that’s what the collaborative approach they’d be dealing with, these lawyers had to undergo requires,” Rosie Abbott says. training, including attending the Cutting Edge addictions It sounds reasonable enough but it should be remem- conference. bered that the people they’re dealing with have backgrounds of well-rehearsed dishonesty. It is this behaviour Understanding the addicts that has enabled them to commit crimes including Kathryn Penrose has been part of the pilot since it breaking and entering, stealing cars and inflicting began and says being able to help her clients meant violence on others to feed their addictions. understanding them first. So how difficult is it for a person with little concept “I’d typically meet a client at court and I could see of honesty to practise it? the person had alcohol and drug addiction issues. But “It’s probably easier for people to stay within the I didn’t really understand how they struggled with the prison system environment than it is to be in the drug concept of going into a treatment programme. I didn’t court, because that’s what they’re used to. Everything have that lived experience so I visited a range of treatment they learned in how to survive in prison is completely providers in Auckland with a probation officer. I also the opposite of how we want them to act in this court. attended 12-step alcoholics anonymous and narcotics The number one concept we push is to be HOT, that is anonymous meetings. In addition I did a lot of reading honest, open and transparent,” Kathryn Penrose says. about addiction,” she says. She says the lawyers understand how hard it is for The lawyers say their work has opened their eyes to many of them not to take drugs or drink alcohol. The potential in people who have been severely damaged participants have to wear SCRAM (secure continuous by drug addiction. remote alcohol monitoring) bracelets and have to submit regular urine tests for drug screening. Positive tests result Boarding a waka in a person going from the A-team as Judge Tremewan Rosie Abbott describes the scene when participants first

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come into the court as boarding a waka and the court rowing trouble as her, who told Sarah that she with them. was going through what she referred to “There comes a point though when they take the paddle up and as the drug court and had been granted we start to let go of the paddle as they progress in their recovery. bail to do so. Many participants are very reluctant to come in. Some of them Sarah queried her lawyer about this enter just to get bail and run away so you can never tell who will court. be a success,” she says. “He said ‘I’ve been trying to tell you There is no quick fix and sometimes participants relapse several about this for years’. I just wasn’t listening,” times before finally grasping a life without hard drugs and alcohol. she says. However, there are many others who transition quicker. During her bail hearing court appear- “It’s challenging for us when they pick up and use drugs again ance, her lawyer told the judge that her especially after having long stretches of clean time. But then that’s offending was fuelled by drug use and from the nature of addiction,” says lawyer Esma Brown. there she was referred to the AODTC. “Re-offending when they are supposedly doing well is also hard to deal with. But being in this court is about breaking that Drug court not the softer option behaviour, and coping with triggers. I guess the biggest challenge “If I’d not been bailed to participate within for me is when they can’t see the potential in themselves, when the AODTC, I would have just done the they are struggling and lose hope. However, we have a saying same all over again. The drug court was so that ’we hold the hope for you until you can’.” hard. It was like being a child again and in Ms Brown has been with the pilot since it started in 2012. this case I had all kinds of parents telling She says there are many success stories that make their work me what to do,” Sarah says. worthwhile. Some days she felt as if her only moti- “I had one client who, while in custody, had lost her children, vation was to avoid going back to jail and the trust of her parents and family and she was looking at a other times she felt like jail might be a lengthy prison sentence. Her life had spiralled out of control and better option. the revolving door that brought her continually before the court “I was existing in an environment had remained open for many years. She’d lost all hope. where I couldn’t do whatever I wanted “But, through her journey she was able to put her life back to do. There were rules and consequences together. She graduated and in time her children were returned and, other than jail, I’d never experienced to her, and she was able to make peace with her father before he consequences as a result of my behaviour. passed away. She still contacts me from time to time and she’s “I was a tiny person in a huge world, now studying in the field of social work.” sober,” she says. The lawyers say their work is not about making money. It’s about She couldn’t hold down a job during this passion and compassion and making a contribution to society. rehabilitation period which included enter- Ms Penrose used to be a commercial lawyer and could earn so ing a rehab facility and submitting to regular much more doing that work. random drug and alcohol tests, attending meetings at Narcotics Anonymous, and A graduate reflects on then and now making amends or restitution to people Sarah (not her real name) is a graduate – as it’s described – of affected by her previous lifestyle. the Alcohol and Other Drug Treatment Courts. She is 32 years But she got there, and “graduated” which old. Her last run-in with the police was in December 2016 after was a very significant milestone in her about five years of criminal offending to support her drug habit ongoing recovery journey. of injecting one gram of meth a day into her veins combined Sarah intends to return to study with with another drug called fantasy, which is otherwise known as a particular focus on addiction services. gamma-hydroxybutyric acid. “I was a public nuisance. I burgled homes, stole cars, and com- The court’s six-year birthday mitted fraud. I have 42 convictions. I never thought I had a problem During LawTalk’s visit to the Alcohol and with drugs. I thought everyone else was the problem. I ended up at Other Drug Treatment Courts, the court Wiri Prison in South Auckland and for the first time I took a long and celebrated six years in service with a tra- hard look at myself. It took me two months just to put a sentence ditional birthday cake. It’s been closer to together I was so damaged by drug use,” she says. 10 though, as it took several years to get When reality set in, Sarah knew she faced a dismal future in the pilot up and running. prison. She was offered drugs many times but refused them. She While Judge Tremewan and her team of was desperately clinging to the hope of a new beginning but had lawyers, the police prosecutor, Pou Oranga no idea how that might look. tikanga cultural adviser, Matua Rawiri Pene, “I knew this but was still trying to manipulate my way out of peer support and other social or rehab work- this situation,” she says. ers were proud of their work to date, there It was in prison that she met someone who was in as much was also a sense of frustration in the air.

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THE JUSTICE SYSTEM What more did they have to do to prove the value of this court? Questions such as whether this court model has a future still need to be answered. There has been an indication Te Pae Oranga and desire from Justice Minister Andrew Little to roll this court model out around New Zealand, but nothing is certain yet. BY ROSALIE The Chief District Court Judge, Jan-Marie CHAMBERLAIN Doogue, says the pilot scheme has been a success. “The two judges leading the AODT court, Lisa Tremewan and Ema Aitken, have been extraordinarily dedicated to taking a solutions-focused approach to delivering justice. Te Pae Oranga is the new name for Iwi Community Panels, Their work continues to impress and inspire which were launched in 2010 to reduce the load on the court their judicial colleagues.” system and prevent minor offending leading to serious crime and “While the resourcing of any future imprisonment. Te Pae Oranga is a lawful alternative to prosecution expansion of the AODT court is a decision for some low-level offending, run by the Police. Police can refer for others, there are valuable lessons to be people to local panels of community members rather than to drawn from the approach it takes for the the courts. These panels seek to make offenders accountable and rest of the District Court,” she says. address the reasons they offended. “Depending on the outcome of the “With Te Pae Oranga, we focus on putting right the harm done to independent evaluation, the guidance the victim and supporting participants to change their behaviour, it may provide and the response from rather than punishing them,” says Michael McLean, Police National government, I look forward to the District Manager, Māori, Pacific and Ethnic Services. “It’s having a positive Court eventually having the capacity to impact on our communities and the lives of both offenders and apply those lessons in a comprehensive victims.” integrated way, especially in terms of Police work with Māori community organisations to deliver building processes which better include Te Pae Oranga in Auckland City, Waitematā, South Auckland, communities in addressing the underlying Hamilton, Whakatāne, Rotorua, Gisborne, Hastings, Lower Hutt, drivers of an individual’s offending.” Nelson, Christchurch and Invercargill. During my visit, the 171st graduate of the court programme was celebrated. Community-based support Jack (not his real name) was another Te Pae Oranga involves a partnership between iwi, community person who would otherwise have been organisations and the justice sector and: rotting in prison. He had been sober 20 • Recognises the importance of iwi involvement in dealing with months and was planning to work as a crime, and incorporates Māori justice practices and philosophies delivery driver. Previously he was a gang into the response to crime; member. He was sentenced to 20 months • Signifies resolution and facilitation, and the importance of supervision and assessed as at a low risk supporting the wellbeing of the participant (the offender), the of reoffending as long as he continues to victim and any whānau/other support people who attend; and stay involved in recovery programmes • Is based on evidence that a community-based response to outside the court. low-level offending can reduce reoffending, by promoting “Some days when I’m not feeling that behaviour change and avoiding the progression of offenders great, being a graduate of the pilot pro- into the criminal justice system. gramme is what keeps me going. I want While Te Pae Oranga follows Māori cultural practice and protocol, to be a statistic that helps other people. I it is available to participants of any ethnicity. cannot go back to my old life,” Sarah says. ▪ “Te Pae Oranga panels are made up of community people who work together to ensure that low-level offenders are held From 24-25 January the Aotearoa accountable,” says Mr McLean. “The panels focus on upskilling AODTC Conference 2019 is being held participants, getting them into long-term employment, and looking in Auckland. It will discuss whether the at ways to change their mind-sets and re-engage them back into current model fulfils its therapeutic communities.” and restorative potential and how it might be further shaped going forward. Referral criteria  www.aodtc-conference2019.org.nz Te Pae Oranga is open to participants if they’re aged 17 years and over; have committed a low-level offence; and admit responsibility

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for that offence. The most common offences support they need to address the under- referred to Te Pae Oranga are disorder, lying causes of offending. shoplifting, wilful damage and careless driving. Victim role “When Police refer someone to Te Pae Police will contact the victim, if there is Oranga, Police are using their discretion one, and prepare a victim impact state- under common law not to prosecute, in a ment (or Victim Support will do this). Police similar way to deciding to issue a warning,” will ask the victim if they consent to be says Mr McLean. contacted by a Te Pae Oranga provider. “To make a referral, Police must establish Panels welcome victims to be part of the there is evidential sufficiency to charge, process and: and consider whether or not it’s in the • Attend Te Pae Oranga meetings and have public interest to prosecute. Police must their say on how the crime has affected consider the person’s prior offending, them; current offending circumstances and • Bring whānau/other support people victim opinions. These are all laid out in with them; the Solicitor-General’s guidelines.” • Explore how the participant can make Full referral criteria: up for the harm caused. • 17 years and over, A victim doesn’t decide whether or not • All ethnicities, an offender is referred to Te Pae Oranga. • Only one offence involved, penalty is six months' imprisonment or less, but How it works not: family violence or meth related The Te Pae Oranga process includes a offending, driving charge with man- huinga o mua (pre-panel meeting), hui datory disqualification, firearm charge, matua (panel meeting) and huinga o muri second-hand dealer offences, (follow up). • Must not be on active charges with a penalty of more than six months' Huinga o mua imprisonment, The purpose of the huinga o mua is to • Admits responsibility, prepare everyone for the hui matua. It • Agrees to take part. involves a face-to-face meeting between Police often use referrals to Te Pae Oranga the participant and the kaikawe kōrero for: (facilitator). If there’s a victim, the kaikawe • Repeat offenders for low-level offences, kōrero also meets separately with them. where offending patterns would benefit The kaikawe korero: from addressing underlying causes of • Discusses the offence, the impact of the offending behaviours (for example, offence on the victim and what the needs disengagement from education, drug Instead of of the participant are; and alcohol misuse), or travelling a • Completes a risk assessment, decides • First or second time offenders for low- well-worn path whether to proceed to the hui matua, level offences, where there’s a suggestion to court, which and briefs the māngai o te hāpori (panel that factors underlying the offending can lead to members); behaviour need to be addressed. more serious • If the risk assessment indicates the offending and a referral doesn’t proceed, the kaikawe Participant role possible prison kōrero will notify Police, who can then If referred, the participant (the offender) sentence, Te Pae decide to prosecute. can choose to attend Te Pae Oranga or be Oranga provides processed through the courts. They can: participants Hui matua • Tell their story; with access to The purpose of the hui matua is to agree • Bring whānau/other support people (not local services actions that the participant will take. It’s as lawyers) with them; to address the unlike court as possible and allows plenty • Put things right by completing agreed underlying of time for discussion. This helps the par- actions to make up for the harm done; offending ticipant to look at what’s influencing their • Be connected with the services and behaviour. behaviour to commit crime.

