Law Talk 2 December 2016 902

Ashburton Why Lawyers Are Like Lobsters Balancing Work and Life: The New Zealand Supreme Court: (and other lessons on surviving in the law) A Practical Guide for Lawyers The First Ten Years RRP*incl. GST: $35.00 This week: $33.25 RRP*incl. GST: $50.00 This week: $47.50 RRP*incl. GST: $75.00 This week: $71.25 ISBN: 9781927313589 ISBN: 9781927248027 ISBN: 9781927313107

Ethics, Professional Responsibility LinkedIn for Lawyers: Connect, New Zealand Law Dictionary, and the Lawyer, 3rd edition engage and grow your business, 2nd edition 8th edition RRP*incl. GST: $130.00 RRP*incl. GST: $55.00 This week: $52.25 RRP*incl. GST: $99.00 This week: $94.05 ISBN: 9781927227824 ISBN: 9781927248638 ISBN: 9781927248218

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2 December 2016 LawTalk 902 Inside

6 Our Profession, Our People 13 Practising Well Lifeline Aotearoa – helping lawyers and their families 15 Thank you all for giving me such a rich experience 20 How lawyers can benefit from LinkedIn LinkedIn is the world’s biggest online networking site for 15 professionals. We take a look at how lawyers can benefit. Thank you all for giving me such a rich experience 23 Access to justice for indigenous peoples 25 Lawyering in Ashburton Ashburton is one of the fastest growing, if not the fastest growing, area of New Zealand in terms of lawyer numbers.

Why Lawyers Are Like Lobsters Balancing Work and Life: The New Zealand Supreme Court: 38 clear, plain language powerful (and other lessons on surviving in the law) A Practical Guide for Lawyers The First Ten Years in making the law accessible RRP*incl. GST: $35.00 This week: $33.25 RRP*incl. GST: $50.00 This week: $47.50 RRP*incl. GST: $75.00 This week: $71.25 ISBN: 9781927313589 ISBN: 9781927248027 ISBN: 9781927313107 40 Helping the communication-impaired 41 Letters to the Editor 42 Law reform 23 multiple ground discrimination Access to justice for indigenous peoples 44 46 How banks and financial institutions can use arbitration effectively and efficiently 48 court Registrars’ powers (or not) to reject documents Ethics, Professional Responsibility LinkedIn for Lawyers: Connect, New Zealand Law Dictionary, and the Lawyer, 3rd edition engage and grow your business, 2nd edition 8th edition 50 Law Foundation RRP*incl. GST: $130.00 RRP*incl. GST: $55.00 This week: $52.25 RRP*incl. GST: $99.00 This week: $94.05 ISBN: 9781927227824 ISBN: 9781927248638 ISBN: 9781927248218 52 NZLS CLE – CPD calendar 54 Lawyers Complaints Service LexisNexis books are part of the Research Suite Order your copy today. Visit www.lexisnexis.co.nz/store of LexisNexis SmartOffice, giving you back more For more information contact your Relationship Manager, time to do what matters most. or call Customer Support at 0800 800 986 25 56 classified Advertising Lawyering in Ashburton

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LawTalk is published by the New Zealand legal executives, Members of Parliament, News Points Law Society for the New Zealand legal pro- media, academics and others involved in fession. It is published fortnightly and has the legal services industry. Total circulation Memorial to Justice been published since 1974. LawTalk is sent ranges between 12,500 and 13,000 copies. Chambers to every lawyer in New Zealand who holds a An online version of LawTalk is available on The garden at the Auckland High Court will be current practising certificate. Lawyer num- the New Zealand Law Society’s website at developed as a memorial garden in memory of bers change over the year, but range from www.lawsociety.org.nz. This contains most former High Court Judge Sir Robert Chambers. 12,000 upwards. LawTalk is also sent to fur- of the articles included in each issue and “This is a fitting tribute to someone who ther recipients who include members of the a full pdf file of each hardcopy issue may served the law with distinction and was highly judiciary, Law Society associate members, also be downloaded. regarded among New Zealand’s legal fraternity,” says Justice Minister Amy Adams. environmental and social standard for ENVIRONMENTAL STATEMENT Sir Robert began practice as a barrister in 1981 responsible forest management. FSC® cer- and was appointed as a Queen’s Counsel in 1992. LawTalk is printed on Sumo Matte. This is an tification means that the paper used to pro- He was made a High Court judge in 1999 and an environmentally responsible paper. Forestry duce LawTalk meets FSC®’s requirements Appeal Court judge in 2004. He was appointed Stewardship Council® (FSC®) certified, it at all stages along the production chain. 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The wrapping may be composted. tionally recognised as the most rigorous Plain English a must An online criminal courts system must be accompanied by guidance written in “plain English” so that defendants clearly understand Placeholder for FSC the consequences of their pleas, a think tank EDITOR Certification has said in response to the Ministry of Justice Frank Neill · 04 463 2982 and judiciary’s vision paper. [email protected] The Centre for Justice Innovation says clear JOURNALISTS understanding underpins procedural fairness. Nick Butcher · 04 463 2910 “To achieve that in the online conviction and Established in 1869, the New Zealand Law [email protected] statutory fine system, the system and accom- Society regulates the practice of law in Kate Geenty · 04 463 2936 panying online guidance needs to be written in New Zealand and represents the interests [email protected] plain English and legal terms should be explained of lawyers who choose to be members. The Angharad O’Flynn · 04 472 7837 ext. 929 clearly,” it adds. (See www.lawgazette.co.uk/ powers and functions of the Law Society are angharad.o'[email protected] law/online-courts-guidance-must-be-in-plain- set out in the Lawyers and Conveyancers SENIOR DESIGNER english/5058775.article). Act 2006. As well as upholding the funda- Andrew Jacombs · 04 463 2981 mental obligations imposed on lawyers Wrongful convictions [email protected] who provide regulated services, the Law DESIGNER Should prosecutors battle to preserve convic- Society is required to assist and promote Daz Yang · 04 463 2993 tions gained from a drug lab that faked results? the reform of the law, for the purpose of [email protected] This question is explored in an ABA Journal upholding the rule of law and facilitating the ADVERTISING article entitled Defense lawyers say prosecutors administration of justice in New Zealand. Christine Wilson · 04 463 2905 have dragged their feet on redressing wrongs of  26 Waring Taylor St, Wellington [email protected] faked lab evidence (www.abajournal.com/news/  04 472 7837 WEBMASTER article/defense_lawyers_say_prosecutors_have_  PO Box 5041, Wellington 6140, Miranda Kaye · 04 463 2990 dragged_their_feet_on_redressing_wrong). New Zealand, or DX SP20202 [email protected] The question has arisen after veteran chemist President – Kathryn Beck COMMUNICATIONS MANAGER Annie Dookhan admitted in August 2012 that Geoff Adlam · 04 463 2980 Board – Andrew Logan (South Island) she had contaminated samples and faked test [email protected] Tiana Epati (Central North Island) results during her 8½-year career. PRINTING & DISTRIBUTION Tim Jones (Auckland) As a result, more than 20,000 drug convic- Format Print, Petone, Wellington Nerissa Barber (Wellington) tions could have been flawed. However, court ISSN 0114-989X (Print) filings show that just 1,700 or so defendants have Executive Director – Christine Grice ISSN 2382-0330 (Online) sought or received relief from their convictions. Unless it is clearly indicated, the views expressed in LawTalk are not to be taken as those of, or endorsed by, the New Zealand Law Society. No responsibility whatsoever is accepted by the New Zealand Law Society for 4 any opinion, information, or advertisement contained in LawTalk. 2 December 2016 · LawTalk 902

From the Law Society

It’s all about people

We are now approaching the Christmas-New Year break. I would like to wish LawTalk readers all the very best over the holiday season and hope that you all have a productive and fulfilling 2017. As we move towards Christmas-New Year, it is a time to celebrate with our people. For each of us, the people we celebrate with, how we celebrate and even what we celebrate will be different but we will have the people factor in common – end of year celebrations and special times with family and friends. Lawyering is very much a “people” profession. As lawyers, we are there for people, to help them with important parts of their lives such as setting out on new ventures, bringing old ventures to a close, deeply personal matters such issues with their family, work place or personal safety and of course, their freedom. The “people” part of lawyering is vital for our clients whether private or commercial. Equally, being there for each other is an important part of being a lawyer in New Zealand. We are a collegial profession. That is one of our strengths. In life, especially professional life, it is important to work to our strengths and so I encourage us all to work towards enhancing our collegiality. We all know that stresses and strains seem to be exacerbated at this time of the year. Combine the lead up to the holiday season with natural disasters and we find many of our colleagues having a really tough time. If you see someone who is struggling, remember the Law Society’s Practising Well material provides resources so that we can help our colleagues and also look after ourselves. Finding an appropriate way to help a colleague is not an easy task but looking for an opening that is appropriate and well-timed to ask “Is everything all right?” is a good start. You can then give them the contact details of where they can get help. As part of the Law Society’s Practising Well initiative, the Law Society has special arrangements with Lifeline Aotearoa, which has specialised counselling services. We also have arrangements with Business Mentors and Vitality Works. You may find some time over the holidays to find out how you rate on the Vitality Works online health assessment, which is at www.wellnessportal.co.nz/lawsociety/. So, remember, especially at this time cut each other a break, be patient, always be courteous and (mostly) it doesn’t hurt to be kind.

He aha te mea nui o te ao What is the most important thing in the world? He tangata, he tangata, he tangata It is the people, it is the people, it is the people

Kathryn Beck New Zealand Law Society President

5 LawTalk 902 · 2 December 2016 Our Profession, Our People

Our complex joint venture arrangements. Gold award Lyn Lim, a partner of Forest Harrison, has been Profession elected chair of Foundation North. Foundation for equal pay North is a community trust which grants approx- imately $40 million a year to community groups Simpson Grierson took home the Gold within Auckland and Northland. Ms Lim is on Award for excellence at the YWCA Equal Our People the boards of AUT University, Auckland Regional Pay Awards 2016, held in Auckland on Amenities Funding Board and Public Trust. She 3 November. is also a member of various committees of these Minister for Women Louise Upston Wellington barrister Noel organisations. She is a trustee of Asian New presented the award, and congratu- Sainsbury has been Zealand Foundation. lated the firm on achieving the very appointed an Acting Dis- rare honour of having a 0% pay gap trict Court Judge with a Dr Arie Rosen from Auckland University Law between men and women doing the jury warrant to be based in School has been awarded a $300,000 Marsden same job. Manukau. Judge Sainsbury Grant to undertake a study of how democracy Human Rights Commissioner Dr was sworn in on 18 Novem- influences some of the fundamental rules that Jackie Blue also congratulated the firm, ber in Wellington. Judge shape our economic lives: the private law rules saying there is a 12% pay gap across New Noel Sainsbury Sainsbury has practised in of contracts, torts and restitution. The study, Zealand. Based on current trajectories, the Wellington region since his admission in entitled A Law Beyond Democracy: The Insulation it will take a further 80 years to achieve 1985. In 1993 he went into sole practice as a of Private Law from Democratic Change, will pay equity between men and women barrister and has worked primarily in the area look at the political story behind the making of in New Zealand. of criminal law. Before moving to the bench, private law rules, emphasising the role played “We simply look at the relativities Judge Sainsbury was a member of the Wel- by courts, lawyers and legal academics in con- every time we hire people and set pay lington Crown Prosecution Panel although he trolling democratic legislation in this field. rates based on experience, seniority and predominantly acted as defence counsel. When performance. It is as simple as that,” appointed he was President of the Criminal Bar Dr Nicole Roughan has been awarded a says Jo Copeland, Simpson Grierson’s Association. Rutherford Discovery Fellowship for research Human Resources Director. entitled Jurisprudence without Borders: A Other finalists included Russell Michele Wilkinson-Smith has been appointed Pluralist Theory of Law. The Auckland University McVeagh, AMP and Sovereign. ▪ Crown Solicitor for Whanganui. She succeeds academic was one of 10 recipients of this year’s Lance Rowe who was appointed to the District award. Court Bench in April 2016. Ms Wilkinson-Smith graduated from Auckland University with an LLB (Hons) in 1993 and joined the independent bar in 2005. She has extensive criminal law experience, including 12 years as a Crown prosecutor and Welcome to 11 years as a criminal defence barrister. She the profession has been a member of the Crown Prosecution MURRAY Panel in Palmerston North since 2012. She has The New Zealand Law also been a faculty member of the NZLS CLE TINGEY Litigation Skills Programme. Society welcomes the following recently admitted lawyers to BARRISTER Former lawyer Abby Foote has been appointed the profession: to the board of Television New Zealand. A former Will commence practice Gambling Commissioner, Miss Foote is now a at the independent bar professional director. Wellington on 1 January 2017 Joshua Johnathan Harvey Nathanael Starrenburg has been appointed as Karl Taylor van der Plas Email: [email protected] a new member of the Takeovers Panel for a five- Phone: 021 704 159 year term, which began on 25 October. A director Tauranga of Harmos Horton Lusk, Mr Starrenburg special- Narissa Antonia Siemonek ises in domestic and cross-border mergers and Daniel Song acquisitions, private equity investments, equity capital markets, private securities offerings and 6 Our Profession, Our People

Mixing the law with marmalade

By Frank Neill

Wellington barrister Alisdair Ross fell somewhat by chance into an enterprise that has seen him and his partner Sally achieve international success. They make marmalade, and their particular recipes have won a series of medals at the World Marmalade Awards the last three years. In their first year at the championship, 2014, their marmalades – labelled Marmalada (www.marmalada. co.nz) – won a gold and a silver. In 2015 Marmalada won two golds a silver and two bronzes. This year, 2016, they won a further two golds, a silver and a bronze. “The world championships are held in Cumbria in the UK each year. There’s over 3,000 entrants worldwide. before we thought: ‘why don’t we go for ones which They’re from every continent you can think of. It’s like are a little more interesting’. the Olympics of marmalade,” Mr Ross says. “There were two savoury marmalades – one to go “It was really interesting in 2015. Because we won with cheese, because of the local cheeses in the north the five medals, I think we were the most successful of England, and one to go with pork, especially the pork artisan producer anywhere in the world, bar one from sausages that are a specialty in that area. So we did the UK. Certainly we have been the most successful those two and won gold with the tangelo and smoked entrant from Australasia on an ongoing basis.” paprika, which goes with pork, and silver with the tan- It all began around 10 years ago when they bought gelo marmalade with star anise.” a property in the northern Wairarapa. “We were very fortunate. The house was an old home- So, does making marmalade help stead and originally there was 27,000 acres with it. The with lawyering? house goes back to 1884. But there had been a house or “What I’ve found is that making marmalade gives me two before that, and they just had this huge area to choose a lot of time to think things through. a building site. The site has a fabulous microclimate. “So it’s quite beneficial. It’s good for problem solving “Unbeknown to us at the time, the homestead was and being creative with ideas, because things are just known locally for its citrus. We were inundated with ticking over in your mind. You’re not forcing your mind fruit,” he says. to focus purely on a particular problem and therefore So they began experimenting. At first, they were things can suddenly click. making a lot of fruit juice for themselves and people “It’s interesting. Judge Walker was giving his final who were staying. speech at the Porirua District Court recently and said Then Mr Ross began making quince jelly while his something similar. He said a lot of his ideas came when partner started playing around with marmalades. he was riding on a ride-on mower. I find it very, very “Sally said: ‘why don’t we go to the world cham- similar with marmalade. pionships’, which I thought was brave but agreed as “It’s a form of relaxation in many respects for your I thought it would be a bit of a laugh. So they began mind.” experimenting in late 2013. Despite it somewhat relaxing the mind, marmalade “We were very strategic with the 2014 marmalades,” making can be challenging work. Mr Ross says. “We reckon it takes about 120 hours to come up with “We looked at the competition. There was a series of different categories. Having not gone into competitions Continued on next page...