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The participant sits with the kaikawe kōrero and māngai o te found the children places in schools nearer hāpori (panel members) around an oval table. Also present are home and contacted their absent father, the Police observer and any whānau members/support people who agreed to help. (not lawyers). Victims are always invited. “In another case, a participant stole a tray The session opens with a karakia and introductions. The Police of cookies. He didn’t know why – but being observer outlines the summary of facts and the participant and caught was the best thing that could have victim are asked for their versions. happened. He could have been prosecuted, The panel then looks into what’s happening in the participant’s fined and left with problems worsened. life; what led them to carry out the crime; avenues for restoration; Instead, we referred him to Te Pae Oranga how to address the underlying criminal behaviour; and how to at Waiwhetu Marae, Lower Hutt. help them stop re-offending. “The panel discovered that he’d worked The participant agrees to complete certain actions to make up in forestry for 12 years but quit after seeing for the harm caused. These actions are included in an agreement. a workmate killed. He had no benefits, An agreement may include a requirement for an apology to the unresolved trauma and a drug problem. He victim, payment as reparation or some form of community service wanted to work, he said, and get straight. to address the harm. Agreements may also refer the participant He agreed to pay $80 reparation and write to support services to help them to deal with problems that led a letter of apology. The panel referred him to the offence. to drug and trauma counselling and offered Participants usually have six weeks to complete these actions him help to find work and get his driving or risk being charged. licence. They also appointed a whānau ora “Instead of travelling a well-worn path to court, which can navigator to support him as he completed lead to more serious offending and a possible prison sentence, these actions. Te Pae Oranga provides participants with access to local services ‘We’ve had victims say to us that they’re to address the underlying offending behaviour,” says Mr McLean. happy to have the case over and done with – “This can include training or support services like drivers’ licence they’ve had the harm put right much faster training; referral to health, social or budgeting services; or employ- than if it had gone through the courts.” ment opportunities.” Te Pae Oranga is also making a significant contribution to building the capacity and Huinga o muri capability of justice sector organisations to The purpose of the huinga o muri is to support the participant to work with Māori in partnership. It empow- achieve the agreed actions. ers communities to look after their own and • The Te Pae Oranga provider follows up with the participant to lays a solid foundation for the future. support them to achieve the agreed actions; Police are currently updating Te Pae • The provider then reports back to Police; Oranga documentation. Please contact • If the participant completes the agreed actions, they won’t go Police for help or more information, or get to court. If the participant doesn’t, Police will review and decide a copy of the Police Referral Guidelines for on the best option, which may include prosecution. Te Pae Oranga: [email protected] ▪

Changing lives Rosalie Chamberlain is a contractor with Michael McLean says Police have had the New Zealand Police. some real successes with Te Pae Oranga and it is changing lives, with around 80% of people who attended completing their agreed actions. “It’s transforming the experience of justice for thousands of people, by keeping participants out of the court system and a spiral into more serious Providing Professional Indemnity and specialist insurance offending,” he says. “In one case, we found out that the products to the Legal Profession participant involved in a bust-up over a Visit www.justitia.co.nz for further information and application forms $20 debt was raising nine children alone in Or Contact: Mr Ross Meijer, Aon New Zealand extreme poverty. The panel put support in 04-819-4000 place, from food aid to donated furniture. [email protected] The panel also engaged a social worker,

89 THE JUSTICE SYSTEM December 2018 · LAWTALK 924

THE JUSTICE SYSTEM Family justice – time for evolution, not revolution

BY KERI MORRIS

better employ the significant skill base – currently underutilised The review of the 2014 family justice – within the family professionals we have here in New Zealand. reforms is currently underway, and the Independent Panel has much to consider – Successes as befits the importance of the subject and The mediation road to date has been long and winding. It stretches the political attention their deliberations from the introduction of Family Group Conferences in the late will receive. 1980s, regional pilots and the Early Intervention Programme, to Justice Minister Andrew Little has said today’s subsidised Family Dispute Resolution (FDR) mediation that he is concerned that families and service. children are losing out as a result of not While FDR is certainly underused, the statistics in the October receiving “adequate advice and support” 2018 issue of LawTalk show an impressive success rate, averaging during what is a distressing time for chil- at 82.5% of parents reaching agreement on some or all matters dren. While this is an important focus for over the past four years. The mediation service did encounter the panel, it should not be the only focus. teething problems, notably lengthy delays in early 2014, but now This review presents a rare opportunity FDR providers generally make contact with parties within three to consider the broader experience of days of being appointed in FairWay’s FDR service. Children have families. a different sense of time and even a week without seeing a parent Yes, there certainly is room for improve- can have a real impact for a small child. FDR enables parents to ment in the current family justice system. make decisions without delay and within One of the intentions behind the 2014 timeframes that work for their children. changes was to encourage parents to The Family Dispute Resolution service has resolve disputes through out-of-court proven its value. It is working well. It has mechanisms – while also improving access the capacity to assist many more families. to the Family Court in cases where urgent Since the inception of FDR, New attention was required. It appears that one Zealand’s pool of family mediators have of the unintended consequences of remov- honed their craft through continued ing lawyers from the earliest stages of filing training, evaluations and professional applications in the Family Court has been The original supervision, continual improvement and a significant increase in the number of vision of the professional development. We have set the without notice applications filed in court, 2014 reforms has standard high and developed a community leading to long delays for participants and obviously yet to of mediators from an impressive variety of a growing backlog of cases requiring the come to fruition. backgrounds who meet this mark. There intervention of a judge. But we shouldn’t is a lot of untapped potential here. Given The original vision of the 2014 reforms lose sight of the the current backlog issues in the Family has obviously yet to come to fruition. But benefit of the Court, many lawyers may wish to consider we shouldn’t lose sight of the benefit of the out-of-court referring any of their current cases experi- out-of-court mechanisms, while we look to mechanisms, encing long delays to FDR, especially now improve the in-court operation. Now is the while we look there is the ability to have a representative time for evolution rather than revolution. to improve for the child attend mediation as part of We should build from the successes and the in-court the 12-hour FDR allocation. failures. We need to look at ways we can operation. Good things take time. We are just

90 LAWTALK 924 · December 2018 THE JUSTICE SYSTEM

really beginning to understand the two households, often while their total confidentiality and is more benefits for FDR. We know that the relationship property issues are cost-efficient than going to court. downstream costs of not resolving being worked through. Parents are Just like in the Family Court, at a dispute quickly can have signifi- also often busy managing a variety their own cost parents can include cantly adverse ongoing effects for of commitments at home and in the lawyers in the process, including children and for parents. The benefit workplace. Removing the burden of appointing an accredited lawyer of FDR is that parents are guided to travel, parking and childcare costs for child to represent the child’s reach agreement about their chil- would really make a difference for voice, and specialist reports can be dren at an early stage of the dispute. many parents. evaluated as expert evidence. However, we need to make sure While family law arbitration is not Failures that the online option is still engag- yet common in New Zealand, it is The 2014 reforms, which prevented ing, interactive and led by experi- commonly used to privately resolve parents from having the assistance enced facilitators. Simply watching care of children and relationship of lawyers at a time when they need a video on their own will provide property issues in some overseas good quality legal advice and sup- only limited benefit for parents. The jurisdictions, notably Scotland and port, have had consequences. This intrinsic value in these programmes England. shift has hindered both the in-court is in the discussion that occurs, We already have a small pool of and out-of-court systems. Family so the idea of a live webinar or experienced family law arbitrators separation can be extremely stress- video conferencing option should in New Zealand, including retired ful, and there can be any number of be explored. Yes, online mediums judges, Queen’s Counsel and AMINZ serious issues leading to the separa- can present challenges, but these Fellows. Provision of a funded arbi- tion. Through this change, parents challenges can be mitigated. tration service could be the longer- need to maintain their children’s Online services would also make term solution available to separated lives and protect them from some of a difference for parents who cannot families. the consequences of separation. This attend in person, for example par- Family law arbitration could also is a time when quality legal advice ents in prison, or parents living be an excellent option for cases and legal representation should overseas. While these parents may where the parties have been unable be available. People cannot easily not be present in the day-to-day care to reach agreement at FDR. This make informed decisions simply of children, contact arrangements avenue would support the intent from reading information online. and parenting choices involving of the 2014 reforms by enabling They need conversations and quality them remain. Through online ser- more families to reach agreement client-centred work with someone vices, we can open up access to out-of-court, while also freeing up who will ask the right questions to support services, which would have the court to focus on the families elicit the information required. an enormous benefit for both their who need urgent assistance. Ideally, more funding, training children and wider society. Cases involving family violence or and support should be available for care and protection concerns should family lawyers to assist their clients What’s missing? stay with the courts rather than be to reach agreement both in court Could family law arbitration be a arbitrated. and through FDR. The removal of new avenue in our family justice access to lawyers has caused unac- system? Some would certainly say so. Conclusion ceptable delays for children. It has Unlike mediation, arbitration Many of us working within the significantly increased the workload is a more formal process deter- family justice system are keenly of court registry staff and judges. mined by the Arbitration Act 1996. awaiting the Independent Panel’s This is an access to justice issue that Arbitration could be a good option report this May. I’m sure this report now needs urgent attention. for many New Zealand parents will provide much food for thought unable to mutually agree but who for both the minister and all profes- Room for improvement want to have more control over sionals working within the family Questions in the consultation paper the process. These families can justice system. This review is a real suggest the Independent Panel is also benefit from having an independ- opportunity for evolution and one considering the availability of online ent decision-maker. By engaging in which could result in substantial services, such as online Parenting arbitration, parents can choose who improvements for separated fam- Through Separation courses. I can will make the decision and within ilies. We need to get it right. ▪ see advantages in having videocon- what timeframe. Arbitrations can ference or live webinar options avail- be completed far more quickly Keri Morris  fdr@ able. For many parents, resources than court hearings, with many fairwayresolution.com is Client can be stretched at the time of a cases being able to be determined Director of FairWay Resolution separation as they work through new within just a few weeks – or even Ltd’s Family Dispute Resolution living arrangements and establish days. Arbitration also provides for Service.

91 ACCESS TO JUSTICE

92 THE JUSTICE SYSTEM

THE JUSTICE SYSTEM

The Criminal Cases Review Commission

BY TRACEY CORMACK

On 27 September 2018 Justice Minister Andrew Little introduced a bill to establish the Criminal Cases Review Commission (CCRC). Its purpose is to review convictions and sentences and decide whether to refer them to the appeal court. The bill will replace the current referral power exercised by the Governor-General under section 406 of the Crimes Act 1961. At present someone who believes they have suffered a miscarriage of justice may apply to the Governor-General for exercise of the Royal prerogative of mercy (RPM). This may be exercised to grant a free pardon or to refer a conviction or sentence back to an appeal court. The Governor-General acts on the formal advice of the Minister of Justice (advised by lawyers in the ministry’s Office of Legal Counsel) when deciding to exercise this power. The RPM will remain in force via the Letters Patent Constituting the Office of the Governor-General of New Zealand, and the bill will enable the Governor-General to transfer applications for the RPM to the commission. It also recognises the Governor-General’s residual prerogative powers, which include the grant of a full pardon. The commission is not therefore a new function in the criminal justice system – it would be a change in who performs the function and how. The commission would not “Miscarriage of Justice” be an advocate for an applicant. Its refers to an unjustified statutory role would require it to conviction, a conviction make a considered legal judgement in breach of the law, or about whether an application has where the total available sufficient merit that an appeal court evidence leaves doubt as should reconsider the conviction or to the adequacy of proof sentence. of guilt. The last pardon in New Zealand — Sir Thomas Thorp, was given to Arthur Allan Thomas in Miscarriages of Justice 1979. He was pardoned by the Prime (Legal Research Minister after spending nine years in Foundation, 2005).