7 LawTalk 902 · 2 December 2016 Our Profession, Our People

each recipe. We come up with ideas and then we trial them. We taste. available at all, so I came to a crossroads We try various things, and then we say it could be better with this. – move into academia with archaeology “It’s not something you just boil up and say ‘that’s it, that’s fine’. or do something else. There’s quite a lot of science behind it really. “A lawyer who is now a QC in Wel- “When you look at commercial marmalades, you will find that the lington suggested I should do law. So I fruit content is generally between about 12 and 20%. You are doing ended up studying law at Victoria. exceedingly well to get over 20%. “All our marmalades are a minimum of 50% fruit, so we have far What attracted you to less sugar and pectin than traditional marmalades. law? “Our marmalades are creative and we’re also trying to get people to “Probably social conscience really … and use them far more creatively in cooking rather than simply straight on helping the underprivileged. toast. You can use them in cakes, desserts, and some are really good “I ended up working out in Porirua. I simply mixed with plain yoghurt or ice cream. A bar in Wellington is worked for what was then the Porirua using our kumquat and vanilla marmalade as the base for a cocktail. Community Law Centre on a part-time “We’re in a series of specialty shops right around New Zealand. basis and then developed my practice We’ve just come from visiting Australia where a large retail chain is in Porirua. interested in stocking our world award winning marmalades. And then “Probably about a year after I grad- we’re thinking of specialty places in both the United uated I was involved in quite a serious States and the UK potentially.” For those interested back injury, so I ended up going back in checking out the taste, a list of outlets is on the and doing a masters in international law Marmalada website. looking at the right of Bougainville to secede from Papua New Guinea. Creating a monster ❝ We’ve “That stimulated a real interest in “It’s more than a hobby. My partner Sally, who runs a created a Pacific peoples. What the thesis did was very successful research company in Wellington, says: open my eyes up to the social injus- ‘we’ve created a monster’ because we basically don’t monster, tices that occurred in the South Pacific have weekends now. because we in the past.” “One of the issues is getting enough fruit, especially One of these was “blackbirding”. kumquat and Seville oranges. basically “I’d been through university and “So in fact we’re putting in a Seville orange grove don’t have never even heard of it. It was very and a kumquat grove ourselves because we just can’t much like the American slave trade. source them,” Mr Ross says. weekends Ships were going up into the Pacific, Right now Marmalada is working on a seasonal project. now mainly Melanesia, and simply taking “We’re doing a special glaze for hams for Christmas for people, generally against their will or My Food Bag. We did it last year and used our tangelo under a total misconception as to what marmalade with star anise, but this year they came they were going for. back and said: ‘can you create one specifically for us?’ “They called it was ‘indentured labour’, “Where to? We don’t know. We don’t whether this but essentially it was slave trade from is something which we continue to develop or not. But up to now it’s primarily Melanesia into Australia. Also been really interesting. Germany wanted a source of labour for “We have also learnt a lot about setting up a small business in New its plantations in Samoa, because the Zealand and how poorly many businesses are run. You would not Samoan populace weren’t interested in believe some of the difficulties we have experienced, even with ele- working in the plantations. mentary things such as finding a reliable source of jars.” “Basically they were just taken. They didn’t know where they were going or Life in the law what they were being taken for, but they “I actually trained as an archaeologist before I did law, down in Otago,” were being taken to the sugar planta- Mr Ross says. tions in Queensland in very significant “When I came out [of university] I was working on site surveys, numbers.” surveying throughout the Bay of Plenty when they were putting the Mr Ross has been practising as a bar- kiwifruit in. Then I worked for what was then the National Museum. rister for some 20 years now. I went overseas for 18 months, basically travelling to archaeological “I’m a barrister. I do criminal, mental sites around the world. I went to South East Asia, the Middle East health and Youth Court, based primarily and Europe. at Porirua but also service the Wellington “I came back and the crash had occurred. There was just no work and Wairarapa region.” ▪

8 Our Profession, Our People 2 December 2016 · LawTalk 902

On the Move

Matthew Couch has joined the partnership of Wynn Williams in the Commercial In-house lawyer wins & Property team in the Auckland office. Matthew who is in the commer- major research award cial and property team in Auckland, specialises in Matthew Couch large scale acquisitions In-house lawyer Michael Cameron is the and disposals, commercial leasing, unit title 2016 recipient of the New Zealand Law developments and property financing. Foundation’s International Research Fellowship. Danny Tuato’o has been The lead legislation solicitor with the made a partner of Marsden Department of Corrections, Mr Cameron’s Woods Inskip Smith in research is entitled Realising the Potential of Whangarei. Danny works Autonomous Vehicles in New Zealand. in the commercial team The aim of the project, he says, is to under- where his practice com- take research into the options for reforming prises personal client, the law to facilitate the safe and successful property, commercial and deployment of autonomous vehicles in New Danny Tuato’o Māori law matters. Zealand. “The research will envisage the ideal sce- Sue Brown has established narios for autonomous vehicle use in New Sue Brown Solutions to Zealand,” he says. meet client need for prag- “It will investigate the ways that current matic, commercial and law may encourage or hinder this and iden- Michael Cameron ‘right sized’ solutions to tify how it could be amended to encourage excellent outcomes.” complex and challenging A graduate of Otago University, Mr Cameron was a solicitor with Anderson Lloyd issues in the regulatory, Lawyers in Queenstown from October 2001 to July 2004. government and corporate He moved from Anderson Lloyd to the Ministry of Health, where he was a senior Sue Brown arena. Sue has more than advisor in the Public Health Legislation Team for more than four years. He was then 25 years’ experience in the United Kingdom, an advisory lawyer with the Department for the Environment, Food and Rural Affairs Australia and New Zealand, as both a legal in London for almost three years before returning to New Zealand. practitioner and a senior leader in the regula- He was a locum senior solicitor with Maritime New Zealand for four months before tory sector. As a senior leader at the Financial moving to the Department of Corrections in March 2012. Markets Authority, she played key role in shaping The International Research Fellowship is New Zealand’s premier legal research and delivering FMA’s regulatory approach to the award. Valued at up to $125,000, it is awarded annually to enable an individual of Financial Markets Conduct Act. outstanding ability to undertake legal Continued on page 11... research that will make a significant contribution to New Zealand. This year’s award ties in with the new Law Foundation initiative, the Information Law and Policy Project, which was launched on 23 August. This $2 million research fund will explore and develop law and policy around IT, data, information, artificial intelligence and cyber issues to help build New Zealand’s digital capability and preparedness. ▪

9 LawTalk 902 · 2 December 2016 Our Profession, Our People

whom are women and three of whom New Chief Justice are men. “So it is one of the few superior courts with a 50-50 gender balance. for Cook Islands “Christine Grice [the New Zealand Law Society’s Executive Director] was the first woman judge of the Cooks Islands Sir Hugh Williams QC is the new Chief Justice of the Cook Islands. He and then Dame Judith Potter was the succeeds Tom Weston QC, who was Chief Justice for about 6¼ years second. and a Judge of the Cook Islands High Court for close to 11 years. “Sir Hugh has taken over from me as A former New Zealand High Court Judge, Sir Hugh is also chair of Chief Justice, and then there is Colin the Electoral Commission, a role he has held since 2009. Doherty and Patrick Keane. He was made a Master of the High Court in 1989, serving in that role “The High Court of the Cook Islands until 1993, when he left to work as a silk for about 2½ years. He was also comprises the lay magistrates, local then appointed a Judge of the High Court in 1995, where he served Justices of the Peace, who are selected until retiring in 2009. to sit as judicial officers. In Rarotonga He was appointed to the Cook Islands High Court bench in 2009. there’s about 12 and there’s others on In 2010, Sir Hugh was made a Knight Companion of the New Zealand the outer islands as well. In Rarotonga Order of Merit for services as a judge. it’s mainly women. I instituted a pro- Sir Hugh took silk in 1988, is a former President of the Manawatu gramme of getting a lot more women District Law Society and was Chair of the Law Society’s Courts and appointed to the extent that’s there’s Tribunals Committee from 1986 to 1989. now a majority. Being Chief Justice of the Cook Islands has been an “amazing expe- “As the name suggests, they are not rience”, Mr Weston says. lawyers. They are people who, as Chief “It teaches you to be a better lawyer, having acted as a judge as Justice, I considered would have the well. And you learn a lot about your own culture through operating brain power, the dignity of the office, in a dominant Māori culture. and the cultural dimension. Those were “You have to sit on some complex constitutional cases. The Cooks the three things I was looking for. I also Islands, unlike New Zealand, has a written constitution. set up a mentoring programme with the “And then there are some specific jurisdictions that only the Chief District Court at Manukau.” Justice has, dealing with discipline of the profession In addition to the High Court judges, and other such things. Also as Chief Justice, you are there are three judges from the New number two in the constitutional hierarchy, so if the Zealand Māori Land Court. They deal Queen’s Representative – the equivalent of the Governor- with land cases as well as with chiefly General – was absent I was the head of state. ❝ It teaches titles. “On several occasions, I had to perform all the roles of you to be a New Zealanders also sit on the Court of head of state, including chairing the Executive Council, Appeal. The President is David Williams signing legislation and I opened their annual festival better lawyer, QC. Sir Ian Barker QC is still sitting. He one year. That is one of the interesting dimensions of having acted has been a Judge in the Cook Islands for the role. some 30 years. Justice Douglas White “It was a great privilege to work with the New Zealand as a judge QC was appointed on 1 February this Māori Land Court Judges as well, because they make a as well year. Justices Barry Paterson QC and huge contribution in the Cooks. Judge Pat Savage was Bob Fisher QC complete the bench. telling me that at one recent hearing out on Aitutaki “I have been practising as a QC there was so much business that he was dealing with throughout, in Christchurch and a new land application every 2½ minutes. Auckland, and the job was just taking “That’s an extraordinary volume of work. There is a up more and more time and impacting on my ability notion that you go over there and sit under palm trees to be present in New Zealand to work as a barrister. and have a relaxing time. That’s far from the reality,” “I got to a point where I thought that I’d done enough Mr Weston says. and would go back to just being a barrister. “My last act as Chief Justice was to appoint two new “I think what finally told me that I really needed to judges. One was Patrick Keane, a retired High Court sort out whether I was going to be a barrister or Chief Judge from Auckland [and a former Law Commissioner]. Justice, I was cross-examining a witness in New Zealand The other was Jane Lovell-Smith, who is the Executive and at the same time on my cell phone on the lectern, Judge at the Manukau District Court. I was trying to deal with an urgent application from “The result of me leaving is that there are now six the Cook Islands. High Court Judges, rather than five as it was, three of “I thought, this really is trying to tell me something.” ▪

10 Our Profession, Our People 2 December 2016 · LawTalk 902

❝ I have spent all my life under a Communist regime, and I will tell you that a society without any objective legal scale is a terrible one indeed. But a society with no other scale but the legal one is not quite worthy of man either.” ― Aleksandr Solzhenitsyn First Editor of LawTalk

Havell Stephen-Smith was the first person. Judge Perkins said he could not Law Society,” Hon Doogue said. The title Editor of the New Zealand Law Society’s remember who that was. Secretary General of the Law Society was news sheet, which went on to become Judge Perkins was appointed a District changed to Executive Director during LawTalk. Court Judge in 1999 and a permanent the time Alan Ritchie was in the role. Employment Court Judge Mark Judge of the Employment Court in 2013. The current Executive Director, Christine Perkins contacted LawTalk following The nameLawTalk was put forward Grice, succeeded Mr Ritchie. publication of issue 900, which outlined by retired High Court Judge, Hon Tony “I was the person who put forward some of the history of LawTalk. Doogue. the name LawTalk,” he said. “I know Judge Perkins was one of three people This came after the New Zealand Law that because I got a letter from Mervyn on the first editorial committee of the Society produced its first newsletter, Rodgers in 1974, just after moving to publication, he said. At the time he was which at the time did not have a name, in Nelson from Wellington, telling me that a lawyer with Macalister, Mazengarb, February 1974. Mr Stephen-Smith asked they had chosen the name I had put up.” Parkin & Rose in Wellington. He would readers to suggest a name for the pub- Hon Doogue was a partner of Hogg become a partner of the firm a year later, lication, and a series of responses were Gillespie in Wellington before moving in 1975. received. to Nelson and joining Hunter Smith. Mr Stephen-Smith, who was employed Hon Doogue contacted the Law He served as President of the Nelson by the Law Society was also on the edi- Society after the publication of issue 900. District Law Society in 1984 and 1985 torial committee, along with another “LawTalk was created when Mervyn before being appointed to the High Court Rodgers was the Secretary General of the bench in 1986. ▪ On the Move

Shaan Ross has returned Beth Smith has joined from maternity leave to Norling Law in Auckland as establish Statera Legal, a solicitor. Beth has worked a virtual provider of legal in litigation departments of assistance services to law law firms in Auckland and firms and legal practition- Dublin since 2007. She has ers. With over five years’ experience in general com- experience as a commercial mercial litigation and an Shaan Ross solicitor in both Wellington Beth Smith interest in litigation involv- Melissa Gibson Renika Siciliano and Perth, Shaan provides services of a paralegal ing liquidations, bankruptcies, and receiverships. Melissa Gibson (Ngāiterangi) has been and law clerk nature on an as when needed basis. Beth also has experience in debt litigation and appointed a director of Hamilton firm McCaw enforcement of debt. While studying and work- Lewis and will take up the role on gaining Fay Hughes has been ing part-time in various law firms, Beth played approval to practise on own account. She will appointed an associate for the New Zealand Women’s Hockey team, lead the asset planning team on her return to of Harmans Lawyers in competing at two Olympic Games and two work following the birth of her second child, Christchurch. Fay provides Commonwealth Games, retiring after winning a Blake. Renika Siciliano (Waikato-Tainui, Ngāti specialist legal advice on all Silver Medal at the 2010 Commonwealth Games. Maniapoto) has been appointed the firm’s man- family law matters includ- She stays involved in hockey through work on aging associate. Renika has experience in Treaty ing separation, relationship a number of committees at the International settlement work, workplace law and relationship property, domestic vio- Hockey Federation. property and will manage the firm’s workplace Fay Hughes lence, surrogacy and care law and relationship property teams. of children disputes. Continued on next page... 11 LawTalk 902 · 2 December 2016 Our Profession, Our People

Two Cleary Prize winners

Auckland lawyer Johanna McDavitt and published in LawTalk 891 (1 July 2016). Josh Pemberton, who is studying for A solicitor in the competition and an LLM at Harvard University, are the regulatory team at Simpson Grierson joint winners of this year’s New Zealand in Auckland, Ms McDavitt plans to study Law Foundation Cleary Memorial Prize. towards and LLM in the United States Johanna McDavitt Josh Pemberton Mr Pemberton authored the acclaimed next year. research report entitled First Steps: She aims to explore the New Zealand The Experiences and Retention of New government’s decision earlier this year a more ‘just’ Aotearoa,” she says. Zealand’s Junior Lawyers. A summary not to criminalise anti-competitive Mr Pemberton was a clerk for Justice of his research, which was funded by cartel conduct. Her research will look William Young from February 2015 to the New Zealand Law Foundation, was at whether cartel conduct should be January this year. Before starting at punishable by criminal sanction or Harvard, he undertook several months of whether the current civil penalty regime voluntary work in Myanmar with Justice is effective at deterring cartel conduct. Base, an international trust, on a project Ms McDavitt is a member of Simpson to improve public access to courts. On the Move Grierson’s Pride Network, and was part When he left Nelson College, where he of the group responsible for the firm was dux, he had no intention of being a becoming New Zealand’s first Rainbow lawyer. Physics and mathematics were Tick certified business. She has also to the fore when he began university begun an informal network of young study, but he took a first year law paper woman lawyers in Auckland who aim “out of curiosity”. to do something about the systemic and He found that he “quickly connected unconscious biases that get in the way with law” and realised that it would give of women in the legal profession. him tools to engage in issues he was She is a leader of JustSpeak, a national interested in and also prepare him for Wayne Pearson Stephanie Lau network of young people speaking up people-oriented work. That aligned with and speaking out for better criminal jus- his interest in community engagement tice policy in Aotearoa New Zealand. As and social service. well as being on JustSpeak’s national Mr Pemberton studied at Otago leadership group, she is also the national University, graduating LLB (first class research co-ordinator. honours and top of his graduating She currently leads a JustSpeak pro- class) and BA in Economics, Politics ject that aims to explore the experiences and Philosophy. He was nominated of people upon their release from prison, for the prize as the most outstanding Nicole Warner Christina Lee using a video game presented from a undergraduate across the university. Glaister Ennor has promoted four staff. Wayne first-person perspective. “After graduating [LLM] I hope to Pearson has been made a consultant of the firm, Ms McDavitt says she wants to “con- combine a career at the New Zealand Stephanie Lau a senior associate, and Nicole tinue speaking up and speaking out to bar – preferably focusing on public and Warner and Christina Lee associates. make the legal profession a more wel- administration law – with part-time coming and inclusive place. teaching and research work. James Donkin has joined “At the same time, I want to con- “In particular, I aspire to play an ongo- Rice + Co Lawyers as a tinue my work with organisations like ing role in conversations about the legal senior associate. James JustSpeak. I want to drive positive profession,” he says. specialises in complex change to our criminal justice system The Cleary Memorial Prize is awarded regulatory litigation. through the development of princi- in memory of Sir Timothy Cleary, past Before joining Rice + Co, ple-driven and evidence-based public President of both the Wellington District James spent seven years policy. and New Zealand Law Societies and a at Meredith Connell, where “I want to be an advocate for those Judge of the Court of Appeal. This prize, James Donkin he conducted litigation on who otherwise have no voice – not just worth $5,000, is awarded annually to a behalf of the Commerce Commission and other at an individual level, as lawyer for crim- young barrister or solicitor who shows regulatory agencies, and prosecuted jury trials inal defendants, but at a systemic level, the most future promise in the legal as a Crown Prosecutor. advocating for changes that will create profession. ▪

12 2 December 2016 · LawTalk 902

Helping lawyers and their families

By Frank Neill

The Law Society’s Practising Well partner Lifeline Aotearoa has been helping lawyers and their families since the two ▲ The then New Zealand Law Society President Jonathan Temm signing the Memorandum of organisations signed a Memorandum of Understanding on 31 August 2012. The MoU signing took place via Skype and the then CEO of Understanding on 31 August 2012. Lifeline, Jo Denvir, can be seen on the monitor to the right of Mr Temm signing the MoU. At 3pm on that date, Lifeline Aotearoa became the first organisation to join the “Not sure who I talked to tonight, but November. Law Society as part of the Practising Well she literally saved my life. I’m feeling much “Calls were up 33% on normal levels initiative. Since then, Business Mentors and better”. This is just one quote from an anon- between midnight and 3am the morning Vitality Works have also become partners. ymous caller that Lifeline received. of the shake,” Ms Greenfield toldLawTalk . In the four years and three months since “We are doing all we can to ensure the then, Lifeline has helped a good number of Service under threat survival of this vital service and we hope lawyers. Just how many lawyers and family Funding cuts have meant that Lifeline’s that it will be available for future genera- members of lawyers is not known. This is service is under significant threat, however. tions,” she adds. because Lifeline does not keep statistics People visiting the organisation’s website, in relation to one of its services. www.lifeline.org.nz, will see this dramatically Lifeline and the Law Society Lifeline offers both a free telephone ser- stated on its home page. The services Lifeline provides under the vice and a counselling service, which can “Without your help, the phones will go Memorandum of Understanding with the be either face-to-face or via Skype. dead,” the headline reads. Law Society is summed up in the Practising It does keep figures for the counselling Unless Lifeline can attract public support, Well section of the Law Society’s website. service, and six lawyers have used this in it will have to close by June 2017. That says: the last two years. However, it does not That is because it has lost a National “Lifeline Counselling has a team of quali- keep statistics in relation to the telephone Telehealth contract it previously held. That fied professional counsellors experienced in service. People calling in do not necessarily has left the organisation needing to raise working with clients across a broad range tell the telephone counsellors what their $2.6 million annually. of issues. occupation is. Under the “without your help, the phones “Our high quality confidential service can The Law Society was given some indi- will go dead” is a “donate now” button. help with day-to-day issues such as: stress, cation of lawyer use of this service earlier Lifeline would welcome donations, and anxiety, burnout, depression, relationship this year, when a Lifeline staff member told would also welcome any bequests or issues, grief, trauma and addiction. us that anecdotally, around two lawyers a philanthrophy that people may wish to “All our counsellors are qualified to week were using the telephone service. provide. Masters level and are members of the NZ This telephone service is available 24 More information about endowing Association of Counsellors. hours a day, seven days a week. Lifeline Lifeline where using the “donate now” “For New Zealand Law Society members answers calls from people dealing with a button is not relevant is available from the and families we are offering a discounted wide range of issues including relationship appeals manager, Debbie Greenfield, phone rate: $110 based on a normal 60 minute problems, work issues, stress, grief, bully- 09 909 8754, email [email protected]. session. ing, financial concerns and abuse. Callers While funding has gone down, demand “Currently this face-to-face service is are often stressed, anxious, have low mood, for services has increased. Currently 18,000 only available in Auckland and Hamilton. are confused, lonely or feeling hopeless. people a month are using the service, up “Skype face-to-face counselling applies Around 50% of calls involve risk of self- from 15,000 a month in 2015. throughout New Zealand. harm, suicide or harm to others. That is an A dramatic increase in calls followed “Please contact Lifeline Counselling on area of particular relevance, as Lifeline’s the 7.8 magnitude earthquake that struck [email protected] or phone 09 909 expertise is in suicide prevention. New Zealand at 12.02am on Monday 14 8750.” ▪ 13 14 2 December 2016 · LawTalk 902

Thank you all for giving me such a rich experience

By Frank Neill “We have to find out why blameless babes become criminals. Writing as a lawyer who has read many probation reports I have no doubt that their life experience has been his is my final issue as Editor of LawTalk. the cause. Society creates criminals, society must look at Having looked after “my baby”, first as assis- the conditions that create them.” tant Editor then as Editor for more than 11 years, In her speech, Dame Sian made a series of suggestions I am going to very much miss LawTalk. that could be explored to enhance our criminal justice Perhaps even more than that, I am going to miss system. Tthe very many of you who have helped me, and talked to me, One aspect that she particularly focused on was exploring and provided me with so many learnings over the years. I better options than prison if we, as a society, wanted to have very much enjoyed my contact with the profession (in really make our communities safer. the wider sense of the word “profession” – lawyers, mem- “Better communication about why alternatives to prison bers of the judiciary, coroners, legal academics, non-lawyer are in the public interest is, however, clearly necessary to staff of law firms, law students, Law Commissioners and counter community skepticism,” she said. their staff, Ministry of Justice staff and people contracted “I do not take the view that there is no place for prison. to work within the legal world). Thank you all very much Nor do I think that the only ethical end of criminal jus- for all your help, friendship and collegiality. Your input has tice is rehabilitation. I accept that retribution is a proper made my role highly rewarding. Perhaps this is why I have response for serious crime. Nor do I want to suggest that worked longer at LawTalk than any other position. other sentencing reforms and initiatives we have tried ... I have also really enjoyed working with the very good are not worth trying … staff we have at both the New Zealand Law Society and “ … But all the evidence and all the informed opinions NZLS CLE Ltd. seem to point to the futility of believing that the causes In my time at the Law Society I have experienced a great of crime can be addressed by penal policy and criminal many highlights. Every one of you who I have interviewed justice processes … Penal policy is largely irrelevant to has been a highlight for me. I have really enjoyed these reduction of crime and to making our communities safest.” interactions and have learned a great deal from you all. As New Zealanders, “we all need to take responsibility A whole range of other highlights are in my memory for understanding the options and for buying in to the banks, and I will mention a few of these. strategies that work, rather than knee-jerk responses. Those strategies require social change, not demands for Blameless babes easy quick fixes now.” The one I will mention first is Dame Sian Elias’s “Blameless If pushed to identify some strategies that needed to be Babes” speech. The Chief Justice gave this Shirley Smith considered, Dame Sian said she would opt for effort in Address on 9 July 2009 in Wellington. five principal ways: community education, intervention The title for her address, Dame Sian said, came from a strategies for those at risk, better support for probation, letter to the editor of a newspaper that Shirley Smith had increased attention to mental health and substance abuse, written. That letter said: and a frank policy of being prepared to reduce the prison “To provide only a prison at the bottom of the cliff is population by management. not a solution. Criminals will just go on falling into it, at She went on to outline each of these in more detail and great cost to the community. acknowledged that the fifth one “may be controversial”. 15 LawTalk 902 · 2 December 2016

Dame Sian concluded by quoting Shirley on the paper Miscarriages of Justice by former High Court Smith again: “To reduce crime it is nec- Judge Sir Thomas Thorp. essary to identify what makes criminals New Zealand should establish a specialist and fully inde- and deal with the causes … This is the only pendent authority to investigate miscarriages of justice, long-term, effective way to help victims, Sir Thomas said. to reduce their numbers. Punishment does The frequency of miscarriages of justice have been not work.” underestimated he said. (Dame Sian’s full speech is at www. There was a significant degree of commonality among courtsofnz.govt.nz/speechpapers/Shirley%20 the countries studied as to the causes of miscarriage of Smith%202009%20lecture-Blameless%20 justice. These include defect in police and prosecutorial Babes-9%20July%202009.pdf/.) conduct, poor lawyering, faulty eyewitness identification, faulty forensic procedures and the use of prison informants. Practising Well Dame Sian Elias The independent authority should seek means to reduce This same year, 2009, saw the Law Society the existing “ethnic imbalance” of claimants, have the launch its Practising Well initiative – another highlight long-term aim of identifying the principle of my time with LawTalk. In fact, on the same two-page causes of miscarriages of justice in New spread that the magazine featured Dame Sian’s address Zealand and recommend ways to minimise – LawTalk 734, 3 August 2009 – it also featured an article their occurrence, Sir Thomas said. entitled “Depression in the profession”. Responses to that A less heralded work was Professor Tony article, and an earlier article entitled “Lifting the veil of Taylor’s The Prison System and its Effects, secrecy – depression in our profession” (LawTalk 732, 29 Wherefrom, Whereto and Why. June 2009) led to Practising Well being developed. That work argued that New Zealand should establish a penal commission. The Healing and restoring Emeritus Professor of Psychology at Victoria Another highlight for me has been the development of University said that New Zealand needed a more “healing” and “restorative” approach within our such an independent authority, reporting criminal justice system. to Parliament. That has included initiatives such as Restorative Justice Greg King The penal commission should look at and the development of specialist courts, the principles of punishment and rehabil- including the Special Circumstances Courts, itation, and come up with recommendations, Professor Drug and Alcohol Courts, Family Violence Taylor wrote. Courts and Ngā Kooti Rangatahi – mar- “All of us in this country have a common interest in ae-based youth courts – which received understanding the story of penal reform in order to see two awards this year. where it might go to next and how we might avert some Shortly before his tragic death in 2012, of the tragic consequences of the present high rates of and top criminal defence lawyer Greg King rigid styles of imprisonment, without losing the vision we presented a paper that argued for a more all have for a much gentler and more inclusive society,” “healing” approach in criminal justice. Parole Board Chair Judge David Carruthers said in the pref- His paper, entitled A New Kind Of Court, ace to Professor Taylor’s book. “This book is a remarkable was written while he was in the United contribution towards achieving those ends.” States on an Eisenhower Fellowship. An article on the launch of this book ran in LawTalk 716 A New Kind Of Court made the case Tony Taylor (15 September 2008). for establishing what Mr King named a People currently are calling for the establishment in “Management Court” in this country. He described it as a New Zealand of a Criminal Cases Review problem-solving court which would have “wide powers to Commission (see, for example, Nigel provide an unprecedented level of judicial oversight and Hampton QC’s review of Wrongful Allegation management of offenders in the community, including of Sexual and Child Abuse, LawTalk 900 (4 those who are re-entering society after being released November 2016), pp34-35). from prison.” It would, Mr King said, “save us a fortune as it would University of crime be a real and viable alternative to imprisonment in a large Principal Youth Court Judge (now Children’s number of cases”. Commissioner) Andrew Becroft was I still hope that Mr King’s dream has not died, and would reported in the very next issue, LawTalk dearly love to see a legacy to this great lawyer in the form 717. Mr Becroft was speaking on ideas such of a “new kind of court”. as sending young people to prison was effectively enrolling them in the “univer- Miscarriages of justice Andrew Becroft sity of crime”. One of my early highlights was writing an article in 2006 How to turn a young offender into an adult 16 criminal … in just 10 steps was the title of his paper, presented The improvements have been many, at the Otago District Law Society mid-winter conference ❝ One highlight and include the development of the Early on 30 August 2008. Mr Becroft would present a similar for me has been Resolution Service. paper at the Children and Law International Conference in Italy in September 2009 (see http://spotidoc.com/doc/228745/). the continual One law society improvement That brings me to another highlight. This Continual improvement began at the Law Society’s Council meeting My first day at the Law Society was 18 April 2005. The the Law Society in September 2006. The Auckland District LawTalk with that cover date led with an article entitled “Bill has made over Law Society suggested the possibility of in last minute delay”, referring to the legislation that would a “one society” model. Until then, the become the Lawyers and Conveyancers Act 2006 (LCA). these last thinking had been that post-LCA the New When it came into effect in 2008, the LCA fundamen- eight years Zealand Law Society would be a legislated tally altered the regulation of lawyers in New Zealand. entity and the former district law societies One highlight for me has been the continual improvement in regulating would each incorporate. the Law Society has made over these last eight years in lawyers An extra meeting of the Law Society regulating lawyers. Council was held in December 2006, and That includes lawyer registration, the Law Society this meeting unanimously adopted, in prin- Inspectorate and the Lawyers Complaints Service. In my ciple, the “one society” model. Under this view, we now have a significantly enhanced regulatory model, the district law societies would all framework for lawyers compared with the one existing merge into the New Zealand Law Society when I joined the Law Society. This is thanks to the many and would then operate as branches of people in the profession who have been working in this the Society. area, including Law Society staff, the lawyers who volunteer The New Zealand Law Society became the their time to assist, as members of standards committees only statutory law society in New Zealand for example, and also the lay members who help us. as of 1 February 2009. This is something that everyone involved and, indeed, the whole profession, can be justifiably proud of – par- Utilising technology ticularly the fact that the whole area of lawyer regulation Another debate that has been occurring just keeps improving. throughout my time with the Law Society 17 LawTalk 902 · 2 December 2016