93 THE JUSTICE SYSTEM December 2018 · LAWTALK 924

jail following the murder of Jeanette and Harvey Crewe. Limitations and risks of The pardon followed an application for the RPM and the proposed CCRC was granted on the basis that the police case against The public may not believe that the CCRC is independ- him was not proved beyond reasonable doubt. A Royal ent, which may show in low application numbers. To Commission of Inquiry found that the police planted mitigate this risk the structure of the CCRC should be as evidence that was used to wrongly convict Mr Thomas independent as possible, including educating the public and that he should never have been convicted of the and those in prison about it. murders. Applications may take as long as, or longer to be resolved through the CCRC as under the status quo as Why the commission? investigations are complex and time-consuming. To The Ministry of Justice says the establishment of the mitigate this risk the CCRC will need to be well resourced CCRC is intended to enhance the system by providing and appropriately empowered, for example, empowering a more transparent and effective system. It will be an it with powers to compel information from public and independent body focused on identifying and respond- private bodies. ing to possible miscarriages of justice. In addition to specific individuals who will benefit Commissions in other jurisdictions from the establishment of the CCRC, the government Several jurisdictions have established a CCRC, including and the public will indirectly benefit as it is expected the United Kingdom (England, Wales and Northern that public trust in the criminal justice system will be Ireland), Scotland, and Norway. These models provide enhanced. valuable experience to draw upon in considering the The exercise of the RPM may result in a pardon, design of a CCRC for New Zealand. although this is rare and more frequently a case is referred back to court. United Kingdom The RPM has been exercised to refer a person’s con- A series of cases arising during the 1980s pointing to viction or sentence back to the courts in only around miscarriage of justice and the efficacy of the RPM system 9% of applications. About 170 applications were made led to the establishment of the Royal Commission on for the RPM between January 1995 and September 2018 Criminal Justice (RCCJ) in 1991. The recommendation was – an average of seven to eight a year. The RPM has been that an independent authority be established, primarily exercised 15 times in that period to refer a person’s case due to the Commission’s view that the RPM was incom- back to the appeal courts. patible with constitutional principle, regarding separation There are a number reasons put forward for changing of powers between the courts and the executive. the current process. The RCCJ was set up as an independent body with 14 • Perceived lack of independence: Officials who cur- commissioners and a staff of about 70. The Commission rently produce the advice that informs the Minister of reviews cases after the applicant has exhausted all Justice who oversees the work of the Governor-General, appeal rights, except in exceptional circumstances. Since work within the same system. While possibly just a its establishment in 1997 the Commission has referred perception, this potentially negatively impacts public 652 cases. Of the 642 cases where appeals have been confidence in a system and perhaps may be reflected heard by the courts, 433 appeals have been allowed in an unwillingness to engage with the system. and 196 dismissed. • Timeliness: The officials who review applications are not solely dedicated to that job. Scotland • Resources: The applicants must provide informa- The Scottish CCRC was set up for the same reasons. tion and make out the case for RPM. Well-resourced Before its establishment in 1999 the number of applica- applicants with access to professional assistance are tions to the Secretary of State varied between 30 and 60 advantaged in the current process. Applicants who are per year. In its first year of operation it received 127 cases. not well-resourced and those who do not qualify for Since its establishment the SCCRC has concluded all legal aid may not be able to make out an application. but two of the 2,447 applications received. Of those, • Transparency: The reasons for the Governor-General’s 1,207 were concluded after a full review. Of the 121 cases exercise of RPM are provided to an applicant, but are heard by the High Court, 79 appeals have been allowed not proactively made public. This may contribute to and 42 appeals dismissed. the low number of applications and/or lack of faith in decisions. Norway • Other barriers: Māori and Pacific people make up 60% From its establishment in 2004 until 2017, the Norwegian of the prison population and yet their proportion of CCRC received 2,285 petitions and concluded 2,148 of applications has been estimated at between 11-16%. them. Of these, 279 cases have been reopened and 422 This may have been caused by low visibility of the petitions have been disallowed. There have been 1,128 process, the proof and cost burden, lack of confidence petitions rejected because they could not succeed, while in the criminal justice system and language and cul- the remainder, 319, were rejected without the cases being tural problems. reviewed on their merits.

94 LAWTALK 924 · December 2018 THE JUSTICE SYSTEM

New Zealand viewpoints

Appeal on any point arising in the case. The New Zealand Law Society’s Criminal Law There is nothing In that scenario the Governor-General Committee is considering the bill. The New Zealand about this retains his or her residual discretion to Bar Association supports the establishment of a process that determine the proper response to the CCRC. Both are likely to make a submission to the demands an application after receiving the Court of Justice Select Committee. extra-judicial Appeal’s opinion. Two prominent criminal law commentators were determination by My point is that there is nothing about asked for their views on the current system and the a representative this process that demands an extra-ju- proposed commission. AUT Professor of Law Warren of the Crown. dicial determination by a representative Brookbanks is a member of the Law Society’s Criminal The process of the Crown. The process is, arguably, Law Committee and co-author of Principles of Criminal is, arguably, archaic and cumbersome, and unlikely Law. His comments were given in a personal capacity. archaic and to result in speedy justice. And since its Auckland barrister Marie Dyhrberg QC is a cumbersome, principal concern these days is dealing former chair of the Criminal Law Committee of the and unlikely to with possible miscarriages of justice, that International Bar Association and a former President result in speedy is not, in my view, a task well-suited the of the Criminal Bar Association. justice. office of the Governor- General, even if the work is done by Government lawyers. What do you think of the current Marie Dyhrberg: Lawyers within the ministry under- Royal prerogative process? take a review of applications in relation to convictions Warren Brookbanks: The current process is based on a and sentences at the point appeal rights have been legal procedure that has been part of our law for many exhausted, but when there is a claim there is a miscar- years. The current procedure gives to the Governor- riage of justice that requires a stay or another appeal. General a broad discretion to refer any conviction or The Royal prerogative of mercy is therefore not exer- sentence referred to him or her for the exercise of the cised by an independent body that focuses on whether mercy of the Crown to either the Court of Appeal or the there is a miscarriage of justice that justifies a pardon High Court, depending on the jurisdiction in which the or a return to the Court of Appeal for reconsideration. appeal would normally have arisen. Therefore, there is a perception of a potential conflict of In effect, the prerogative, in a modern context, pro- interest, and that fairness in relation to the enquiries is vides a means of re-opening criminal cases where a in some way compromised by this perception or reality person may have been wrongly convicted or sentenced. of lack of independence. The process in relation to the In such cases the Governor-General, acting on ministe- prerogative is costly, time-consuming, and unwieldy rial advice, is empowered to grant a pardon, reduce a in many respects. sentence, or refer the case back to an appellate court for reconsideration. Traditionally, the Royal Do you support the establishment prerogative of mercy was a power of the of a CCRC? If so why? monarch to grant pardons to convicted Those who Marie Dyhrberg: The CCRC would have more powers and persons. In particular, it permitted the make up the the mandate to undertake independent enquiries, call monarch to withdraw, or to provide CCRC would for more evidence, involve/engage experts – all this can alternatives to the death sentence. There be solely be done on its own motion. This means there is a greater are two aspects of this to consider. focused on enquiry into applications and more independence in The first is that the prerogative, at determining terms of acting in an inquisitorial manner. least in New Zealand, has never been if there Those who make up the CCRC would be solely focused exercised by the monarch directly. In has been a on determining if there has been a miscarriage of justice, New Zealand it has always been exer- miscarriage of again enhancing the independent nature of any enquiry. cised indirectly by her representative, justice, again Also, the CCRC can make enquires into how the the Governor-General. enhancing system works which brings about the miscarriages such Secondly, its modern manifestation the as disclosure practices by the police and Crown, also is primarily a matter of referral to the independent policy considerations and then recommend changes courts, even though there exists a lim- nature of any to avoid further miscarriages. It will act more as a fair ited power of reference to the Court of enquiry. trial regulatory body as well. The power of the CCRC

95 ACCESS TO JUSTICE

to investigate more widely any systemic But it occurs to me that, because of its prosecutors, police, Corrections and so forth. issues within the justice system will be of radical nature, the bill will need cross-party Warren Brookbanks: I personally think major benefit to the practice of criminal support to get though the Parliamentary this is the best option. Throwing more law and better protect accused persons. process. However, I suspect there will not money at agencies that have become dated The CCRC will be able to deal with be a lot of opposition to the proposal so and no longer fit for purpose is a form applications more speedily and efficiently/ that should not be a problem. of ‘ad hocery’ that often results in more effectively. Its working will also be more The next issue is likely to be the choice cost than creating a new, dedicated body. transparent which will enhance the cred- of persons to act as commissioners. There Furthermore, I think a new, professionally ibility of the justice system in the eyes of can be up to seven commissioners, of constituted agency like the CCRC will have the public. which at least one-third must be legally the capacity to be appropriately respon- Also, decisions of the CCRC will be sub- qualified and two-thirds with experience sive to New Zealand’s obligations under ject to judicial review which means any in working in the criminal justice system, international human rights conventions. decisions will be subject to scrutiny in or with other knowledge and expertise terms of those decisions being fair, lawful relevant to the commission’s functions. It Where to next? and impartial. will obviously be important to ensure that The Criminal Cases Review Commission Warren Brookbanks: I do support the the commission is truly representative and Bill had its first reading on 25 October and establishment of a CCRC. The main reason equipped to address the broad legal and has been referred to the Justice Committee, is that I think a new Crown agency, dedi- social complexities that may have given which is due to report by 25 April 2019. cated to resolving miscarriages of justice, rise to a miscarriage of justice. The first reading was passed by 64 with a permanent presence and function, Marie Dyhrberg: No issues – many votes to 55, with the National Party voting is likely to be a more efficient body to have advocated for such a commission against. National’s courts spokesperson handle these petitions. Furthermore, I or body to be established for many years Chris Penk says his party supports the gov- think it is likely, with more defendants to maximise confidence in the criminal ernment’s stated intention of preventing entering the criminal justice system as justice system. This is due to the lack of miscarriages of justice. New Zealand’s population grows and faith in the prerogative system as being “That said, we’d prefer a stronger policy more cases of possible miscarriages of available to defendants. It is seen as rarely emphasis on preventing miscarriages of justice being exposed, that the current used due to this lack of faith, cost, delay justice from occurring in the first instance system will struggle to meet the challenge and enormous amount of work that a and also possible reform of existing struc- and be able to deliver justice in a timely defendant must do to properly advance tures,” he says. manner. It would also mean that New the case where there has been a miscar- “From our perspective, the bill in its cur- Zealand is in line with other jurisdictions riage of justice that needs to be addressed. rent form cannot be supported as there’s which have created similar independent no clear case for how this new body could bodies to investigate possible miscarriages Do you think this is the best solve problems that the government says of justice. Nor would a CCRC override the option, rather than perhaps exist in the current system. For this reason, exercise of Royal prerogative of mercy, applying more funding we voted against the bill at its first reading.” which under the bill to establish the CCRC, to the current system? Mr Penk says as the Regulatory Impact remains unaffected. Marie Dyhrberg: Funding is not the only Statement notes, cases may take just as issue – it is the whole process that is not long to be resolved as is currently the case, What issues, if any, would working – as above. The CCRC will be able or even longer. He says the exceedingly there be in establishing to generally issue recommendations in a low threshold for referring a case back to a commission? general sense and not just for a specific court – simply that doing so would be “in Warren Brookbanks: I don’t know if I am case before it. This must be of enormous the interests of justice” – will invite a litany the best person to answer that question. benefit to all branches – defence counsel, of re-litigation. ▪

96 LAWTALK 924 · December 2018 ACCESS TO JUSTICE

ACCESS TO JUSTICE Update on legal aid

BY GEOFF ADLAM

Gross legal aid payments, Gross legal aid payments have risen to their year to 30 June 2018 highest level in over eight years. The average gross Gross % Total payments Providers % Providers Total Value Value payment made to each provider has also been moving $1 million plus 7 0.6% $9,338,650.52 5.9% up steadily, with an increase of 32% since 2013. In the $500,000 to same time, the number of providers who received a 30 2.5% $20,025,144.60 12.6% $999,999 payment has fallen by 8%. It appears that the main $200,000 to driver of the latest rise in payments are increases in 183 15.2% $54,542,160.67 34.5% $499,999 the criminal legal aid fixed fees. $100,000 to The information released by the Ministry of Justice for 328 27.2% $45,857,526.30 28.9% the year to 30 June 2018 shows that since major changes $199,999 $50,000 to were made to legal aid eligibility and provider status in 277 23.0% $20,887,054.57 13.2% 2010 there has been a steady upward trend in average $99,999 $30,000 to and median provider payments. The median (middle) 105 8.7% $4,107,889.39 2.6% gross payment per provider has increased by 33% over $49,999 the last four years. $10,000 to 170 14.1% $3,151,805.19 2.0% The data shows the gross amount paid to approved $29,999 providers, exclusive of GST. It includes fees claimed on $1 to $9,999 105 8.7% $408,289.02 0.3% behalf of other approved providers, plus disbursements for general office costs, travel costs, and special disbursements – which include fees for agents, expert witnesses, forensic tests, interpreters and special reports. Location Gross legal aid payments, With 44% of New Zealand’s lawyers, year to 30 June Auckland received 31% of total gross Year Payments Providers Average Median payments in the latest year. Rotorua, 2018 $158,318,520.26 1205 $131,384.66 $90,497.00 Whangārei, Lower Hutt, Palmerston 2017 $143,379,904.64 1193 $120,184.33 $83,152.80 North and Gisborne among the main 2016 $134,759,778.10 1210 $111,371.72 $73,528.42 centres all received a proportion of 2015 $130,215,953.30 1224 $106,385.58 $68,147.22 total gross payments above their 2014 $124,580.223.80 1240 $100,467.92 $63,064.61 proportion of lawyers. 2013 $130,258,884.90 1311 $99,358.42 $63,132.73 2012 $148,306,784.40 1465 $101,233.30 $64,152.27 2011 The information $154,090,071.28 1488 $103,555.16 $62,257.61 released... shows that since major changes There were the usual big variations among the 1,205 were made to legal approved providers who received a payment in the latest aid eligibility and year. The highest gross amount paid to a provider was provider status in $1,787,171, with seven providers receiving over $1 million 2010 there has been in gross payments. Just under one-third – 31.5% – of a steady upward providers received a gross payment under $50,000. trend in average and median provider payments.

97 ACCESS TO JUSTICE December 2018 · LAWTALK 924

Highest total gross legal aid payments by location, year to 30 June 2018 Centre Providers Total gross % New Zealand $100,000+ Auckland 418 $48,549,312.29 30.7% 179 Christchurch 101 $11,737,628.37 7.4% 45 Wellington 76 $11,734,611.55 7.4% 26 Hamilton 72 $10,566,149.96 6.7% 41 Rotorua 34 $7,661,653.71 4.8% 22 Whangārei 31 $5,281,359.93 3.3% 20 Tauranga 47 $5,094,955.93 3.2% 17 Lower Hutt 15 $4,349,907.59 2.7% 12 Palmerston North 20 $3,920,049.64 2.5% 13 Dunedin 43 $3,817,850.78 2.4% 11 Rest of New Zealand 348 $45,605,040.61 28.8% 162 Total 1205 $158,318.520.26 100.0% 548

Highest average gross legal aid payments by location, year to 30 June 2018

Centre Providers Average gross Median The volume of civil grants Whakatane 7 $306,843.84 $238,499.02 increased by 22%, with Kaikohe 7 $294,782.36 $278,295.57 expenditure up by just Lower Hutt 15 $289,993.84 $247,910.28 2%. The ministry says civil Gisborne 14 $263,796.09 $141,375.85 grants often continue for Whanganui 13 $251,861.82 $146,464.90 longer than 12 months Rotorua 34 $225,342.76 $137,157.38 and “consequently, the Palmerston North 20 $196,002.48 $141,758.27 expenditure and volume Pukekohe 4 $184,113.33 $187,433.57 of grants in a year are not directly compatible. The Otaki 3 $177,965.11 $95,003.16 average costs of civil grants Whangārei 31 $170,366.45 $146,222.89 Rest of New have not decreased.” Zealand 1057 $117,934.22 Total 1205 $131,384.66 $90,497.00

The ministry has also provided information on the volume of Payments by type of legal aid legal aid grants by jurisdiction. This shows that the volume of Following a request for further information, the ministry says most criminal grants increased by 3%. It says the difference between of the increase was in criminal legal aid ($12.3 million of the $15.7 the number of grants and the value is because the average cost million increase between 2016/17 and 2017/18) and family legal aid of criminal grants increased “largely because of the increases to ($2.8 million increase). The ministry’s figures differ slightly from the criminal fixed fee schedules”. the gross payments to providers because of timing differences. The volume of civil grants increased by 22%, with expenditure up by just 2%. The ministry says civil grants often continue for Ministry of Justice legal aid expenditure, longer than 12 months and “consequently, the expenditure and year to 30 June ($ million) volume of grants in a year are not directly compatible. The average Category 2017 2018 Variance costs of civil grants have not decreased.” Civil legal aid $5.6 $5.7 2% Number of grants of legal aid, year to 30 June Criminal legal aid $68.8 $81.1 18% Category 2017 2018 Variance Duty lawyer $10.7 $10.6 (1%) Criminal legal aid (excludes PDS) Police detention legal assistance $0.4 $0.4 0% 42,063 43,263 3% Family legal aid Family legal aid $42.4 $45.2 7% 17,897 17,884 0% Civil legal aid Family legal advice service $1.0 $1.2 20% 1,018 1,225 22% Waitangi Tribunal Waitangi legal aid $15.5 $15.9 3% 152 205 35% Total $144.4 $160.1 11% Total 61,130 62,577 2%

98 LAWTALK 924 · December 2018 LEGAL INFORMATION

LEGAL INFORMATION The Australian Advocacy Institute’s Advocacy Manual The Complete Guide to Persuasive Advocacy, 2nd Edition, 2018 (Reprint) By Professor George Hampel AM QC, Justice Ann Ainslie-Wallace, Elizabeth Brimer and Randall Kune

REVIEWED BY GARRY WILLIAMS

it is “The Complete Guide to Persuasive The work comprehensively outlines the As Murray Gleeson AC QC (Chief Advocacy” made me want to track down fundamentals of advocacy and uses a fact Justice of Australia 1998-2008) says in the a copy. pattern that is familiar to anyone who has foreword to the first edition of theAdvocacy Could it really live up to the claim? done the NZLS Litigation Skills Course in Manual – The Complete Guide to Persuasive First, I checked whether it was in any the last 30 years to do so – DPP v Daniel Advocacy: of the major New Zealand law libraries. Jones. “There can be a certain pleasure in It isn’t. The purpose of including the fact pattern watching an adversary alienate a Second, I checked Amazon. It wasn’t (which involves the prosecution of a bottle potentially helpful witness, irritate a available there either. shop for knowingly supplying an alcoholic judge, or otherwise employ the arts by Finally, I found it. It was available, of beverage to an intoxicated person – Walter which some lawyers seem to snatch all places, from the Australian Advocacy Watkins) “is to provide illustrations and defeat from the jaws of victory.” Institute’s website. Doh! exercises in the skills and techniques of But while such schadenfreude may be I paid the purchase price of AU$198, advocacy, and to do this in a practical way momentarily satisfying (and we all know together with the required postage and by examining [a] case as a whole”. The fact that it can be), winning against an oppo- packaging fee of AU$40 (for an interna- pattern is more complicated than that nent who is not quite up to the task is tional order) and it arrived a few days later. used in the NZLS Litigation Skills course never as satisfying as doing so against It is a black hardback volume consisting but essentially it involves the same issues. competent counsel or, better yet, a very of 222 pages. It is divided into the following The work is a practical guide to the phi- skilled adversary. 13 sections: losophy, performance and practice of good Which is why the Australian Advocacy 1 The Ethics and Etiquette of Advocacy. advocacy. Nevertheless, it recognises that Institute’s Advocacy Manual should be 2 Preparation and Analysis. while the necessary skills can be described, compulsory reading for anyone who prac- 3 Evidence in Action. the learning process necessarily requires tises as a litigator. Someone who reads it 4 Opening Address. both demonstration of each skill and per- and applies what is within its pages will 5 Examination in Chief and formance. It should not be overlooked that undoubtedly improve their advocacy skills. Re-Examination. the Advocacy Manual is usually used as I have to confess that I had never heard 6 Cross-Examination. an adjunct to attending one of the AAI’s of the Advocacy Manual before I found 7 Argument. advocacy courses, but, while that is so, an obscure reference to it on the internet. 8 Appellate Advocacy. much is to be gained by just reading it. Given that I actively keep a lookout for 9 Plea in Mitigation. The first section, The Ethics and Etiquette books on the topic of advocacy and the 10 Expert Evidence. of Advocacy, contains a useful summary of first edition had been published in 2008 11 Written Advocacy. the various duties an advocate owes to the this surprised me. 12 Advocacy in Mediation. court and his or her client. This summary This and the bold claim on the cover that 13 Communication. is succinct but captures these important