has centred on what technology can potentially provide He said he questioned whether the legal aid system was the practice of law. consistent with fundamental rights, as provided in the “Artificial intelligence has big implications for the law” New Zealand Bill of Rights Act 1990, for example. was the title of an article in LawTalk 685 (23 April 2007) “The amount of money spent deciding whether legal – yes, way back in 2007. aid should be granted would be better spent on legal rep- The article quoted Professor Zeleznikow, a computer resentation. scientist at Victoria University in Melbourne, brought to “The irony is that the money saved by not granting legal New Zealand by the Ministry of Justice. aid is very often overtaken by corresponding, if not greater “Artificial intelligence, fuzzy logic and such may be all costs being incurred elsewhere,” Sir Andrew said. very well in the circuits of a dishwasher, but surely there’s “In respect of legal aid and access to justice generally I no place for them in the practice of law or in legal deci- notice that the Chief Justice of Canada has very recently sion-making,” the article said. expressed similar concerns at a meeting of the Canadian “This is an argument people may have Bar Association. It seems to be an issue that is causing been able to sustain a few years ago but now difficulties in most modern democracies. the prospect of a future providing accessi- “I suggest we should lead the way by re-examining how ble, credible and inexpensive e-justice is legal aid should be delivered.” a concept almost impossible to dismiss.” Sir Andrew’s speech is at www.lawsociety.org.nz/news- and-communications/latest-news/2012/justice-andrew-tippings- Access to justice final-sitting-speech/Final_Sitting_Address_-_17_August_2012.pdf. Access to justice has been high on the The legal profession must take an active part in under- agenda during the last decade. standing the nature of the problem of access to justice There are so many aspects of access to and in striving for the solution. justice that I could touch upon, but my aim Justice Helen Winkelmann stated this when delivering here is not to write a book. I will, therefore, the 2014 New Zealand Law Foundation Ethel Benjamin focus on just two – both featuring members Commemorative Address on 7 November. of the judiciary. Sir Andrew Tipping Unless there is better access to justice, “we will live in The first is Sir Andrew Tipping’s address a society where the strong will by any means, including at his final sitting on 17 August 2012. violence, always win out against the weak,” the Chief High New Zealand needs to re-examine how legal aid should Court Judge said. be delivered, Sir Andrew said. “What we need is a proper “For centuries judges and lawyers have worked together recognition of the fundamental rights and values that are to ensure that all can enjoy the benefit of the protection at stake … We can do this without sacrificing the need for of the law, including those who are vulnerable by reason efficiency and economy.” of limited means, limited education, their minority status

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18 2 December 2016 · LawTalk 902

or their gender. system hostile to Māori, academic says”, “As I reflect upon developments within LawTalk 899, p29). the civil justice sector I see the weakening of There is so much to be done in New the exclusive and central role that lawyers Zealand in relation to our indigenous have played in our courts.” peoples and their culture, so much that If this continues, Justice Winkelmann I could write volumes on this, and I have said, it would be not just to the detriment no Māori lineage whatsoever. of the profession, but also to the detriment That includes, ideally, taking a look at our of civil justice in society. entire legal system with a view to what we Her address is at https://otagowomen can learn from Māori, and how we can best lawyerssociety.files.wordpress.com/2014/05/ reshape our legal system to better meet the helen-winkelmanns-2014-address2.pdf. needs of us all. Māori perspectives could, if Much remains to be done. Mary Cranston we developed better mechanisms to hear the voice, help us deliver a significantly Diversity advanced justice model for New Zealand Diversity in the profession has been a recurring theme – one that would not only better meet the throughout my time at the Law Society, and this is an ❝ Māori needs of all Aotearoa’s citizens, but could area where once again there have been a series of very perspectives also be looked to by people in other coun- important initiatives. tries as a model they could aspire to. Of the many highlights, one that stands out particularly could, if we I have benefitted greatly from my contact was interviewing Mary Cranston, who was named one developed with so many in the profession, including of the two “best law firm leaders in the United States” by those who have served in various ways Of Counsel magazine (see LawTalk 839, 11 April 2014). Ms better with the Law Society. Cranston was the first woman to lead a Global 100 law firm. mechanisms The five Presidents who have been at Law firms that “get it right” in terms of having good the helm in my time at the Society have number of women partners are going to have a “significant to hear the all taught me a great deal: Chris Darlow, competitive advantage”, Ms Cranston said. voice, help John Marshall QC, Jonathan Temm, Chris “Law firms absolutely need qualified women, because Moore and Kathryn Beck. if they don’t, there’s going to be a real fall off in the talent us deliver a The same has been true of all the District available to them. significantly Law Society and branch Presidents, elected “We need to get women up into leadership ranks so council members, as well as the very many that young women will be attracted to it.” If they see role advanced people who volunteer their time to serve models [in leadership], it becomes a much easier path justice model both the profession and the people of New than it is today. Zealand. These include standards commit- “On the other hand, I think that if law firms don’t adopt for New tee convenors and members I have already policies that are going to make their women as successful Zealand mentioned, as well as many others. as possible, they are going to start not being able to recruit So, to the profession and the Law Society women. And if 60% of the law graduates are female, it’s staff I have worked with, thank you all very going to be a problem for them. much for making my time here such a rich “We are really getting close to a tipping point where experience. There are too many of you for women in business and law are going to be the majority, me to contact individually, but you are wel- and it behoves us to get this right.” come to contact me at [email protected]. Diversity covers much more than gender diversity, too. Although I am leaving my role at LawTalk It also includes ethnic and cultural diversity, and a number Editor, I will still be working part-time for the of other areas as well – including LBGTTI, age and those Law Society’s Regulatory team next year. ▪ of us who are differently abled. Being Māori in New Zealand A very recent highlight was reading the information sent me by Otago University about what Professor Jacinta Ruru said in Legal Accounting Bureau · Save time and money Kathy Kell her inaugural professorial lecture. provides comprehensive, · Always know your trust account [email protected] is balanced and your month end The New Zealand state legal system has accurate, efficient and timely certificates are filed on time Ph 09 444 1044 management of solicitors’ · Our service is completely secure Fax 09 929 3203 for the most part been hostile to Māori, trust accounts. and confidential www.accountingbureau.co.nz Professor Ruru said. · Trusted professionals with over Outsourcing the management 20 years’ experience “This is why the learning of law for Māori of your firm’s trust account · 62 law firms currently use our Powered by juniorPartner. students can be hard, and, the practice of has many advantages. services Practice Management software you can trust. law for Māori can be tough.” (See “Legal 19 LawTalk 902 · 2 December 2016

▪▪Once you’ve written your profile you can on your homepage and click ‘edit profile’. go to your account settings and click You’ll see a URL link under your profile the ‘view profile as’ button, to see how picture, click the pencil symbol next to your profile looks to either the general · TIPS · the URL to edit. URLs are available on a public or your connections. first-come, first-served basis, so if you ▪▪LinkedIn’s default setting is to alert to ‘yes’ if you have a new job or new have a common name you might miss your network each time you update skill that you want to share. out on the most straightforward option. your profile. If you want to tinker with ▪▪LinkedIn generates a URL for you, but ▪▪If you’re looking to expand your network your profile without telling the world, it’s generally not that user-friendly and or move into a new sector, you could go to your profile tab. In the right hand has a few random numbers or letters in look to join or set up a new group on column is a box with the headline ‘Notify it. You can customise it into something LinkedIn. “It gives you a reason to reach your network?’ slide the tab over to easier to share, like www.linkedin.com/ out to people in the sector and get them ‘No’. Remember to slide the tab back in/yourname. Hover over the profile tab to join,” Ms Hodgson says.

20 2 December 2016 · LawTalk 902

How lawyers can benefit from LinkedIn LinkedIn is the world’s biggest online networking site for professionals. We take a look at how lawyers can benefit from using the business networking site. By Kate Geenty.

❝ Lawyers What is LinkedIn and why Before you get started just owe it should you use it? Before jumping on LinkedIn you have to be clear about Think of LinkedIn as Facebook for pro- to them- what you hope to get out of being on the site. Ms Hodgson fessionals (without the LOLs and selfies). selves to suggests you should map out what you want to achieve It has 467 million users globally, with by thinking about who you want to engage with, and more than 17 million new users signing understand how; what topics you want to talk about or comment up in the last quarter. The online busi- LinkedIn on, and which areas you want to build your profile in or ness networking platform is a place to generate work from. This will help you build a strategy network, build your brand and your pro- and how it about what you should be posting or sharing in order file, share ideas, look for work, recruit works and to build and nurture your connections. new employees, engage with current contacts, reconnect with old colleagues how they Building your profile and clients, or make new connections could use it Once you’ve signed up, the first thing you need to do with prospective clients or colleagues. is write your profile. This is not a time for a once over Legal marketing specialist, and author lightly approach, as your profile is basically your busi- of LinkedIn for Lawyers: connect, engage ness card and CV on the site. and grow your business, Kirsten Hodgson, approaches “You do need to spend time upfront, or work with LinkedIn from a business development and marketing someone upfront, to get your profile right, because how angle. much is your personal brand worth to you? I think “It’s a way of staying top of mind with people when lawyers put a lot of emphasis on their personal brand,” you can’t get out from behind your desk,” Ms Hodgson Ms Hodgson says. says. You might be suspicious about how valuable social Not including a photo, or not filling out your profile media is, but before dismissing LinkedIn as an unnec- in detail can actually be damaging. essary distraction, Ms Hodgson says you should at least “If prospective clients go to LinkedIn and you only look into it. have a skeletal profile, you’re just going to look like you “Lawyers just owe it to themselves to understand don’t really know what you’re doing. If you’ve been LinkedIn and how it works and how they could use it recommended along with a couple of other people, so they can make an informed choice about whether people are likely to look before they call you, so you or not it is for them. But just ignoring it because you could be losing work that you don’t even know is out think it’s a waste of time based on a lack of knowledge there because you have a terrible online presence.” doesn’t really cut it.” She says the online networking platform is a tool that Networking and engaging works well with many lawyers’ personalities. While connecting online with people you already know “Often they don’t feel comfortable selling. They like is an important tool, James Greenland, a legal recruit- being behind their desks. It’s a way of networking, comment consultant at Robert Walters in Wellington, says municating, meeting people and positioning yourself LinkedIn’s real value is its ability to connect you with without getting out from behind your desk. You’re not new people who sit at the edge of your existing network. selling directly by saying ‘please give me work’. You’re “It allows you access to all these people you didn’t selling by demonstrating value, by having conversations even know existed previously. It’s not who you know, with people and by being helpful.” it’s who people you know know.”