99 LEGAL INFORMATION December 2018 · LAWTALK 924

obligations in three pages of bullet points. The section The section on Argument focuses on the essential also concisely sets out the important rules of etiquette. requirements of persuasive argument and breaks this Compliance with the rules of ethical conduct and down into the need for logical structure and reasoning; etiquette is of fundamental importance and familiarity credibility (both of the argument and the arguer); and with the content of this section of the work will help to pathos (empathy). This last requirement is elusive but enhance an advocate’s confidence in and out of court appears to be the achievement of mutual understanding and their standing in the profession. with the decision-maker. The second section, Preparation and Analysis, states The need for effective presentation is also stressed that there are four components of, or steps to prepara- and a list of techniques is provided which can help to tion. These are said to be: achieve this aspect of argument. • Obtaining a thorough knowledge of the case materials; The description of the characteristics of a persua- • Acquiring knowledge of the current relevant law, sive appellate argument found in the section entitled evidence and procedure; Appellate Advocacy is particularly valuable. So too is • Undertaking analysis to develop a case theory; and the material in this section that relates to structuring • Performance preparation. oral arguments on appeal. The topics of dealing with The parts of this section that relate to the characteristics questions from the Bench and communication are also of a good case theory and developing a case theory, covered. while brief, contain some of the best advice that I’ve There isn’t space in a book review of this length to seen on these topics. outline the content of the remaining sections in detail. Having developed a theory of the case i.e. what you It suffices to say, however, that they well worth perusing need to achieve in the case, the work then advises that and digesting. good preparation requires you to prepare how you will So, is the Advocacy Manual “The Complete Guide to achieve this. The authors suggest that this performance Persuasive Advocacy”? preparation is best approached by preparing the closing In short, “Yes, it is” and, if you don’t believe me, here address first as “when prepared first, argument as to [the] is a taste of what some other reviewers have said about facts and law, based on your case theory, will give you this work: the direction needed for the other Michael McHugh, former Justice of the High Court of steps in the trial”. Such a draft clos- Australia (1989-2005): ing address will serve “as a guide “This is the most valuable work that will repay to what needs to be done in order reading and re-reading by even the most expe- to support your case theory…. This rience advocate. It should be on the shelves in is like an architect preparing final every advocate’s law library. I would not only plans before the building starts”. adopt the statement in the foreword by the Hon Section 3, Evidence in Action, Murray Gleeson AC QC, one of the greatest advo- covers such topics as relevance, cates that the Australian profession has produced, hearsay, identification, character commending “this valuable work to all aspiring evidence, arguing for or against the legal advocates”, I would also commend it to the admissibility of evidence on a voir experienced legal advocate.” dire, making and answering objec- John Doyle, former Chief Justice of the Supreme Court tions during a trial, dealing with of South Australia (1995-2012): a hostile witness, impeachment, The parts of “A practitioner who absorbs and applies the teach- and the rules in Browne v Dunn this section ing found in this manual can be confident that he and Jones v Dunkel. All good stuff, that relate or she will be an effective advocate.” covered succinctly but in such a way to the Christopher Steytler, former President of the Western that the crucial aspects of each topic characteristics Australian Court of Appeal (2005-2009): are developed sufficiently. of a good case “This is not a book to be put away. Every barrister Sections 4-6 deal respectively theory and should keep a copy handy at every stage of the with the topics of Opening Address, developing a litigation process.” Examination in Chief and Re-Exam- case theory, ination and Cross-Examination. while brief, ISBN: 9780646494418, 2018, Hardback, 222 pages. ▪ Again, each of these sections deals contain some with these topics comprehensively. of the best Garry Williams  williams@richmondchambers. Sections 7-8 cover Argument advice that co.nz is a barrister in Auckland’s Richmond Chambers and Appellate Advocacy. Both are I’ve seen on and a member of the NZBA Training and Diversity essential reading. these topics. Committees.

100 LAWTALK 924 · December 2018 LEGAL INFORMATION

LEGAL INFORMATION Some recent legal books July 2018. BY GEOFF LexisNexis NZ Ltd, 978-0-947514-77-8, October 2018, ADLAM 449 pages, paperback, $65 (includes GST, excludes postage).

Driving Under the Influence Arbitration, 2nd edition By Geoff Hall and Andrew Becroft By Anthony Willy and Terry Sissons This has been extracted A lot has changed in the from Becroft and Hall’s world of arbitration since Transport Law and brings retired District Court Judge together the commentary Anthony Willy brought out and legislation relevant the first edition in 2010. He to intoxicated driving. has been joined by barrister It includes annotated and arbitrator Terry Sissons. Parts 6 to 8 of the Land Aimed at practitioners and Transport Act 1998 along students, the book contains with an overview of legal 19 chapters which consider principles involved in all matters which will be breath and blood testing, encountered by someone selected extracts from the involved in arbitration in main text’s section on sentencing principles and practice, New Zealand. The practical focus is found in chapters on and selected extracts of commentary on relevant parts matters such as advocacy in arbitration and writing the of the New Zealand Bill of Rights Act 1990. The law is award, alongside examination of arbitration principles stated as at 1 July 2018. and requirements. There are 14 appendices of AMINZ LexisNexis NZ Ltd, 978-1-927183-39-7, October 2018, 749 and other organisations’ rules and codes. pages, paperback, $150 (includes GST, excludes postage). Thomson Reuters New Zealand Ltd, 978-1-988553-26-9, September 2018, 713 pages, paperback and e-book, $150 (excludes GST and postage). Psychology and the Law in Aotearoa New Zealand, 2nd edition Crimes Act 1961, 23rd edition Edited by Fred Seymour, Suzanne Blackwell and Armon Tamatea This is the annual consol- idation of the Crimes Act. As well as the editors, there are 25 expert contributors The text contains notes on to this new edition. The first edition was published in the history of each section 2011 and the 15 chapters in the latest edition are on but no commentary on similar themes. The editors say their aim is to assist their application, with psychologists to better recognise and understand the editorial notes providing various ways in which laws and regulations impact references when there is day-to-day practice across all work settings, as well a relationship to other as assisting those who work in fields such as criminal legislation. The Act is offending, child protection and schools. The editors consolidated to include and authors are all experienced psychologists with all amendments to 10 the exception of District Court Judge Tony Fitzgerald

101 LEGAL INFORMATION December 2018 · LAWTALK 924

and Simon Jefferson QC. comprehensive account of the principles of legal ethics New Zealand Psychological Society, 978-0-473449- and professional responsibility in New Zealand. In 16 64-3, September 2018, 381 pages, paperback. Order chapters he looks at all the practical and moral questions through the New Zealand Psychological Society ($74 as to conduct which are encountered by New Zealand for non-members). lawyers, with reference to case law and legislation. There are special chapters on advocacy ethics, for barristers, and for in-house lawyers, as well as one on ethics in Residential Tenancy Law non-litigation dispute resolution. The law is stated as in New Zealand at 1 July 2018. Thomson Reuters New Zealand Ltd, 978-1-988553-36-8, By Stewart Benson September 2018, 438 pages, paperback and e-book, $90 (excludes GST and postage). Tenancy Tribunal adjudi- cator and trained lawyer Stewart Benson has been Trade Marks in Practice, assisted in his analysis 4th edition of the law relating to residential tenancy by his By Paul Sumpter collection of over 1,000 Tenancy Tribunal deci- University of Auckland sions. He takes a practical senior law lecturer Paul focus, saying he has tried Sumpter’s new edition to explain the law “in a comes three years after matter-of-fact way and the last one. Mr Sumpter to let the cases speak for is a registered patent themselves”. Extensively attorney and member referenced to cases and legislation, the book provides of the Copyright Tribunal comprehensive coverage of all aspects of residential and the book is written tenancy in its nine chapters. The biggest chapter has specifically for legal an extensive review of the rights and obligations of practitioners. It has landlords and tenants. The law is stated as at 31 August been extracted from 2018. the online publication Thomson Reuters New Zealand Ltd, 978-1-988553-05-4, Intellectual Property Law October 2018, 348 pages, paperback and e-book, $150 and is structured around the Trade Marks Act 2002 and (excludes GST and postage). regulations with section-by-section commentary. There is no introductory overview. The law is stated as at 6 June 2018. The Ethical Lawyer: Legal ethics LexisNexis NZ Ltd, 978-0-947514-67-9, August 2018, and professional responsibility 365 pages, paperback, $160 (includes GST, excludes postage). ▪ By Richard Scragg

Drawing on his own career as a lawyer, academic and now teacher Legal books of the undergraduate This information has been compiled from books Legal Ethics course at the which publishers have sent to LawTalk. It does University of Auckland, not imply endorsement by the New Zealand Law Richard Scragg’s book Society and is intended to provide information is aimed at practition- on books which may be of interest to the legal ers, regulators and law profession. Purchase inquiries must be directed students. He says his to the appropriate publisher. intention is to provide a

102 LAWTALK 924 · December 2018 CLASSIFIEDS · WILL NOTICES

Brown, Hamiora Hanuere Rakaitapu Price, Darcy John Will Karakia Would any lawyer holding a will for the above-named, Would any lawyer holding a will for the above-named, late of 17 Winsomere Crescent, Westmere, Auckland, late of 3 Pahura Road, Tolaga Bay 4077, born on 28 aged 52, who died on 29 September 2018, please September 1962, who died on 17 September 2018, contact A T Mulcaster, Moody & Gulley: Notices please contact Ashlea Murphy, McCaw Lewis:  [email protected]  [email protected]  09 489 6876 or fax 09 486 6101  07 958 7438  PO Box 33051, Takapuna, Auckland or DX PAGE 95  PO Box 9348, Hamilton 3240 or DX GP 20020 BP66087 Archer, Aileen Chen, Xiaoqing Bishop, Leon Rongomai Would any lawyer holding a will for the above-named, Roy, Harish Rohitesh Brown, Hamiora Hanuere late of 154 Kittiwake Dr, Albany, Auckland City, born Would any lawyer holding a will for the above-named, Rakaitapu Karakia on 1 December 1981, who died on 13 September 2018, late of 6 Devon Street, Te Atatu South, Waitakere Chen, Xiaoqing please contact Wendy Lu, Righteous Law: 0610, Real Estate Agent at Barfoot & Thompson Duncan, Albert Warner  [email protected] Glendene, born on 23 February 1974, who died on 17 September 2018, please contact Darsan Singh, Forrest, Brian Alexander  09 580 1083 Shean Singh Barristers & Solicitors: Gray, Penelope Jean (aka Duncan, Albert Warner  Penelope Jean Passfield-Smith) [email protected] Would any lawyer holding a will for the above-named,  0275435046 Nola, Mary Dorothy late of 1003 Oropi Road, RD 3, Tauranga, Retired, who  PO Box 10018 Balmoral, Auckland 1024 Price, Darcy John died on 21 October 2018 in Tauranga, please contact Roy, Harish Rohitesh Joanne Savage, Holland Beckett Law: Scanlan, Noel William Scanlan, Noel William  [email protected] Stuart, Ian Keith  07 577-8006 or fax 07 578 8055 Would any lawyer holding a will for the above-named,  late of 158 Shanley Road, Hastings, Company Director, Walker, Vivienne Claire Private Bag 12011, Tauranga 3143 aged 67 years, born on 19 September 1951, who died PAGE 96 Forrest, Brian Alexander on 6 October 2018, please contact Louise Waugh, Would any lawyer holding a will for the above-named, Craig Griffin & Lord: Whitlow, Albert Edward late of Auckland, born on 24 August 1938 , who died  [email protected] Wraight, Allan Theodore on 18 October 2018 in Auckland, please contact John  09 631 0593 or fax 09 630 6821 Wu, Fiona Tzou Fen Broadbent, W.G. Broadbent & Co.:  PO Box 9049, Newmarket, Auckland 1149 or  [email protected] DXCP31003  07 862 8659 or fax 07 862 8917 Archer, Aileen  PO Box 28, Paeroa 3640 or DX GA25003 Stuart, Ian Keith Would any lawyer, particularly in the Wellington Gray, Penelope Jean (aka Penelope Would any lawyer holding a will for the above-named, area, holding a will for the above-named, late of 12C Jean Passfield-Smith) late of Porirua, Wellington, please contact Ataga’i Atua Street, Johnsonville, Wellington, but recently of Would any lawyer holding a will for the above-named, Esera, Family Law Specialists Ltd: Village at the Park, 130 Rintoul Street, Berhampore, late of 10 Downer Access Road, please contact Alan  [email protected] Wellington, please contact Ruchelle Liut, Public Trust: Broadbent, Alan Broadbent Family Lawyer:  04 237 4063 or fax 04 237 4062;  [email protected]  [email protected]  PO Box 50 513, Porirua or DX SP32504  PO Box 31543, Lower Hutt 5040  021 458445  16 McAinch Place, Kamo, Whangarei Bishop, Leon Rongomai Walker, Vivienne Claire Would any lawyer holding a will for the above-named, Nola, Mary Dorothy Would any lawyer knowing any details for the above- late of 2 Waingaro Road Ngaruawahia 3720, born Would any lawyer holding a will for the above-named, named, the Executrix for the Estate of Ruth Cameron on 19 April 1967, who died on 17 April 2018, please late of Auckland, who was born on 6 November 1929, McKenzie, please contact Gemma Barden, Clark & contact David Mayall, Niemand Peebles Hoult: please contact Elizabeth Nola, sister-in-law and Gay, Solicitors:  [email protected] property manager:  [email protected]  07 959 1818  [email protected]  07 863 7250  PO Box 1028 Hamilton 3204  021 184 9524  PO Box 5, Waihi or DX HA43502

SIMPLIFYING Quest for a BEQUESTS Bequest Now it’s easy to ﬁnd relevant charity bequest information all in one place! www.questforabequest.co.nz Can’t ﬁnd what you need on our website? Call on 027 276 2730 for assistance.