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Once you’ve reached out to people on LinkedIn, the a lot of the value comes from the conversations and next step is to engage with them. You can do this in from building relationships one by one and not using a variety of ways: sending them a message, sharing, stock-standard text, and the only way to really do that liking or commenting on a post published by a contact, is for you to do it personally.” or writing and publishing your own content. Before doing any of those things, Mr Greenland says How much time will it take up? you need to ask yourself if what you’re about to do is This might sound like it will chew up a lot of your val- of value to your network, or if it’s just likely to clog up uable time, but it doesn’t have to. Spending around an their newsfeed. hour a week on LinkedIn should be enough to make it “We live in an age of information overload – it’s the worthwhile, Ms Hodgson says, “as long as your time is flipside of the benefit of media 2.0. We are all produc- well spent and its devoted to things that will help you ers now, not mere consumers, and the easiest way to achieve your goals.” remain in the noisy crowd unseen is to produce valueless That hour doesn’t need to be spent in one block. content,” Mr Greenland says. Popping online for a few minutes a day could be a To determine if what you’re about to post is worth- more effective approach. while Mr Greenland suggests asking yourself a few “On an ongoing basis it’s really looking at ‘is LinkedIn questions. “Who are you writing to? Who are your a tool I can use to do some of the existing things I do readers likely to be? Who do you want your readers more effectively?’ Could I do a five-minute update here to be and why?” that will help me improve this talk I’m going to do, or You need to get the basics right too. “Quality isn’t just we’ve got this RFP worth $1 million coming up in three in the value of the content you are creating or sharing,” months, is there something I can do on LinkedIn now Mr Greenland says. “Spelling and grammatical mistakes, to position myself and the firm prior to that coming or just plain bad writing, can actually damage your out? I think it’s about thinking a bit more holistically.” reputation or people’s perception of you, more than publishing good copy can enhance it.” How can you measure the value of Keep in mind that it’s not all about pushing your own being active on LinkedIn? barrow. “You don’t want to come across as only being It is easier to measure the value of some things than interested in yourself. If you’re pushing your own con- others on LinkedIn. “For example, if you publish to tent all the time people notice that,” Ms Hodgson says. LinkedIn you can see really easily how many views “It’s about supporting your clients and your pro- you’ve had, who has engaged with that content and spective clients and your colleagues, by commenting, where they’re from. So you can have a look at whether sharing and liking their content.” your content is resonating with the right people and tweak based on that,” Ms Hodgson says. Can you outsource? Working out the value of your connections can be You can outsource components of what you do on harder, unless of course there is an immediate payoff, as LinkedIn – like getting help with your profile, for exam- was the case for one of Ms Hodgson’s clients. The client ple – but you should be wary about outsourcing the wrote a newsletter on what was happening in the film engagement elements because that’s got to look and industry in the United States and how film producers sound like you, Ms Hodgson says. and TV people in New Zealand could benefit from it. “If there are people that you know well they’re going to He published it on his website, and then Ms Hodgson know it’s not your voice. I think there’s often a tendency encouraged him to publish it on LinkedIn and share it amongst lawyers, certainly in bigger firms, to want to with the site’s New Zealand film industry group. outsource and get their marketing teams or their PAs to “So he did and got a few comments, and then a few do it and yes, you can do a certain amount, but actually weeks later he got a call from a lady who had commented who was putting together a production and needed some legal advice, and she had literally only come across him because he’d posted in the right place

conveymaestro cloud based conveyancing it. It’s the cloud based conveyancing at the right time.” As with more traditional networking, software that’s got everyone talking not every new connection will reap a reward. If you’re struggling to see if conveyit Maestro is an automated cloud based conveyancing system designed by New Zealand Lawyers for New Zealand you’re getting any benefit from being Lawyers Professionals and Conveyancers on LinkedIn, Mr Greenland suggests giving it some time. “Come up with a strategy, carry it out www.conveyit.co.nz 0508 33 22 88 for a year, then check your bottom line to see if there’s a difference.”▪

22 Access to justice for indigenous peoples

Dr Valmaine Toki, Waikato University and Expert Member of the United Nations, co-ordinated a highly successful round table comprising some of the world’s leading advocates for indigenous justice on 26 October. Supported by the New Zealand Law Foundation and in association with the Māori Indigenous Governance Centre and Griffith University, Australia, the round table of distinguished academics, met to discuss systematic challenges within our legal system that create hurdles for indigenous peoples to gain access to justice. The 10 members of the round table all contributed individually researched topics from their areas of expertise covering aspects of law that included criminal justice, the environment, sovereignty, legal standing for indigenous peoples, education, health and Treaty issues, Dr Toki says. “Contributors included Professor Elena Marchetti, from the Griffith Law School, ▲ Protestors at Oceti focus for Kiri Toki and Kingi Snelgar, timely given Kingi’s Australia, who presented her research on Sakowin Camp at recent return from Standing Rock in North Dakota where the need for justice programmes to be Standing Rock, North the Lakato peoples are struggling for the recognition of appropriately researched and evaluated Dakota; a multi-tribal their rights and protection of their sacred sites against the in accordance with the cultural ethos of camp formed in solidarity corporate move to construct a pipeline across indigenous the justice intervention. with the Húŋkpapȟa owned lands and territories. “Associate Professor Catherine Iorns, Lakȟóta people in their “Linda Hasan-Stein and Dr Keaka Hemi completed the from Victoria University of Wellington, opposition to the Dakota discussion with a critique of the education system and spoke on the different strands within Access Pipeline. Očhéthi the continuing paucity of information on initiatives such environmental justice that encompass Šakówiŋ, or Seven Fires as Mother Baby Units in prisons. procedural and substantive concerns for Council, is the traditional “A highlight of the day was the presence of Sir Grant racial justice. political structure of the Hammond, former judge of the New Zealand Court of “Professor Glen Luther from the Uni- Great Sioux Nation, of Appeal and one of the top law reform experts in the versity of Saskatchewan highlighted the which the Húŋkpapȟa Commonwealth. Sir Grant willingly shared his legal wisdom significant legal and practical concerns of Lakȟóta of Standing Rock by way of some delightfully anecdotal storytelling. His street checks in Canada as an example of are a part. Photo by Lucas genuine compassion and concern for marginalised com- racialised policing of marginalised com- Zhao, CC-By-NC. munities was an invaluable complement to a roundtable munities. focused on facilitating access to justice for indigenous “Two contentious and problematic issues groups. of Indigenous standing and sovereignty, “The rich tapestry of topics will form the next edition of as solutions for access to justice, was the the Yearbook of New Zealand Jurisprudence,” Dr Toki says. ▪ 23 24 Where water is the oil of the farming industry By Frank Neill

Ashburton is one of the fastest growing, if not the fastest growing, area of New Zealand in terms of lawyer numbers. LawTalk takes a look at why that is, and what it’s like lawyering in Ashburton.

“I arrived here in 1970 when the population of the borough and county was about 28,000 people as solicitor number 13,” says Russell Moon & Fail partner Gary Fail. “Today the population of the overall district (which encom- passes what used to be the borough and the county) is now about 33-34,000, but there are over 40 solicitors here and at least a dozen legal executives. “So there are over 50 people now doing legal work in Ashburton. The population has only gone up 25% yet the legal profession has quadrupled. “That has been publicised recently, that Ashburton has the fastest growing number of lawyers. Law and accountancy have attracted a lot of young people here.” Why is that? “It’s a unique farming area,” Mr Fail says. “The vast majority [of the land in Mid Canterbury] is flattish, and has good quality soil types of a wide range, which fit most uses.

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“One farm advisor told me that there is only one other 70% of the northern hemisphere’s carrot and radish seed area that has all the soil and climate ‘tick factors’ in the requirements. In fact, one of the biggest benefactors of southern hemisphere, and that is somewhere in Argentina.” the local rowing club at Lake Hood is the European who But if you had to write down one word that encapsu- exports all of the carrot seed. He has given a lot of money lated Ashburton’s success, that word would be “water”. to the local rowing club and the boats are called Carrot 1, “The Ministry of Works put the Rangitata Diversion Race Carrot 2 and Carrot 3. through in the 1930s and 40s. It’s a canal that runs from “That wide and varied agricultural production has grown the Rangitata River in the south along the foothills to the considerably with more efficient farming. Rakaia River in the north – obviously downhill – and from “When I came here, the generation of farmers included that a whole lot of irrigation schemes and farmer co-op- the war returnees who got rehab farms, who probably eratives take water and spread it or spray it on the land. weren’t farmers before they went to war. Farming went “That is what has given rise to Mid Canterbury’s growth. through the fifities and early sixties and it was pretty good “I am told that when the Rangitata Diversion Race was and easy. originally proposed, South Canterbury had the opportunity “However, many didn’t farm all that efficiently. I’m gen- to do the same thing going south from the Rangitata, but eralising obviously. There would be exceptions. And then they couldn’t get their act together and didn’t. As a result along came their sons, who’d been to Lincoln or Massey of that, I think farming in Mid Canterbury has prospered and who had been educated in farming and running a well ahead of South Canterbury. That’s probably reflected business. Farming efficiency picked up dramatically. in farm values today.” “My own guess is that the productivity of Mid Canterbury has gone up 10 times in the last 40 years,” Mr Fail says. Vital essence “Water is vital. It’s the oil of the farming industry. The turnaround “There is a rough rule of thumb that proper use of water While very similar to a lot of the small rural centres, can treble your productivity,” Mr Fail says. Ashburton has gone through something of a transition, “We’ve got dairying. We’ve got cropping. We’ve got sheep Argyle Welsh Finnigan partner Alister Argyle says. and beef grazing. We’ve got vegetables. We’ve got grapes. “It was very badly affected in the 1986-87 rural down- We’ve got deer. We’ve got alpacas. We’ve got small seeds. turn, when the Labour government removed particular And add to that forestry. subsidies and at the same time bank interest rates went “I believe Mid Canterbury supplies something like through the roof. 26 2 December 2016 · LawTalk 902

“Some farming families had a very difficult time. At that time I was privileged to be working beside a client of mine who was the then President of Federated Farmers Mid Canterbury, but was highly regarded on the New Zealand stage. He was able to negotiate with the government for a thing called an exit grant where farmers who had by and large negative equity were paid a $45,000 restart grant so that they could leave the farm.” Another factor was that in those days there were death duties. “Often, in a farming context, the Rural Bank would provide the loan money that enabled the farming family to pay the death duties to the IRD and the loans from the Rural Bank were at a low rate. But when it was deregulated, interest rates went through the roof. “That, combined with their external Ashburton borrowing from the bank or the insurance company or whatever, meant it all turned to custard. “It was a pretty difficult time. It was at an early stage of my career.” But although it was a very difficult period, it turned out to be a turning point for Ashburton. “People realised that farming was no longer what it had been. They realised that the government would no longer be there Some people have called Ashburton New Zealand’s granary, and to provide a backstop. with good reason. It supplies seed to many parts of the world – “That was also combined with the fact particularly carrot and radish seeds. Some 70% of the northern that around that time there had been quite hemisphere’s carrot and radish seeds come from Ashburton. an upsurge in irrigation development, Agriculture, including forestry, contributes 36% of the which had been funded by the Rural Bank Ashburton District’s GDP. Add primary processing and the land- as well.” based contribution to Ashburton’s GDP runs over the 50% mark. The difficult period Asburton experienced The district accounts for more than 43% of all arable produc- early in Mr Argyle’s career, did, however, tion in New Zealand. bring about a resilience in the town. Irrigation, which now has a command area in excess “Some businesses went to the wall, while of 230,000ha , underpins the district’s productivity. Irrigation others realised that they had to ensure that is one of the factors that leads many to consider Ashburton as the they spread their risk. most technologically advanced farming district in New Zealand. “And so a lot of very, very successful The most rapidly growing farming sector has been dairy farming, businesses have grown out of that. covering 95,854ha of irrigated land . There are 389 dairy farms “We have got some very able people, par- running more than 346,600 milking cows . The dairy sector con- ticularly in the likes of the grain and seed tributes 14.1% of the district’s economic output, up from 7.6% industry. Mid Canterbury is responsible for a decade ago. some incredible percentage of the world’s The sheep and beef sector contributes 15.1% to the district’s carrot seed exports, radish export, specialty economic output. Arable and crop farming contributes 6.2% . seeds, which are high value. The township has a population of 19,850 , while around 31, 040 “And of course there’s dairying, which has people live in the Ashburton District. The town, which is 86km brought about mixed blessings. In terms of south of Christchurch, is the 23rd largest urban area in New the economy it has done very well, although Zealand. there are downsides to it. One popular feature of the town is the man-made Lake Hood, “So Ashburton has come through this which is home to a variety of activities, and accommodates an difficult period. international rowing course. “People are working smarter and the Ashburton was named after Francis, 3rd Baron Ashburton, district is thriving,” Mr Argyle says. who was a member of the Canterbury Association. 27 LawTalk 902 · 2 December 2016

An enthusiast for Ashburton

“I’m an enthusiast about Ashburton,” Alister Argyle says. “I don’t have any regrets over coming back to Ashburton and practising here.” After studying at Canterbury University, Mr Argyle gained a job in Christchurch with the firm then called Harper Pascoe. “I was very fortunate to have worked with the late Judge Murray Abbott who was very particular and taught me the value of being precise and accurate. Murray became a very good friend. “Then I was offered the opportunity to come to Ashburton and I’ve never left. “One of the things that I think has proved helpful, because to be fair Ashburton is out of the main stream of legal practice, is that I’ve always been fortunate to have close friends in Christchurch who are in the profession. “One, in particular, Peter Whiteside QC has been a wonderful friend to our firm. He has done a lot of work for us. “I was fortunate to be included in a group of Christchurch practitioners who met for lunch every Tuesday so that when I was in Christchurch I was able to join them and it was an invaluable way to stay in touch with what other people in law were doing. In my view, if you want to practise well you tend to live the law and you need to ▲ Alister Argyle, partner at local not-for-profit groups, which we have always made be in it wholeheartedly. Argyle Welsh Finnigan a practice of doing. “I was born in Ashburton and now I have “It’s great to be able to actually share your ability with practised here for some 38 years. It’s been organisations that need and appreciate it, which you can good to me and good to my family. perhaps do a little easier in a small place like this. “One of the advantages I think about “David Welsh, my partner and friend of many years, and Ashburton, which some people might pos- I served our time doing ordinary court work, our share of sibly see as a disadvantage, is that you get legal aid, our share of relationship property cases and a to be known in the community. You are lot of counsel for child work. very accessible. “Over the years we have developed a strong rural-based “You see people in the street and they clientele and while in the past the practice dealt with the won’t hesitate to ask you about some legal more traditional type of farm ownership, now there’s a lot problem in the same way that GPs get asked of corporate farmers and a lot of our clients use commercial sometimes to make some medical diagnosis vehicles such as joint ventures, as well as the traditional on the fly as well. companies, trusts and the like. “Also, in this community there’s a real “We still have a very strong rural base but we also act opportunity to have loyal and long-stand- for a number of very successful companies, some of which ing clients. And that’s something that is are operating on the international stage. We also handle rewarding. One of the many attributes of a lot of estate and trust work. Ashburton is that it is a very parochial place. “We still do quite a bit of relationship property and “As a lawyer in Ashburton you have the some of that’s quite involved because with farmers you’ve opportunity to act [pro bono] for, and be got substantial amounts of money involved in complex involved in a number of local charities and situations.” 28 2 December 2016 · LawTalk 902

During his time in practice, Mr Argyle can point to a successful and active businesses and com- number of highlights. ❝ One of the mercial landowners who have quite a bit “One of the highlights was the opportunity to junior to highlights of property here and further afield. There’s Nigel Hampton QC in a murder trial. Another was to be certainly more going on than I would have involved acting for a local power authority in negotiating was the expected when I first came here,” she says. a deal with Ngāi Tahu – a joint venture where we put in opportunity Ashburton was not the first place where offers for Lake Coleridge and the High Bank Power Stations Ms Clarke practised. and also to on sell High Bank to Trustpower. This deal to junior While studying for a BA LLB at Otago meant that the community here got certain significant to Nigel University “I was lucky enough to be offered advantages. a summer clerk job at Simpson Grierson in “Another highlight is the fact that we have a loyal staff Hampton Wellington, so I did that, and then worked and a lot of loyal friends and loyal clients. That’s a reward.” QC in a there as a solicitor before going overseas. Two other highlights he refers to are first that his eldest “It was great experience to work in one daughter entered the law and “seeing her – she works for murder trial of those firms for a while. That was a pretty us now – make a great job of it and combining that with good start. You get a good grounding. It a family, is important to us”. certainly stood me in good stead for going The other was becoming a notary public three years overseas. ago. “That’s been interesting because as a result of what “I spent almost eight years in London I have to do I have a greater appreciation of the diversity working in-house, mostly at HSBC – mainly that the Ashburton community now has. It was a white in the investment management area. That middle class society when I started. It’s now got a won- was interesting. I was there from 2002 derful diversity and I see a lot of those people coming through to 2009. here for documents to be notarised and that’s interesting. “I was working with hedge funds and “There are Indian families coming in to get passports private equity funds which was very inter- for their children after they’re born. There’s a number of esting, particularly because it was kind of South American people who work here. We’ve had a lot boom time for quite a while and then the of Romanians came here initially. We’ve a whole range. opposite towards the end with the GFC It’s interesting meeting those people and hearing some hitting. of their stories. Continued on page 32... “That wonderful diversity is a bonus,” Mr Argyle says.

▼ Christina Clarke, associate in Tavendale and Partners’ Very collegial community Ashburton office

One of the great aspects of the Ashburton legal community is that it’s very collegial, says Christina Clarke, an associate in Tavendale and Partners’ Ashburton office. “We’ve got the Ashburton Legal Practitioners’ Society, otherwise known as ALPS. “We get together bi-monthly for a lunchtime session. We often get someone in to talk about something topical and then we have a couple of functions a year – a winter and a Christmas do. “It’s a pretty friendly sort of place, which is nice, and we have a few laughs as well. “We had a challenge recently to enter into the home industries category at the Ashburton A & P Show – a competition among firms to see who could get the most points for their cut flowers or baking or home-brewed beer or something. That was quite entertaining. Unfortunately we didn’t manage to win this year. “That’s an example of the nature of the relationship between the firms. “The legal community here has grown a lot over the last five years or so. Most of the firms have expanded quite a bit, which has probably got a bit to do with the dairy boom that’s happened over that time. “As well as the farming related work there’s a surprising amount of commercial activity going on here – some very 29 Top left: “Water is vital. It’s the oil of the farming industry," says Russell Moon & Fail partner Gary Fail. Bottom left: Ashburton’s clocktower is an icon of the town. Designed by architect Bill Skews, It was erected in 1976 for the town’s centenary. Top right: The Ashburton Stone Sculpture Symposium 2016 was held over 3 days at the Ashburton Domain, and brought together 15 of New Zealand’s top stone sculptors. Bottom right: An aerial photo of inland MidCanterbury, provided by Argyle Welsh Finnigan client Midlands Seed. A true Ashburton success story, Midlands produce 95% of the country’s Marrowfat peas and 40% of the world’s carrot seeds.

30 31 with funds in London which was completely different, so I didn’t know the first thing about doing a conveyance or anything like that. “It was great for doing a wide range of work, learning a lot in a short space of time and having plenty of responsibility as well. “Certainly now I have a broader range of clients – good clients, very good colleagues and a great lifestyle. “Working in the provinces is pretty good,” she says. “It’s hard to imagine going back to the big city corporate world – a big firm in Auckland or Wellington or something like that. It’s quite a different environment. “I can’t think of anywhere else I’d rather be right now, to be honest. I’m really happy here. We’ve got Christchurch just up the road if we want to do city things. We’ve easy access to outdoor activities – skiing and so on – and it’s not far to get down to Queenstown or Wanaka or somewhere like that.” Another advantage for her has been the flexible work arrangements, which really suit her as a mother of two young children. “The approach of our firm, certainly, has been very positive towards this flexible, part-time working, which has been great for me and others in the firm as well. “It’s been pretty good to have that balance – still get good work but be able to have some family time as well. “It obviously has its stresses from time to time. It can be a bit of a juggle, but that’s life,” Ms Clarke says. “Sometimes it’s two children running around screaming and the phone ringing …”

“Then we came back to New Zealand. ▲ Jon Everist, partner at Choosing Ashburton My husband got a job here in Ashburton, Everist Gilchrist Lawyers which is actually where he grew up, and Limited Like Ms Clarke, Jon Everist moved to Ashburton because that’s really what brought us here. his partner wanted to live in the town. “I really didn’t know what I was coming “My wife [Marilyn Gilchrist] chose Ashburton because to. I had no idea of what sort of law firms her parents live in Weston [near Oamaru] and she wanted there were here. to be closer to them. “That was in 2010. I thought I potentially “She was practising in Palmerston North, so she looked would have to commute to Christchurch, for jobs here – in Timaru, Ashburton, West Coast. She got but luckily enough managed to get a job offered a job in Ashburton and fortunately her employer with Cooney Silva Evatt as it was then. then organised with another law firm for me to be able to (Cooney Silva Evatt and Tavendale and move too, so we both moved with the family.” Partners announced their merger on 12 Lawyering is in Mr Everist’s lineage. “My grandfather September 2014.) was a law clerk and my other grandfather was a lawyer. “It’s been fantastic. It’s worked out really He was John Upham from Christchurch. And two of my well – better than I could have expected. brothers are lawyers. “Now that we’ve merged with Tavendale “When I met Marilyn she had studied to be a teacher and Partners, my practice is predominantly and she said she wanted to study law and I thought it commercial work – M & A, commercial would be romantic to go to lectures with Marilyn, so I property, joint ventures and general com- said I’d do law too. mercial work. I don’t really do much agri- “We were only ever in one class together – resource type work nowadays. Other people in the management law”, which Mr Everist describes as awful. firm specialise in that. “Every day was a different section of the act. It just goes “Working in Ashburton has been a really on and on forever. It’s very droll.” great experience,” Ms Clarke says. After studying at Otago University, Mr Everist still had “Starting off here with Cooney Silva one paper to complete, so he finished that with Sir Geoffrey Evatt, I’d never really done general prac- Palmer at Victoria University, where he also completed tice work before. I’d been working in-house his “profs”. 32 After practising with two different firms in Ashburton, Mr Everist and Ms Gilchrist set up their own practice, Everist Gilchrist Lawyers Limited. “We do family law almost exclusively. We do a bit of employment, a bit of relationship property, and Craig [Wakelin] is our conveyancing guru, so he does quite a lot of conveyancing. “We don’t get farm sales. We don’t get very much commercial. “Marilyn is duty solicitor but she doesn’t get legal aid assignments. She is a mediator as well and she’s a lawyer for child,” Mr Everist says. A very good fit

A solicitor with Everist Gilchrist, Mr Wakelin is the firm’s sole employee. He lives in Leeston, which just over 50km north east of Ashburton, having moved from his birth city of Dunedin to Canterbury at a very young age. The town’s newest lawyer whenLawTalk visited, Mr Wakelin came to the town as a result of seeking a new role. “I was previously practising elsewhere in Canterbury and Jon and Marilyn seemed like very genuine people and heavily involved in the community here, with their legal aid and other aspects of the practice.

▲ Tiffany McRae, senior “I quite enjoy the small town feel so I’ve associate at Russell Moon been here two or three months now and & Fail it’s been a very good fit,” he says. Mr Wakelin studied law and arts at Canterbury University. “My arts major was ◀ Craig Wakelin, solicitor political science so it ties in reasonably with Everist Gilchrist well with law.” He chose law, he says, because “I enjoy the client contact. Also, I enjoyed the phil- osophical aspect of the legal education.” He predominantly practises employment law, along with some conveyancing. Community law the drawcard

Volunteering with a community law centre was what led Tiffany McRae to practise law. Like Mr Wakelin, she was a student at Canterbury University, studying for a double degree in law and political science, when she first volunteered. “I did have thoughts of majoring my career with the political science side of things. “What attracted me to practising law was the community law centre. I volunteered 33 LawTalk 902 · 2 December 2016

with them through university and found that a really good experience. It was really good to meet people and talk to people and help people on a person-to-person level. “I quickly realised through that process that law was actually what was enjoyable.” She also found that the law degree was “more interesting than I’d originally given it credit for”. A senior associate with Russell Moon & Fail, Ms McRae has been with the firm about four years. “I started out in a secretarial role. At the point when I came out of university graduate jobs were not easy things to come upon, so I ended up working for State Insurance, just post-earthquake, and with AMI Insurance down here for a couple of years. “I was waiting for a legal opportunity. “One came in the form of ‘it’s not what you know but who you know’. I had a connection with Gretchen [Hart, a partner of Russell Moon & Fail] – a friend of a friend – and they had a maternity leave secretarial position. “They thought somebody legally qualified could perhaps add something a little bit more to the secretarial position, so I started in that area. “Then I obviously convinced them I was worthy and I came on as a solicitor after that.” Working at a firm such as Russell Moon & Fail in Ashburton provides one with a good range of experience, Ms McRae says. ▲ Sam Ruck, solicitor at I spent my whole life here – grew up in Tinwald, played “The nature of the town is that you are Argyle Welsh Finnigan rugby there, went to Ashburton College and then when doing a lot of different things and you I finished my days there I headed down to Dunedin and get exposure to things that you perhaps decided to come back. wouldn’t expect. We’ve had a bit of involve- “I clerked for Argyle Welsh Finnigan in my third year at ment with the Overseas Investment Office university. I didn’t really have any aspirations to return of late, which is probably surprising really. to Ashburton at all. I just wanted to get experience in a “You get lots of different kinds of work local firm.” and it’s not stuff that you necessarily have That would change, however, when the firm offered to go to the bigger firms for. You can cover him a job. all kinds of things. It’s good,” she says. “I thought about it and obviously leaving a town of 20-25,000 people and coming back to it, obviously there’s a whole other world out there.” Ashburton the Argyle Welsh, however, “were good enough to let me go to the Czech Republic for six months and I lived over there place I want to be and studied and finished my studies in Prague. “I still had a bit of a travel bug. I said: ‘Look I need to go Sam Ruck came back to Ashburton as a law to Sri Lanka and India’, so I had a few months over there clerk at Argyle Welsh Finnigan in April, the with a couple of my university friends and then I came month before he was admitted in Dunedin. back after that,” Mr Ruck says. “I say to everybody I’m from Tinwald (a “I’m a solicitor now, mostly in property at the moment, suburb of Ashburton), which is across the which I really enjoy. bridge and is a completely different place. “If anyone asked me at university what was I going to “I was born and bred in Mid Canterbury. go into, it wouldn’t have been property because I hated 34 property law when we did those second year exams. It ▲ Dairy is the most rapidly “I think everyone needs to have a good was probably my worst paper as well. growing farming sector in look when they are at law school and decide “But there’s an aspect of property law where you get a Ashburton, now covering for themselves what really makes them good mix of being hands on with clients, which is probably 95,854ha of irrigated land. tick and look at the opportunities that are my strongest skill coming back to a town that I know. While unable to speak to presented. “It’s the people. I like meeting with them, and then I the literary interests of “There’s positives to going to work for like the complex aspects of law. When you get to sit down all 346,600 milking cows the larger firms in the big cities. There are and actually figure something out, especially with a lot of in Ashburton district, undoubted positives. But then there’s also the complex farming transactions that we do have – their LawTalk can confirm positives to working in a small tight-knit structures and the considerations that you need to take that the particular cow firm like this.” into account. depicted above was For Mr Ruck, working in a rural town is “Before I came here, I probably thought ‘oh no, I’m going most intrigued by our the right choice. back to Ashburton – a town of 20,000 people. I’m going to photographer’s recitation “I’ll probably do my big OE and come be stuck doing wills and that’s my life over and the book’s of poetry. back and make this the place where I want closed’, but it couldn’t be anything further from that. to be. “Probably the biggest thing is the work-life balance. “I’m born and bred here. My whole fam- That’s probably why I came back in the end as well. ily’s here. I’m quite invested in the com- “I’m a graduate solicitor and you have to work hard. If munity. I was invested in it when I was at you have to stay in the office until 10 to get a job done, you high school, as head boy at the local college have to stay in the office till 10. When I do finish, I’m only and playing Rugby for a club in Tinwald. five minutes to get home, so I’m at rugby practice within “It’s that ability to be 50 minutes away five minutes. The time that I have to utilise my personal from Christchurch, and another 50 minutes time with work has just been amazing. away to Lake Clearwater and go fishing “I would recommend this. However everybody’s different. and you’ve got the outdoors right there. 35 LawTalk 902 · 2 December 2016

You’re really at the doorstep to having a good time as a young person, and a young professional. “I played rugby for a club called Southern in Dunedin for about three years. And then I came back here this year and my local club Tinwald didn’t have a team so I just coached this year,” Mr Ruck says What I like the most about coming back here is this: Ashburton gave me so much when I grew up without knowing it at all. When I sat here in year 13, the first thing I wanted to do was leave. You don’t appreciate how much the town and community gave you. “You’ve got that opportunity to give back now. Especially as a solicitor as well, you realise quite quickly that you’re an important part of society, giving people advice that they need. That’s the aspect that I really enjoy.” And returning to the town, and working there, has made Mr Ruck realise “just how good Ashburton is”. A great place to live

Ashburton is a “great place” to live in, Gary Fail says. “The local radio station has a catch phrase that goes something like, Mid Canterbury or Ashburton ‘where things and kids grow best’ because the kids have all got sporting facilities available. “They can play rep sport for Mid Can- ▲ Gary Fail, partner at “Everyone in town is a maximum of 10 minutes from terbury where you don’t stand a chance, Russell Moon & Fail work. I don’t do it now, but I was 15 minutes’ walk from because of numbers, of getting into rep work through the Domain. I go home for lunch. That’s teams in the big urban areas. There are a things city people don’t do. Most of the practitioners go lot of sporting opportunities here. home for lunch. “It’s a lifestyle here in Ashburton. When- “It’s a good, easy lifestyle and working style. We don’t ever a law firm advertises, we simply say have to spend three quarters of an hour or more commuting lifestyle advantages available: skiing, shoot- to and from work. That time is available for work if you ing, fishing, tramping, whatever you like. want it or lifestyle or family.” “The golf course is five minutes away. In addition to ALPS “we have a high degree of colle- You don’t have to book. giality between the local professions, which is based on “Mount Hutt, if you want to ski, you could knowledge. We know them well. We are dealing with them go to the office early – it’s only 30 to 40 frequently. They’ve proved themselves. We can trust them. minutes to the ski field – and you could “The firm started two generations prior to me. In 1926 spend the afternoon skiing. it was formed by Vernon Russell, and he was joined John “There are fishing rivers, there are shoot- Moon in 1963. So it was Russell & Moon when I joined it ing hills, there’s a very active aero club in 1970. I became a partner in 1973 and it became Russell with many private pilots flying, there’s a Moon & Fail. whole lot of features. “So it’s long established. “We’ve got a wonderful public park, “We have a lot of threads of family clients going back which is sadly called the Domain. It should generations. be called the botanical gardens or some- "People whose fathers settled them on farms during my thing. It is beautifully maintained by the earlier years are now settling their sons. And that’s the council. sort of work I’m now doing, because I have grown up with 36 my clients and do their estate planning, farm succession, “That’s part of the enjoyment of living and working making wills, trusts all that sort of thing. in a town this size. Another benefit is that we generally “As a firm, we like to be part of the community. We know most people we are dealing with. We know the bank encourage all our partners and staff to get out there and managers. We know the insurance people. We know the join clubs and get involved. real estate agents. It’s a small enough community for us “We sponsor a lot of sporting activities. We don’t adver- to know of, or know about, or be known about. tise as such but we do contribute to sporting functions Working here, I’d have to say, is a bit of a pleasure. It’s and tournaments. got its drudgery. It’s got its hard work. It’s got its problems, “We do quite a bit of pro bono work. We’re all trustees but generally I think small town law practice is a pleasure. of charitable trusts or club committee members or some- “Ashburton is such a wonderful place to live, we say, thing like that. One of the partners here was elected to the yet over 99% of New Zealanders choose not to live here, licensing trust at the last local body elections. they choose to live somewhere else. “We belong to the community, we contribute to the “When I came here in 1970, never intending to stay, community and we enjoy the community. I was a single man. I was going to work and earn some “I think it has been a good fit for my personality and money and travel overseas. this job in this town. There’s a lot of direct and immediate “But the lifestyle here is quite infectious and I grew into contact with people here. the job quite quickly and into the lifestyle and decided “One of the things about practising law here is your that this was the place I’d rather stay than move from. availability and your familiarity with people. You meet “I’m here 46 and a half years later. I’ve thoroughly enjoyed clients in the supermarket. While the town is not tiny, my time here. It hasn’t quite finished. I am facing retirement, it’s not huge either. and I’ve done many things and most things that are to be “It’s hard to walk to a meeting at an accountant’s office done in a general practice in a small town,” Mr Fail says. down the road without meeting someone on the footpath “So when are you coming down to live here?” he asks. ▪ who you have to stop and chat to. 37 LawTalk 902 · 2 December 2016