103 LEGAL JOBS · CLASSIFIEDS December 2018 · LAWTALK 924

WILL NOTICES CONTINUED LAWYER/LEGAL EXECUTIVE WANTED

Moody & Gulley is a small Takapuna general practice with an Whitlow, Albert Edward emphasis on property, business, wills, estates, trusts etc (with Would any lawyer holding a will for the above-named, some common law work available) and seeks a self-reliant and late of 137A Ruapehu Street, Paraparaumu, born on motivated practitioner to replace a senior staff member who is 22 July 1937, who died on 19 October 2018, please planning to retire 31st March next year. Flexible start date. We contact Allison Te Maro, Wakefields Lawyers: would potentially consider a job share scenario (3/2 or 3/3 full  [email protected] days and lawyer/lawyer or lawyer/legal executive).  04 296 1177 or fax 04 296 1350 We offer a congenial environment in pleasant, sunny offices just  PO Box 352, Paraparaumu or DX RP60014 a short walk from one of the North Shore of Auckland’s main business and retail areas – and a short walk from Takapuna Beach. There are good prospects for the right candidate(s). Wraight, Allan Theodore Would any lawyer holding a will for the above-named, To register your interest, in the first instance please send your formerly of Christchurch and latterly of Oamaru, contact details and CV to [email protected]. Retired, born on 22 August 1947, who died on 31 October 2018, please contact Wayne Todd, Dean & Associates: PROPERTY LAW PRACTICE  [email protected]  03 434 5128 FOR SALE OR MERGER  PO Box 242, Oamaru 9444 — Wellington Area

Established small general practice in the Wellington suburban Wu, Fiona Tzou Fen area available for sale or merger. Would any lawyer holding a will for the above-named, • Longstanding, loyal client base – more than 25 years in the area late of 12A Muir Road, Remuera, Auckland, born on 11 February 1968, who died on 9 October 2018 in • Good potential for growth Auckland, please contact Colin McKay, Wilson McKay, • Current principal can remain involved with the business as required Barristers & Solicitors:  [email protected] Please contact the advertiser, in confidence, at:  09 523 0756 ▶ Confidential Advertiser No. 18-6 (c\- Christine Wilson)  PO Box 28347, Remuera, Auckland or DX CP33019 email: [email protected]

Employment Lawyer REFEREES, DISPUTES TRIBUNAL Palmerston North AUCKLAND CBD Leading niche employment law ﬁ rm There will shortly be a process for the appointment of Referees in the Palmerston North Region. Members of the public are invited to submit the names of persons

LangtonHudsonButcher is a specialist employment law fi rm, who are considered suitable for appointment as recognised as a leader in its fi eld. We are the largest employment Referee. law team in Auckland, providing advice to and representation of Nominations must be sent in writing or by email. They top-tier corporates. We offer a highly collaborative work must contain the name, address, telephone number environment and an extensive range of employment law work. and email address of both the nominator and the We want this work to be performed by clever and passionate person being nominated. lawyers, who know their clients and their clients’ business. Once a nomination has been received, the person who We are currently seeking a highly motivated intermediate/ is nominated will be sent an application pack with senior-level lawyer to join the team. Our ideal candidate will details relating to the position and how to apply for it. have strong academics, at least 3 years’ experience in employment Nominations are to be made to the Principal Disputes law (contentious and advisory), a commitment to the on-going Referee, Private Bag 32 001, Featherston Street, refi nement of legal skills, a focus on client service, and a track record of contributing to the achievement of team goals. We are open to Wellington 6146, Ph: (04) 462 6695, or email Kelly-Lea. discussing fl exible working arrangements for the right candidate. [email protected]

For a conﬁ dential discussion about this opportunity, please contact Nominations must be received by this office no later Lara Brown, Practice Manager, on 09 916 2593, or submit your than 12 noon on Wednesday 30 January 2019. application to [email protected]

104 LAWTALK 924 · December 2018 CLASSIFIEDS · LEGAL JOBS

REFEREES, DISPUTES TRIBUNAL REFEREES, DISPUTES TRIBUNAL Gisborne New Plymouth There will shortly be a process for the appointment There will shortly be a process for the appointment of of Referees in the Gisborne Region. Members of the Referees in the New Plymouth Region. Members of the public are invited to submit the names of persons who public are invited to submit the names of persons who are considered suitable for appointment as Referee. are considered suitable for appointment as Referee. Nominations must be sent in writing or by email. They Nominations must be sent in writing or by email. They must contain the name, address, telephone number must contain the name, address, telephone number and email address of both the nominator and the and email address of both the nominator and the person being nominated. person being nominated. Once a nomination has been received, the person Once a nomination has been received, the person who is nominated will be sent an application pack who is nominated will be sent an application pack with details relating to the position and how to apply with details relating to the position and how to apply for it. for it. Nominations are to be made to the Principal Disputes Nominations are to be made to the Principal Disputes Referee, Private Bag 32 001, Featherston Street, Referee, Private Bag 32 001, Featherston Street, Wellington 6146, Ph: (04) 462 6695, or email Kelly-Lea. Wellington 6146, Ph: (04) 462 6695, or email Kelly-Lea. [email protected] [email protected] Nominations must be received by this office no later Nominations must be received by this office no later than 12 noon on Monday 17 December 2018. than 12 noon on Monday 17 December 2018.

REFEREES, DISPUTES TRIBUNAL REFEREES, DISPUTES TRIBUNAL Whanganui Whangarei There will shortly be a process for the appointment of There will shortly be a process for the appointment Referees in the Whanganui Region. Members of the of Referees in the Whangarei Region. Members of the public are invited to submit the names of persons who public are invited to submit the names of persons who are considered suitable for appointment as Referee. are considered suitable for appointment as Referee. Nominations must be sent in writing or by email. They Nominations must be sent in writing or by email. They must contain the name, address, telephone number must contain the name, address, telephone number and email address of both the nominator and the and email address of both the nominator and the person being nominated. person being nominated. Once a nomination has been received, the person Once a nomination has been received, the person who is nominated will be sent an application pack who is nominated will be sent an application pack with details relating to the position and how to apply with details relating to the position and how to apply for it. for it. Nominations are to be made to the Principal Disputes Nominations are to be made to the Principal Disputes Referee, Private Bag 32 001, Featherston Street, Referee, Private Bag 32 001, Featherston Street, Wellington 6146, Ph: (04) 462 6695, or email Kelly-Lea. Wellington 6146, Ph: (04) 462 6695, or email Kelly-Lea. [email protected] [email protected] Nominations must be received by this office no later Nominations must be received by this office no later than 12 noon on Monday 17 December 2018. than 12 noon on Friday 18 January 2019.

105 LEGAL JOBS · CLASSIFIEDS December 2018 · LAWTALK 924

FAMILY / RELATIONSHIP PROPERTY LAWYER

We’re looking for an experienced senior family lawyer to join our team. The focus of our family team is to work with new and existing clients particularly in the areas of relationship property, contracting out agreements Junior and Intermediate and asset protection planning, protection of personal property, separation, parenting and contact. We do not generally offer legal aid services. Litigation Lawyers Our significant client base provides a solid foundation of family law work Gilbert Walker is a specialist advisory and dispute and we are looking for someone who is keen to actively promote our family resolution practice based in Auckland. We practise across law services. We work primarily with private clients, small to medium sized a broad range of civil disputes, including commercial, businesses and trusts. construction, insurance, property, trusts and regulatory An opportunity exists for you to join our team at a senior level, be involved matters. We are acting on a wide range of interesting in developing further and promoting our family law services and over time and challenging matters for high proﬁle clients. potentially take a lead role in our team. We prefer applicants to have at We are recruiting junior and intermediate associates to least 6 years current practical experience and be able to demonstrate a join us in 2019. strong commitment to family law and legal practice. You’ll need to be a team player, enthusiastic, dependable and technically competent, with an We maintain a low ratio of senior to junior lawyers. If you ability to work autonomously on files and with clients. join us, you can expect to work with each of our three partners in small, focused teams. All of our lawyers Corcoran French is a reputable mid-size law firm with offices in Christchurch engage directly with our clients and appear regularly in and Kaiapoi. The role involves working between the two offices. court and other dispute resolution forums. We work in an open and collegial environment that rewards those with We are well regarded for the quality of services we deliver to our clients initiative and high standards of excellence. and we have expertise across a broad range of practice areas. We require a commitment to excellence and attention to detail. We expect honesty, If you have an outstanding record of academic and integrity and high standards. In return we provide great working conditions, professional achievement we would like to hear from you. a supportive environment, up to date technology and a great opportunity We pay our lawyers at the top of the market to attract the for career progression. We have a friendly and supportive culture. best candidates. If you wish to apply please send your application and CV to our General Applications should be sent to: Martin Smith at Manager, Steven Duxfield or contact him for further information. All [email protected] applications will be acknowledged and treated confidentially. For further information about our ﬁrm, please Steven Duxfield contact any of our partners or sta, or visit our [email protected] | www.corcoranfrench.co.nz | Phone 379 4660 website: www.gilbertwalker.com

Solicitor

Heaney & Partners are a specialist insurance, litigation and dispute resolution firm based in the CBD. As we embark on the next stage of expansion of the firm’s services, we are currently looking for two solicitors with 1-4 years PQE to join our dedicated team. Applicants should have the following credentials: • Be admitted as a barrister and solicitor of the High Court of New Zealand; • 1-4 years post admission experience (experience in litigation would be an advantage but not an impediment for the right OUTSTANDING OPPORTUNITY person); • A disciplined approach to the management of files; HAWKE’S BAY BARRISTERS CHAMBERS • A positive and enthusiastic disposition; • Excellent inter-personal skills; A high profile established barristers chambers in Hawke’s Bay • Experience or a keen interest in alternative dispute resolution, with a nationwide practice base is seeking to fill space recently particularly settlement negotiations and mediations. vacated. Diverse range of general and specialist practice In return you will be well remunerated, become involved in high areas of remaining barristers include commercial and criminal quality work and be part of a safe, positive and collegial work litigation, resource management, public and local government environment. law, along with appellate advocacy. Some overflow work in these areas may be available, along with opportunity to expand Please apply in writing with your curriculum vitae, academic beyond existing range of practice areas. Excellent location and record and references to the Executive Manager, PO Box 105-391, facilities with competitive overheads. Auckland or [email protected] by 20 December 2018. All enquiries will be treated in the strictest confidence. For any inquiries or expressions of interest, GENDER EQUALITY please reply to [email protected] CHARTER before 31 January 2019.

106 CPD Calendar

PROGRAMME PRESENTERS CONTENT WHERE WHEN CRIMINAL

DUTY LAWYER TRAINING Local Presenters Duty lawyers are critical to the smooth running of a District Various Feb-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 COMPANY, COMMERCIAL AND TAX

INTRODUCTION Local Presenters A practical two-day transaction-based workshop that will Christchurch 11-12 Mar TO COMPANY LAW equip you with the knowledge and understanding to deal with Wellington 18-19 Mar PRACTICE the purchase, establishment, operation and sale of a business. A popular, regular in the CLE calendar. Auckland 25-26 Mar 13 CPD hours

GENERAL

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

LAWYER FOR CHILD Hana Ellis This workshop has been designed to ensure participants Wellington 20-22 Mar Wendy Kelly have the opportunity to develop the full range of skills, 18.5 CPD hours knowledge and attitudes required to carry out the role of April Trenberth Lawyer for Child effectively. Jason Wren

PRACTICE & PROFESSIONAL SKILLS

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

TRUST ACCOUNT Philip Strang Under the Financial Assurance Scheme all practices operating Auckland 1 16 Apr SUPERVISOR TRAINING a trust account must appoint a qualified Trust Account Hamilton 18 Jul PROGRAMME Supervisor. A candidate must be a lawyer and must pass the NZLS Trust Account Supervisor assessments, which take Wellington 24 Sept Auckland 2 5 Nov 7.5 CPD hours place during a full day programme. The training consists of self-study learning material (approx. 40-50 hours) to help you Christchurch 12 Nov prepare for the assessments.