Clear, plain language powerful in making the law accessible

Language is a “powerful way to make and understood to be done). ROSS – an IBM product. The firm’s lawyers the law accessible,” the Solicitor-General “As I tell my colleagues in Crown Law, will be able to ask ROSS a research question Una Jagose said in her address to last if our clients cannot understand what we in natural language (eg, “can a bankrupt month’s Clarity International Conference are telling them, and if they need a lawyer company still conduct business?”) and in Wellington. to translate what our advice is, we are not receive an instant answer, with citations Language can, she said, include or doing our jobs right,” Ms Jagose said. and topical readings from legislation, case exclude. It can advance or hold back pro- law and secondary sources. ROSS will also gress. Making the law more open keep on the job, providing updates on any Yet for far too long lawyers have reveled “One thing that plain language advising relevant changes in the law. in complex, hard to understand, “mired in does is make our profession more open to “All of this may seem like a risk to some the past” language. Mercifully, however, others to engage in; and as we move more of diluting our profession’s mystique and plain language – for lawyers and judges – and more into a technologically enabled special character. But to try and cling to a is gaining prevalence, finally, though there world non-lawyers can access the words special language that excludes others is a is plenty of improvement yet to be made. of the law (as enacted by Parliament) professional arrogance I don’t approve of. Lawyers must embrace plain language themselves. “But I don’t think it’s time to kill all the in order to advise well, to persuade courts “They can often determine for themselves lawyers – not yet. So long as we adapt and and decision makers to our point of view, how the law is applied to their fact situa- remain relevant there will continue to be to allow people of New Zealand to see and tion through online information systems.” a need for lawyers who can communi- know what the law is and what it means The use of artificial intelligence to draft cate clearly and plainly. Use of technol- and, frankly, to remain relevant. legally sound documents or to work out ogy should mean we advance and use it “The language of law is to persuade, what law applies to your facts is on the rise. to give an edge to our work. to advise and (in the case of judging) to The New Zealand Law Society newsletter “I don’t underestimate the challenge we determine disputes between parties so that pointed out earlier this year that a United are all posing at this conference. Analysing justice is done between them (and seen, States law firm had “hired” a robot called the law – and how it applies to the facts before you – requires precision and a lack of ambiguity. “We have spent an awful lot of time learning our legal disciplines. But to my TRANSCEND INTERNATIONAL way of thinking the truly smart lawyers BOUNDARIES WITH AVIATION LAW are those who can digest that complexity, apply our legal expertise and then explain

The Auckland Law School is offering a unique opportunity to study what we mean in plain terms. Aviation Law with world-leading specialist Professor Paul Stephen Dempsey. A few tricks The former Director at the Institute of Air and Space Law at McGill University, Canada, will teach LLB and postgraduate courses “There are only a few tricks to learn, I in Semester One 2017. reckon, to make a very big difference. If LLB (Aviation Law) and postgraduate (Contemporary Issues we write for the ordinary intelligent reader in Air and Space Law) courses will cover various aspects of we will be more persuasive, have fewer international law in relation to aviation, air and space. errors of logic and our writing will be easier During Semester One 2017: • Postgraduate classes are Wednesdays 5-8pm to digest. • LLB classes are Wednesday/Friday 8.30-10am. “We are more persuasive, too, if we For more information contact a student adviser can take the reader (be it client or judge) at [email protected] through a well-reasoned, easy-flowing narrative.” Ms Jagose provided a series of recommendations that, if followed, can help a person write more clearly and, when needed, more persuasively. These are: ▪▪ Use active rather than passive language. 38 2 December 2016 · LawTalk 902

This is how we actually speak to each “The primary functions of a judgment are threefold. other – so why passive-it up when writing ❝ Use simple “In the first instance it serves to provide a resolution a legal piece? The other benefit of active words even if to the dispute raised in the proceedings before the court, writing is that is tends to put things in where the losing party is for the judge a primary focus of the right order for best comprehension. you know big, concern. The judgment must set out a clearly reasoned ▪▪ Use simple words even if you know big, complicated basis for its conclusion. complicated ones. This one gets me every “Secondly, the judgment establishes a binding precedent time. I am sure it’s not only lawyers who ones of legal authority which provides guidance for judges, love to make things sound grand by using the legal profession and legal scholarship generally as to stuffing words, or complex phrases where how the law is to be interpreted and applied in particular a simple version is available. (Stuffing circumstances. words are things like therein, thereafter, “Thirdly, it also serves a communicative function which subject to, at this point in time, notwith- should be of benefit to society as a whole, representing as standing the fact that, whereforeto.) it does the transparent and openly democratic functioning ▪▪ Use short sentences. of our legal system.” ▪▪ Don’t engage in parenthetical asides. Use “It is this third element that can be forgotten – but which another sentence if you have to. to me is an essential element of accessibility as I was ▪▪ Use bridges and signposts when transi- mentioning earlier,” Ms Jagose said. tioning from one thought to another or “The law of judges – that is the common law (as distinct from statute when bringing your analysis together law; the laws passed by Parliament) – make up the laws of this country. into a conclusion. And as this quote shows, there are three things being done: determining ▪▪ Avoid Latin phrases such as lex causae, the dispute between parties, developing the common law (applying or obiter dictum, prima facie, stare decisis, making precedent to be followed) and showing clearly to the citizens autrefois acquit, lex loci delicti, per se, how the open legal system works, what the law is and why it matters. ratio decidendi, ultra vires. Yes, they “My ambition is that we move society to a point where people do know all mean something; but just say what about the constitutional framework that we are all governed by and know they mean! how they are affected by law, what their rights are, and how to hold ▪▪ Review what you have written and governments and others to account. take the time, and discipline, to reduce “Using plain language, and letting people into the once closed shop of it into plain language. Attributed to many lawyering, is a powerful way to achieve this ambition. authors, the excuse that “I am sorry this “A society with an empowered citizenry will demand access to justice letter is so long, I did not have time to – not just to the statute book but to the content of the common law, and write a shorter one” is a common one. to our justice institutions. That’s a society I want to be part of building,” But, like chicken stock, legal writing is Ms Jagose said. ▪ vastly improved by putting all the elements in at first and then reducing and reducing it! Use language people can understand In 2008 Supreme Court of Ireland judge Justice Nicholas Kearns wrote an article in the Irish Times on his thoughts on judgment writing. He was advocating the use of language and ideas that people could understand. “When writing a judgment,” he said, “I PLAN YOUR 2017 IN-HOUSE TRAINING NEEDS see no reason why references to current Choose from a range of programmes to be delivered in your events or popular culture should be seen firm at a time suitable to you. as taboo.” He pointed to a US survey conducted to find out which popular culture artists are most frequently cited in courts. “We feel extremely well supported by the College. They always deliver exceptional Bob Dylan was the clear winner. Apparently service and bespoke solutions to meet our needs.” - JO CALDER, Buddle Findlay “you don’t need a weatherman to know which way the wind blows” has become standard fare in Californian appellate court Call (09) 300 3151 decisions when they decide whether expert Email [email protected] evidence is required! Visit www.collaw.ac.nz Justice Kearns went on to say: 39 LawTalk 902 · 2 December 2016

Helping communication-impaired defendants and witnesses

By Dr Emily Henderson the Court of Appeal approved an English-style CA in a sex trial involving a young teenage complainant with Down’s Facilitating communication-impaired people syndrome and considerable language delays. The Court to give the most accurate and complete approved the trial judge’s statement that: evidence they can, and, where they are “The accused’s right to a fair trial is a keystone of our defendants, enabling them to participate criminal justice system. It is not the only keystone. People fully in their own trials, is a major issue with intellectual difficulties and challenges should be able for our justice system. to come to our Courts and present their evidence in a way However, over the last several years, Dr Emily Henderson that is tailored to their needs to ensure that the trier of several courts around New Zealand have fact … can be as confident as possible that the answers are been quietly trialling a simple but highly true answers, that is as to what occurred, effective method of assisting such people. (and decreasing confusion) in suspect and rather than the witness being confused and We are increasingly aware that a signifi- witness statements from the outset of the challenged by the questions being asked.” cant number of defendants and witnesses investigation. Increased use of s 80 was subsequently suffer from a range of conditions – from recommended in last December’s Law foetal alcohol syndrome to autism to head Independent court officers Commission report, Justice Response to injury to simply being very young – which Intermediaries are not expert witnesses Victims of Sexual Violence: Criminal Trials hinder their ability to comprehend normal but independent officers of the court, and Alternative Processes, on reforming sex language or themselves to communicate sworn in using an oath similar to that of offence trials. clearly and fully. interpreters. Studies show that they are Experience both here and overseas shows Nonetheless, extensive research also highly regarded by judges and counsel, and CAs can be invaluable in facilitating com- shows that, questioned appropriately, have improved access to justice for many munication with an impaired person, but even very young children can give accu- severely impaired people. the key to successful utilisation is two-fold: rate evidence. Since 2012, a number of New Zealand First, the expert must be an experienced Undoubtedly, we lawyers could always practitioners have introduced a similar clinician with a firm commitment to impar- improve our performance, but training to expert here, using s 80 of the Evidence tiality, while also being robust enough to be expert enough to communicate with Act 2006. raise issues in court. English intermediaries seriously impaired people is unaffordable Section 80 allows the court to order a are government-trained and accredited. As in both time and money. broad range of assistance, whether oral, yet, we have no training programme, only One option commonly used in England written or technological, to a defendant enthusiastic – and mostly excellent – cli- and Wales is to appoint an “intermediary” or witness with a “communication disa- nicians. Counsel interested in s 80 should or communication expert to assist judge bility” or who lacks “sufficient proficiency” therefore educate themselves about the and counsel to understand the limitations in English to understand proceedings or English system (there are excellent free of, and how to adapt to, the impaired per- give evidence. online resources; see in particular the excel- son’s language. Counsel may apply for assistance or the lent http://lexiconlimited.co.uk/toolkits/) to The intermediary – usually a speech lan- Court may initiate the order. Either way, as ensure best practice. guage therapist – provides a report to the in England, the Communication Assistant The second key is pre-trial preparation. court, works with both counsel to prepare (or CA, as they are known), is not a witness Hasty discussion on the morning of trial for questioning and then monitors com- but has an impartial role akin to an inter- is insufficient. English cases must have a munication at trial to prevent misunder- preter. They are also funded as interpreters “Ground-Rules Hearing” or call-over at least standings. by the Ministry. a week beforehand. The court discusses Where the assisted person is a witness, Anecdotally, CAs have been appointed in the issues with counsel and the CA and the intermediary attends trial only for the New Zealand in cases involving defendants issues written directions. Counsel should testimony. Where the person is a defend- and witnesses with head injuries, dementia then meet the CA privately to discuss how ant, the intermediary stays throughout, and stroke-related conditions, foetal alcohol to adapt their language. Experience shows including meetings with counsel. syndrome and significant learning disabil- that good pre-trial preparation ensures a In England and Wales, the courts can also ities as well as for developmentally normal smooth and effective process. appoint intermediaries to advise and assist young children. Used sensibly, CAs are proving an effec- at police interviews, something which has The practice has appellate approval. In tive and practical way of overcoming sig- proven very useful in increasing accuracy 2015’s R v Hetherington [2015] NZCA 248 nificant barriers to achieving justice for ▶ 40 Letters to the Editor 2 December 2016 · LawTalk 902