STEPPING UP – Director: All lawyers wishing to practise on their own account whether Auckland 1 7-9 Mar FOUNDATION FOR Stuart Spicer alone, in partnership, in an incorporated practice or as a Christchurch 9-11 May PRACTISING ON OWN barrister, will be required to complete this course. (Note: Auckland 2 11-13 Jul ACCOUNT 2018 From 1 October 2012 all lawyers applying to be barristers sole are required to complete Stepping Up.) Developed with the Wellington 12-14 Sep 18.5 CPD hours support of the New Zealand Law Foundation. Auckland 3 21-23 Nov

IN SHORT

NO WILL – AN INTESTATE Theresa Donnelly The death of a family member is an extremely stressful time Auckland 19 Feb ESTATE Henry Stokes and this stress can be compounded when the deceased Live Webstream 19 Feb has died without a will. Even when there is a will, if gifts fail, 2 CPD hours there may be an intestacy or partial intestacy. This seminar will provide practical advice aimed at helping ensure that you are able to effectively guide your clients through the process of an intestate deceased estate.

FRANCHISING - KEY Sarah Pilcher Franchising remains a growth industry in New Zealand that Auckland 21 Feb ISSUES Deirdre Watson is becoming increasingly complex and specialised and it is Live Webstream 21 Feb important that practitioners are able to provide their clients 2 CPD hours with effective advice on potentially life changing decisions. This seminar will cover the fundamentals of advising your clients on entry into a franchise agreement and working through some of the common disputes that may emerge both in the course of the relationship and on termination.

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

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To contact us | Visit: www.lawyerseducation.co.nz Email: [email protected] | Phone: CLE information on 0800 333 111. LAWTALK 924 · December 2018 LIFESTYLE

LIFESTYLE

44 Land, causing alien internal A New Zealand discomfort (5) 45 Everyone gasp for God (5) 46 Therapy with a bearing on Legal Crossword interruption, shifting union to end (7) 47 Aotearoa keeping punk rock as a present from my true love (1,6,2,1,5,4) SET BY MĀYĀ Down 1 Protestant has 8 bits in sin, taking 1 2 3 4 5 6 7 8 9 10 P with rear action (12) 2 Regretting having crush on girl (5)

11 12 13 3 Everyone (US, I hear) thanks (UK) the meeting place of Churchill, Roosevelt and Stalin (5) 14 15 4 Crashed UFO's lost disc shape - 16 jam for a nitpicker (7) 17 18 19 20 21 22 5 Wha in 47 having half a huge

23 24 embrace and massages for baby beetles (4,5) 25 26 27 28 6/16 Toru in 47 fits slack contract into woven baskets (4,4) 29 30 31 7 King Jaguar: "Enter the text again!" (6)

32 33 34 35 8 Bail out cook making salad (7) 9 I bail out, which is why I wasn't 36 37 there (5) 38 39 40 41 42 10 Bird getting direction for posh 43 flail(6)

44 45 46 16 See 6 18 What animal lives in water? (7) 19 Postulate a team with no 47 Frenchman (5) 22 Like the life of an unsuccessful - Solution to November 2018 crossword on page 110. or successful - archaeologist (2,5) 23/29 Whitu in 47 may be wise as Across 25 Being small, Rush can go to lemmings (4,1-8) 1 Plaintiff at celebration of original Essex (9) 24 Use lacy satin to make what acting role (5,2,3,5,4) 27 Point archer to musical piece on Chico wasn't fooled by (6,6) 11 Wait about for the French food (7) chickweed (9) 26 Vile from toe to head? (4) 12 Centre of male creativity? (5) 29 See 23 Down 28 Plain, but may fill an opening to 13 Blessed chap, nameless, 31 To look through electric current some extent (5) Republican - thorny type (5) with pole and unit conductor (9) 30 Flamboyant date caught a "hi!" (4) 14 Rima in 47: benevolent rich 32 See 39 Down 31 Shift to another vessel as NHS Hoovers (3,3,4) 34 Tekau ma tahi lessons in 47 has a unreliable during voyage (9) 15 Tekau ma rua swinging in 47 kiss and heads off (4) 33 Rock, lead and tulle, oddly (7) skirts 12 Popes preceeded by 3/4 35 Run TV channel for revolutionary 35 Adds extra drawing pins? (5,2) of them (7) 36 Rua in 47 are grand UK uprising (6) 17 Despot not unknown to swallow 38/43 Seat of learning mine 37 Dicky Monday, go-getter (6) thing used in reaction (7) with internal railway network - a 39/32 Conditional acceptance of 20 Euroskeptics, I'm told, make the blueprint for Auckland? (7,4) UFOs? Yayoi's uncertain (2,3,3,2) solver fall asleep (4) 40 Is no chapter with Lorna 41 Side order for J.K.Rowling, say (5) 21 Iwa sacked in 47 just beat Islamic designed to be of the same 42 A recorder who isn't the Queen (5) State with shellfish (5) duration? (10) 43 See 38 Across

109 LIFESTYLE

LIFESTYLE At the beach at Whangamata

BY JOHN BISHOP

Whangamata, a delightful and popular Local interests had spent years holiday town on the east side of the and nearly a million dollars developing a case for a marina at the top end Coromandel peninsula, was once the of the town, but the then Minister of centre of a major test for the Resource Conservation, Chris Carter, vetoed Management Act. the plan and over-ruled a positive recommendation from both the Environment Court and his own officials. The local marina society subsequently appealed to the High Court and won their case with the judge, Justice Fogarty, saying that the M A L T H U S I A N S I A N minister’s decision had procedural iwi, which the judge said must have O Y O C A N E H I N E W E H I N O W N O W errors and was wrong in law. influenced his decision. I L L W C E S Announcing his veto on 6 March This was a procedural error E P A T S Y U R S A 2006, Mr Carter said he sympathised because what the minister had D O Y L E T O E G R L Y D I A F R A M E with the society, but he had a statu- heard at the meeting was not part A S I E R F R N tory duty to protect the coast under of the Environment Court case. M O H U A L O R D E C A E S T R E D D Y the sustainable management prin- He set aside the minister’s veto T O P P B A R R Y O ciples of the Resource Management and ordered him to reconsider the I P E H B M K Act. matter. Later, the Environment S Z A S Z Y G E O R G I N A E R E I A N T “Having looked at the issues in Minister, David Benson-Pope, D O D D R H I N E S T O N E this coastal development proposal, approved the development. the way the Environment Court Opening the $10 million marina Solution to November approached them, and the evidence, with berths for 205 craft in 2009, 2018 crossword I am not satisfied that allowing use the Prime Minister John Key said: Across of the public’s coastal marine area “I think it sends a very strong signal 1. Malthusian, 6. Sian, 9. Hinewehi, for this development would be that New Zealand is a country for 10. Now Now, 11. Patsy, 13. Ursa, appropriate,” Mr Carter said. progress. We want to see devel- 14. Doyle, 17. Lydia, 19. Frame, In his 18 September 2006 decision opment as long as it’s done in the 21. Mohua, 22. Lorde, 23. Reddy, (Whangamata Marine Society Inc v right way and this is a tremendous 25. Topp, 26. Barry, 30. Szaszy, Attorney-General [2007] 1 NZLR 252), example of that. It’s at one with the 31. Georgina, 32. Dodd, 33. Justice Fogarty found that Mr Carter community and nature.” Rhinestone. had gone beyond his powers and had Down made mistakes in vetoing resource More oyster catchers 1. Mohi, 2. Lynley, 3. Howl, consent for the $10 million project. than ever 4. Schwa, 5. Nancy, 7. Inner Specifically, the minister had Jan Bartley, one of the two coun- Ear, 8. News Agency, 12. Starr, reconsidered evidence not put at cillors for the ward covering 14. Dramatised, 15. Elias, the Environment Court hearing. Whangamata for the Thames- 16. Offer, 18. Delta, 20. Sheppard, This had resulted from a meeting Coromandel District Council, says 24. Domino, 26. Beyer, 27. Rhein, between the minister and marina concerns about the marina have 28. Bras, 29. Kate. opponents, including surfers and “vanished”.

110 ▴ Coffee, ice creams, muffins, salads, egg dishes, burgers all staples at Blackies located behind the Surf Living Saving Club.

▴ The marina has berths of over two hundred craft; the very positive talk prior to its most owners are from Auckland, Waikato and the construction, the marina has not Bay of Plenty as well as locals. been a game changer. He says the price of the 200-plus He says this is partly because there are so many new berths has dropped from their initial people in town who weren’t involved in the controversy sale price in 2009. in 2006, and partly because the fears expressed about “I couldn’t say that the marina the effects of the marina on the environment haven’t had made a difference. If it wasn’t come to pass. there, the town would still be pretty “For example, there was an expert witness who gave much like it is now,” Mr Mace says. evidence against the proposal on the dislocation of the Mr Bartley notes that of 5,000 seabird, the oyster catcher. Now there are more oyster dwellings in Whangamata, about catchers around than there ever were before, you can 3,000 are usually unoccupied, see them every day perching on the breakwater.” “What we see is except for the holiday period, when The changes in the tides which the breakwater was about 200 berths the population of around 3,500 can supposed to induce haven’t occurred either, he says. with yachts multiple up to sevenfold. Marina Manager Sue Amos says the resource consent and boats in The benefits of being a holiday had conditions requiring close and regular monitoring them, but only town are also reduced by visitors which had shown no impact on the environment from a small number coming for shorter periods. The hol- the marina’s operations. of vehicles iday season used to be from a week However, the commercial benefits of the marina are at any given or so before Christmas to about the much less obvious. time, outside last week in January. Mr Bartley says while there are no obvious downsides, the summer Now it is a few days before the economic contribution is harder to see. period. There’s Christmas to just after New Year “What we see is about 200 berths with yachts and no detrimental when there is a noticeable exit, fol- boats in them, but only a small number of vehicles at effect on the lowed by a second major movement any given time, outside the summer period. There’s no town, but no about two weeks later. detrimental effect on the town, but no evidence of a evidence of a By the end of January there are positive impact either.” positive impact still holiday-makers and travellers, Local accountant Jeremy Mace agrees that despite either.” but the town is noticeably quieter

111 ▴ Looking south down the Blackies’ food isn’t gourmet, beach. The low line white but it is well made and popular: building on the right is the Surf burgers, pizzas, salads, chips, and Lifesaving Club which patrols all the usual suspects in the egg the beach in the summer department. Ice creams, shakes, holidays. smoothies and coffees can be served to foot traffic at a separate sales window. is acceptable as a good local haunt. Their house cured salmon on cia- The big city bourgeoisie visiting batta with salad is delicious, moist, Whangamata on holiday came tender and flavoursome. Their BLT here when it was called Rossini’s, also delivers – nicely cooked bacon because it was better than the rest, served with crispy lettuce, several and that has continued now it is ▴ Aerial of town and harbour slices of cold tomato and a tangy called 646.  Destination Coromandel dressing. The menu is the standard café In front of us four girls aged formula done well: eggs in all the between eight and 12 are dipping usual formulations, fish, burgers, at that time of year than 10 or even curly fries into tomato sauce and wedges, fries, tasty looking fish five years ago. giggling at their own sophistication. cakes, salads and more. The counter At another table boys in their late has yummy homemade cakes and Food for all teens are lounging about, T-shirts squares as well as giant scones and Debate about the benefits of the off looking for someone to admire a daily offering of muffins. marina and the economic future them. 646 is sometimes open for dinner of the town aside, Whangamata is Service is enthusiastic rather than in the evenings in the summer: my favourite beach resort because professional. ‘Number 22’ calls out it is licensed, and the prices are in summer it combines reliable the young lad with blonde dreads reasonable. weather with good swimming piled up like stale rope. Perhaps he Oliver’s Bakery and Café once at and enough shops and other can’t see the numbers issued on the marina end of Port Road but attractions to occupy a visitor’s ordering at the counter, but every- now more centrally located off time enjoyably. one gets their orders. Port Road provides the best bread Whangamata has been voted the 646 Café on the main street, in Whangamata. best holiday beach in New Zealand. the unremarkable but accurately This is the bread of a French- Lunch at Blackies, an expanded named Port Road, is Whangamata’s trained baker and the ficelles, shed in the park behind the surf club most sophisticated café. Not quite baguettes, crisp rolls and fancy at the southern end of the beach, is reaching the standards set by the loaves are a measurable step up a must do. best in Auckland or Wellington, it from competitors. While the bread

112 LAWTALK 924 · December 2018 TAIL END

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is excellent, Oliver’s pies, filled rolls, sandwiches and pastries move Fake designer quickly too. Arriving after 11am risks eyeing empty bread bins. Cinema and surf handbags, fake A visit to the cinema should also be considered. It’s open only during news, fake summertime and has four or five sessions a day – a carefully selected menu of current movies, children’s lawyers … and family stuff in the daytime and the more serious adult-oriented material in the evenings. For other entertainment there is You’ve got to be careful. Things in 2012 for using a Wellington law- a golf course, a gym, a pub, several may not be what they seem. Fake yer’s letterhead to impersonate bars, a caravan park, a private- lawyers are not all that uncom- a lawyer in order to convince a ly-owned library, and hikes and mon, it turns out. Here are some woman to sell her house. bush walks of varying levels of (mostly) recent examples: In May 2017, Kalpana Narayan difficulty. was jailed for two years and Mostly, people come for the New Zealand four months at Manukau District family-centred beach and water With irregular communications Court for a number of theft and activities which include surfing, and uncertain constitutional dishonesty charges. In one case recreational fishing, scuba diving, arrangements, the qualifications Ms Narayan pretended she was a and sea kayaking. of early lawyers were sometimes lawyer and pretended an assault The main beach is safe for young suspect. The first Chief Justice, charge had been filed against her children, has good surf, and is Sir William Martin, spent some victim. She successfully requested patrolled by volunteer life guards. energy trying to prevent unqual- several payments for filing fees Behind its clubhouse is the com- ified people from practising law. and a court bond before being munity park, where concerts and There were doubts about Alfred found out. children’s activities are staged in the de Bathe Brandon in Wellington hot months. and Michael Murphy in Kororareka Ghana It’s not far to the other beaches, (later renamed Russell). Brandon Emmanuel Marfo was busily argu- Waihi and Whitiroa to the south, and was able to prove that he had ing on behalf of his client in a civil Onemana, Pauanui and Whitianga been a law clerk in London but suit at the Koforidua Circuit Court to the north. was not allowed to practise as a in August 2018 when Judge Evelyn The town has a large supermar- solicitor until he was admitted on Asamoah became suspicious of his ket, petrol stations, liquor stores, 17 February 1844. He later had a inability to follow the legal lan- numerous restaurants and cafes, glittering career, which included guage used and his knowledge some quality clothing shops and becoming the first President of the of procedure. The Daily Graphic plenty of real estate agents. Wellington District Law Society. reported that after further judicial Population growth has been “There is no evidence that interrogation, Mr Marfo admitted driven by retirees who have bought [Murphy] was legally qualified he was not a lawyer and was and built places on the slopes above and the probabilities are against promptly arrested. It got worse for the town, well back from the beach it,” says Portrait of a Profession. Mr Marfo. The lawyer he engaged where the real estate is rather pricier. The Murphy problem was solved to obtain bail was also found to This is now a retirement town not by his appointment as Police be a fake. just a summer beach resort. But the Magistrate in Wellington in 1841 beach is still its major attraction to (no legal qualifications needed). India me. ▪ Both Brandon and Murphy have In January 2017, the Bar Council Wellington streets named after of India said that its two-year John Bishop and his family typi- them. verification process had cut cally visit Whangamata once or More recently, Brian Damian the number of genuine lawyers twice a year and have done so Hunter was convicted in to 55-60% of those previously for more than 10 years. Palmerston North District Court practising. Every year thousands

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of lawyers graduate from almost 900 law colleges spread across India and it’s obviously pretty hard to keep track of who is a genuine lawyer and who is not. In January 2016 the verification project turned up P Natarajan who had served in Tamil Nadu for over 21 years as a judicial magistrate but who had no valid legal qualification. A man called Ajitkar, who was arrested in February 2017 for posing as a lawyer, revealed that wearing a black coat was often enough to convince potential clients that he was a lawyer. Liberia Looking the part is obviously important. Dressed in a “self- made legal suit” Rudolph Hightower ran into problems while arguing a summary proceedings application before Judge Kontoe in Liberia’s Bensonville Magisterial Court, the Daily Observer reported on 15 October 2018. “During the hearing, Hightower rose and introduced himself as counsel … only to start throwing wrong legal jargon in the courtroom from where he was identified as a ‘fake lawyer’ because his language and conduct pricked the ears of Judge Kontoe and other lawyers,” the paper said. Asked when he completed law school and for documents to prove he was a lawyer, Mr Hightower could not comply. He was arrested and, unable to obtain bail, left the court in handcuffs. “Hightower is neither a lawyer nor has he been called to the bar; he is a mere criminal,” Judge Kontoe declared, vowing to continue to scrutinise anyone appearing before him who claimed to be a lawyer.

❝ How and indeed why is such a legal practitioner still Notable enjoying the pride of space among the rank and file in this noble profession? He continues freely traversing the country as a legal practitioner. It is disgraceful.❞ Quotes — Part of the judgment of Justice Nicholas Mathonsi of the Zimbabwe High Court, turning down a setting aside application by lawyer Puwayi Chiutsi. Mr Chiutsi is facing ❝ I just a few weeks ago concluded my arrangements to go allegations of misuse of trust funds. back to the bar and I intend to leave here with class. Class is a commodity that doesn’t seem to be in conspicuous ❝ One person did say ‘you can’t retire until I die and you take supply in politics at the moment.❞ care of my estate.’ So I am sticking around for a while.❞ — Former Attorney-General Christopher Finlayson QC tells — Constance Isherwood, 98, the oldest practising lawyer in Radio New Zealand of his plans to retire from Parliament the Canadian province of British Columbia. and return to practising law. ❝ There were court police escorts, there were court prison ❝ Unlawful, unsafe and irresponsible.❞ escorts, it was under control. Unfortunately you can’t — Ministry of Justice Chief Operating Officer Carl Crafar control people’s behaviour. You can’t win them all.❞ summarises how he saw a strike with just 30 minutes’ — Police prosecutor Sergeant Lewis Sutton after one notice by PSA members at Rotorua’s District, High and defendant attacked another at a hearing in New Plymouth Family Courts. District Court.

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New Jersey, United States practice of law, forgery and a few other things. With a com- Leaford George Cameron, 65, was sentenced in July 2018 to munity college education, Mrs Kitchen forged a law licence, 12 years in prison for posing as a lawyer in a nationwide legal bar exam results and other credentials to convince BMZ Law in scam. Mr Cameron ran a phony law firm from his home while on Huntingdon, Pennsylvania to hire her in 2005. She specialised probation for a 2014 conviction for impersonating an attorney. in estate planning and flourished, making partner and then He claimed to be an attorney in state and federal cases, becoming president of the county bar association. Dismissing her including in six states as well as in Jamaica and India. He appeal, Judge Eugene B Strassburger III said her argument that defrauded over 100 victims and collected at least $200,000 she was “a good fake lawyer” did not negate her illegal intent. in bogus legal fees, authorities said. Mr Cameron’s victims suffered from his lack of real legal knowledge. One woman United Kingdom lost her home in a foreclosure case. In some immigration After being found guilty of six counts of fraud by false rep- cases, his victims were ordered to be removed from the resentation, Harvinder Kaur Thethi, 46, was jailed for five years country. “Cameron was not only a phony lawyer, but also an at Southwark Crown Court in September 2018. Ms Thethi, who incompetent phony lawyer,” US Attorney William M McSwain had no legal qualifications, claimed to be a successful lawyer on said in a statement. a large income. She obtained £68,000 from vulnerable people in payment for immigration services which were promised Nigeria but never delivered. In February 2018 the BBC reported that a Nigerian man who had successfully pretended to be a solicitor for 15 years – and Victoria, Australia won cases – had been arrested and charged. The unnamed Dennis Wayne Jensen of North Warrandyte was banned from 49-year-old was outed when he wanted to vary the bail con- providing legal advice by the Victorian Supreme Court in August ditions for his client but did not know how to go about it. 2018. The Victorian Legal Services Board said Mr Jensen was not A qualified lawyer who was present challenged him, saying a lawyer, did not hold a practising certificate and had never that a bar-registered lawyer should be able to deal with a held any legal qualifications, but had represented clients in bail issue. Local media reports say the man told police that court through his companies Common Law Resolutions Pty Ltd he had studied law at a Ukrainian university, but had yet to and JTA Corporation Pty Ltd. The board published newspaper be called to the bar in Nigeria. notices warning people not to hire him to represent them in court or assist them with any legal matters. Mr Jensen was also Pennsylvania, United States in trouble with health authorities, who issued a prohibition Kimberley Kitchen, 47, was sentenced to two to five years in order against him earlier this year after he claimed he could jail in May 2017 after being found guilty of the unauthorised cure cancer through the use of a black salve paste. ▪

❝ Here’s some free advice I’m giving: When it comes to ❝ Having a Family Court Judge sitting in the Whitestone deciding what to do for a living, Don’t be a lawyer, Don’t Cheese-sponsored Empire Room in the Opera House was do it, Quickest way to ruin your life…❞ just not right and the least said about the porta-court — Part of the song, “Don’t be a Lawyer” in the fourth and arrangements in Humber Street the better.❞ final season of the TV series Crazy Ex-Girlfriend. — Oamaru lawyer Phil Hope reflects on the less than satisfactory arrangements while Oamaru’s courthouse was ❝ Our five stars dim tonight. With our million dollar men being strengthened and renovated after its “temporary” turned blind. Pretending not to see. Ministers, Judges and closure for earthquake-related reasons in 2011. The lawyers.❞ courthouse was reopened on 4 October 2018. — Part of a poem posted on Facebook by Malaysian lawyer Eugene Thuraisingam hours before his client was hanged ❝ In this scenario, it’s not possible for me to live in Pakistan. for drug trafficking. He was fined $6,000 for contempt I need to stay alive as I still have to fight the legal battle by the High Court in August 2017 and has just had a Law for Asia Bibi.❞ Society fine of $5,000 confirmed by a special tribunal. The — Pakistan lawyer Saif-ul-Mulook who represented Asia Bibi tribunal found Mr Thuraisingam’s remorse for his actions who was sentenced to death for blasphemy but whose was genuine and decided not to refer him to the Court of conviction was overturned by the Supreme Court. Mr Three Judges, the highest lawyer disciplinary body. Mulook subsequently left Pakistan for London.

115 Asking for help is a sign of strength

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