Letters to the Editor

LawTalk welcomes letters to the Editor. Letters should ideally be restricted to a maximum of 4 the total cost to us to date of those pro- 450 words, although shorter letters are most welcome. Letters may be abridged or edited, and ceedings being issued; LawTalk reserves the right to not publish any letter submitted. Letters should be sent to LawTalk 5 the total costs to us to date awarded as either a Microsoft Word document or in a form that can be copied and pasted into a Microsoft against NZLS; and Word document. They can be sent to [email protected]. 6 how many more than 2% of us have been appointed to standards commit- good at “coping with the paper war”. Yes, tees since 2008. it is a time commitment but a worthwhile David Roughan Lawyers one I believe. Kamo David Sparks Whakatane New Zealand Law Society becoming response politicians In the case mentioned the award of $10,398 was for the hearing costs which it is man- I was interested to read the lead item in Disciplinary datory for the Law Society to pay pursuant LawTalk 900 on “lawyers morphing into to s 257 of the Lawyers and Conveyancers politicians” and, in particular, the item on costs Act 2006. No adverse costs were ordered Tim Cadogan. against the Law Society. In my own modest way, I have become a The 6 October 2016 edition of Law Points The Law Society has an obligation to take “part-time politician” having been elected on reported that the New Zealand Lawyers and disciplinary steps in appropriate circum- to the Kawerau District Council as a Councillor. Conveyancers Disciplinary Tribunal had stances. These include prosecutions to the Kawerau is the smallest district in New made an award of costs of $10,398 against disciplinary tribunal. The number of strike Zealand, and very well run (at least in my view). NZLS when it dismissed all charges laid off orders have diminished significantly As regards my own motivation, I have against a practitioner Mr E. and the Lawyers Complaints Service would long been interested in local government, NZLS counsel have advised the Discipli- like to think that indicates a more respon- going back quite some years to when I was nary Tribunal that the cost of prosecuting sible attitude by practitioners and that the chair of a rural-based residents’ associa- charges is $43,686.41. lessons learnt in other prosecutions have tion which achieved some great things So, I calculate that a standard commit- been taken to heart. in partnership with the then Whakatane tee’s decision to lay charges against Mr E However there will always be lawyers County Council. has cost us all about $54,000. who do offend and so action must be taken. It is good bringing lateral legal thinking In the circumstances of this (and of other The disciplinary function is used only to these roles and my fellow Councillors are cases where charges have been laid and rarely (in just over 2% of all complaints a great bunch of people – as are the council dismissed and costs awarded against NZLS) investigated) and directly supports one of staff. It is also exciting to learn of, and be perhaps the Lawyers Complaints Service the primary purposes of the Lawyers and part of, all sorts of strategic planning and needs to report to its members (and the Conveyancers Act to maintain public con- the like that goes on. Minister) on: fidence in the provision of legal services. I am very much looking forward to the 1 how many charges have been laid before Costs awards in most jurisdictions rarely triennium. the Disciplinary Tribunal since August cover all costs. In the disciplinary tribunal I would urge anyone thinking of stand- 2008; costs are often awarded in full when a pros- ing for Council to “give it a go” in the next 2 how many of those charges have been ecution is successful so the burden does election. Lawyers do have valuable skills admitted; not fall on the rest of the legal profession. to contribute. You will have to deal with a 3 how many of those charges have been Detailed information about the activities lot of reports but then, as lawyers, we are proven; of the lawyers complaints service are provided in the regulatory report published annually. This may be found at www. communication-impaired people, improv- New Zealand Law Foundation’s International lawsociety.org.nz/practice-resources/research- ing the quality of witnesses’ evidence and Research Fellowship to research cross-ex- and-insight/practice-trends-and-statistics/ increasing defendants’ ability to understand amination reform. In 2015 she was awarded legal-complaints-service,-2010-to-2015. The and participate in their own trials. ▪ the International Investigative Interviewing current regulatory report is being prepared Research Group award for Academic and information about the year to 30 June Dr Emily Henderson is a senior litigator Excellence. She is part of the Benchmark 2016 will be available soon. at Henderson Reeves Connell Rishworth in project, funded by the NZLRF and IHC, devel- The Disciplinary Tribunal also issues an Whangarei. She publishes internationally on oping guidelines for practitioners working annual report which is available on the criminal trial reform and in 2012 was awarded the with vulnerable witnesses and defendants. Tribunal’s website. 41 LawTalk 902 · 2 December 2016 Law reform

Law Society supports Intelligence and Security Bill, but safeguards could go further

The New Zealand Law Society believes leg- welcomes, but considers that in some areas “The bill makes it clear that New islation to improve the transparency and the bill should go further,” Mr Orpin said. Zealanders can be targeted, but only if oversight of New Zealand’s intelligence and The Law Society recommends a number doing so is necessary to protect national security agencies is a positive development, of changes to strengthen the safeguards security”, Mr Orpin said. but recommends strengthening some of in the bill. The Law Society opposes an alternative the proposed safeguards to enhance public “For instance, the Law Society believes definition proposed by officials and says confidence. that intelligence should be collected using this would carry a risk that warrants which The Law Society presented its submis- the least intrusive means possible and open target New Zealanders may be issued for sion on the New Zealand Intelligence and source collection of information is preferred wider law enforcement purposes rather Security Bill on 3 November to the Foreign where possible. The Society recommends than to protect national security. Affairs, Defence and Trade select committee. this general principle is added to the bill”. The bill implements wide-ranging rec- “The Law Society acknowledges that intru- “It would also enhance transparency ommendations from a recent independent sions into privacy are to some extent an and public confidence if the bill required review of the intelligence and security agen- inevitable consequence of the activities of the intelligence agencies to report yearly cies by Sir Michael Cullen and Dame Patsy intelligence organisations, but those intru- on their direct access to other government Reddy. The review emphasised the need to sions should be strictly limited to what is pro- agencies’ databases,” Mr Orpin said. improve transparency and oversight to give portionate and should be subject to strong The concept of ‘national security’ is of the public greater confidence that the agen- oversight and review”, Law Society spokes- central importance to the legislation. The cies – the Government Communications person Jonathan Orpin told the committee. Law Society believes the bill’s definition of Security Bureau (GCSB) and the New Zealand “The bill provides some protections for ‘national security’ is balanced and workable Security Intelligence Service (NZSIS) – are personal privacy which the Law Society and should be retained. acting lawfully and appropriately. ▪

Law Society opposes proposed changes to Privacy Act

The New Zealand Law Society says the Privacy Act that prevented information “The bill should ensure greater transpar- Privacy Act already enables government being shared by the relevant agencies. ency and public accountability. It is impor- agencies to verify individuals’ identities for “The Privacy Act allows agency infor- tant the public can see what arrangements law enforcement purposes and proposed mation sharing via Approved Information are in place to share identity information, changes to the Act are not needed. Sharing Agreements (AISAs) that incorpo- and can be confident those arrangements The Law Society presented its submission rate appropriate privacy protections, and it are justified,” she says. on the Enhancing Identity Verification and is not clear why this bill should circumvent Ms Evans says this is particularly impor- Border Processes Legislation Bill to the Law the AISA framework’s carefully designed tant when dealing with highly sensitive and Order select committee. checks and balances. The proposed changes identity information such as biometrics – The bill addresses recommendations from are also at odds with the design of the fingerprints, photos and iris-scans – which a government inquiry following the escape Privacy Act,” she says. need to be handled very carefully. of Phillip John Smith/Traynor in 2014 while Ms Evans says if Parliament proceeds “The bill should also be amended to he was on temporary release from prison. with the proposed changes rather than require that any future widening of the Law Society spokesperson Katrine Evans requiring agencies to use the AISA mech- permitted sharing arrangements is clearly told the select committee the government anism, some important safeguards need justified and proportionate,” she says.▪ inquiry did not identify any barriers in the to be added to the bill. 42 Law reform 2 December 2016 · LawTalk 902

the Acclaim Otago report into the accident Proposed changes to ACC compensation dispute resolution system confirmed there were shortfalls in some areas, especially around costs of medical review costs ‘insufficient’ evidence. MBIE has proposed increasing the regu- A proposal to increase the amount clients during a review. Costs can be awarded to lated costs by 14.9%, based on the Consumer of ACC can claim in costs incurred during clients if a review decision is made fully Price Index increase from the first quarter dispute resolution processes doesn’t go far or partly in their favour. of 2008 to the first quarter of 2016. enough, says the New Zealand Law Society. Even if a review decision doesn’t go The Law Society says the 14.9% infla- In a discussion document called Con- their way, clients can still claim costs if the tion-based increase “while welcome, sultation on Changes to the Injury Preven- reviewer considers the case has been rea- is insufficient”. It says that the amount tion (Review Costs and Appeals) Regulations sonably brought. The maximum amounts available for legal representation and 2002, the Ministry of Business, Innovation that can be paid to clients are set out in medical evidence is far below the actual and Employment (MBIE) is proposing an the Injury Prevention (Review Costs and costs incurred. inflation-based increase of 14.9% for costs Appeals) Regulations 2002. MBIE’s discussion document notes there incurred by clients during independent In its discussion document, MBIE says the are likely to be further, more substantive statutory reviews of their cases. MBIE’s intent of the regulations is “not to absorb changes to the regulations. “Work is under proposal follows the release of an independ- the full costs of claimants upfront but to way to better understand the nature and ent report by Miriam Dean QC on ACC’s maintain a margin of individual responsibil- extent of the issues and to inform assessment dispute resolution processes in September. ity, with payment following costs incurred. for substantive changes to the regulations.” Under the Accident Compensation Act This is important to address the risk of The Law Society agrees that further work 2001, ACC clients can claim costs they incur excessive litigation and cost inflation”. on the regulations is needed and says it The regulations have not been substan- would welcome the opportunity to assist tively reviewed since 2002, but there was with that. The Law Society says it is “clearly an inflation increase in 2008 and a GST beneficial” for appeals that have merit to increase in 2010. be investigated and resolved at the review MBIE said it had heard from stakeholders stage, rather than progressing to court. Recent who were concerned that the prescribed “Increasing cost awards under the reg- costs were “no longer in line with inflation ulations for medical evidence and legal submissions and do not provide adequate support for representation to a more realistic level clients, especially for more complex cases”. would very likely contribute to resolving The Law Society recently filed It said the recent Independent Review of disputes at an earlier stage.” ▪ submissions on: ▪▪ Consumer credit fees – updated draft guidelines; FMA Conduct Guide useful, but ▪▪ Divisional Patent Applications – Transitional Provisions – clearer purpose description needed consultation; ▪▪ Enhancing Identity Verification and The Financial Market Authority’s Guide to the Markets Conduct Act 2013 does not have Border Processes Legislation Bill; FMA’s View of Conduct is a useful document an express statutory mandate to create con- ▪▪ Land Transport Amendment Bill; for directors and licensed financial service duct obligations which apply to financial ▪▪ Electoral Amendment Bill; providers, the New Zealand Law Society service providers. ▪▪ ACC review costs, proposed says. However, in its comments on the guide, It says this seems to have resulted from changes; the Law Society says it is important that it the 2010 securities law review, which con- ▪▪ Guide to the FMA’s View of Conduct provides a clearer description of its purpose sidered whether there should be a prin- – consultation; at the beginning of the document and the ciple-based overlay – requiring providers ▪▪ Tax, PUB00280: draft QWBA: GST consequences of not complying with it. of financial services to retail customers to – Whether a racing syndicate or “It should be made clear that the conduct provide services in a fair manner. partnership can be a registered guide does not introduce any new legal obli- However, this was rejected. Instead, Part 2 person for GST; and gations and is not enforceable by the FMA of the Act imposes requirements of “fair deal- ▪▪ Tax: Addressing hybrid mismatch or any other party,” the Law Society says. ing” which targets misleading or deceptive arrangements, discussion “Without such clarification, the guide could conduct, false or misleading representations, document. be seen as potentially expanding the obliga- and unsubstantiated representations. The The submissions are available tions of licensed financial service providers Law Society says it should be made clear that at www.lawsociety.org.nz/news- without legislation or judicial mandate.” the conduct guide does not introduce any and-communications/law-reform- Considering the guide’s purposes, the new legal obligations and is not enforceable submissions. Law Society notes that the Financial by the FMA or any other party. ▪ 43 LawTalk 902 · 2 December 2016

Multiple ground discrimination

A 21st century necessity though it occurs along a single axis fails to take into account the matrix of indivisible and intersecting factors that comprise each person’s identity. By restricting By Mai Chen their analysis to individual violations of substantive rights suffered by claimants in such cases, the courts risk failing to address the structural inequalities that create and A new report by the Superdiversity Centre legitimise intersectional discrimination, and also cannot for Law, Policy and Business, to be pub- remedy the systemic inequality which creates the con- lished on or before February 2017, examines ditions for these violations. the need for an intersectional approach to The English courts have adopted a narrow approach to discrimination law. such cases, tending to require the selection of a comparator Intersectional discrimination arises Mai Chen group, whereas the Canadian jurisprudence has focused where discrimination is experienced by on the compounding disadvantage to the claimant. The a complainant on the basis of more than United States Courts have held that claim- one protected characteristic, which cannot only – is going to reflect fewer people’s ants belonging to groups subject to unique usefully or effectively be broken down into real lived experiences over time. As the types of stereotyping – such as black and its constituent parts. The Diversity Matrix: United States Court of Appeal has said: Asian women – are protected classes of Refreshing What Diversity Means for Law, “the attempt to bisect a person’s identity claimants who may allege discrimination Policy and Business in the 21st Century exam- at the intersection of race and gender often on the basis of two or more intersecting ines the implications of adopting a “matrix” distorts or ignores the particular nature of grounds, ie gender and ethnicity, not just approach to diversity for the enforcement their experiences”. one or the other. The European Courts have of New Zealand’s anti-discrimination laws, not yet adopted an intersectional approach taking into account issues experienced by Discrimination complaints to discrimination claims, though they have overseas courts in intersectional discrim- The Human Rights Commission’s statistics recently begun to express support for such ination cases. over the past five years show that discrim- an approach. Most of the European cases Intersectional discrimination has ination complaints are increasingly based involving intersectional discrimination to received little consideration in New Zealand on more than one ground of discrimination date have either been analysed through a to date, in contrast to overseas jurisdictions, – from 9.19% of complaints in 2011/12 to single-axis lens or have focused on alleged despite New Zealand’s growing superdi- 15.4% in 2015/16. violations of claimants’ substantive rights, versity. The majority of these complaints concern for example, the right to religious freedom, According to the 2013 Census, a quar- race and sex, followed by disability and rather than discrimination. ter of Auckland’s population are already age, sex and age (older women), and race The overseas jurisprudence, though not Māori, Pasifika and Asian women, and the and disability. binding on the New Zealand courts, will statistics show that they generally get paid Discrimination claims based on multi- likely be instructive to the New Zealand less than European men and women, and ple grounds are likely to increase as New Courts and the Human Rights Review Māori, Pasifika and Asian men. Zealand’s diversity grows. Growing num- Tribunal (HRRT). The New Zealand courts It is well-documented that women from bers of New Zealanders are identifying with and the HRRT have not yet addressed the ethnic minorities may not only suffer dis- different cultures and ethnicities due to implications of when two or more pleaded crimination on the basis of sex, but also race migration and ethnic intermarriage, which grounds of discrimination “intersect”, as discrimination, resulting in a compounded in turn is leading to greater religious and intersectional discrimination has not or “double” disadvantage. A 2013 survey linguistic diversity. The faster speed of travel been expressly pleaded by claimants in of New Zealanders found that migrants means that we are closer to everywhere, discrimination cases. The HRRT has, how- from the South East Asia region were most and migration, tourism and international ever, upheld discrimination claims based likely to report workplace discrimination students are key drivers of New Zealand’s on more than one ground, and considered (14.6%), followed by those originating from economy. the double disadvantage experienced by the Middle East, Latin America or Africa Overseas courts have recognised that some claimants, despite intersectional (12.8%). The survey found that women were a different approach is needed in inter- discrimination not being raised. more likely to experience discrimination sectional discrimination cases to fully than men, whether foreign-born or New understand the nature and extent of the Multiple ground approach Zealand-born. Therefore, adopting a “single disadvantage experienced by the claimant, The overseas cases show that overseas axis” view of diversity and discrimination – and to properly remedy the harm suffered. courts have expressed support for, and for example, addressing gender or ethnicity Continuing to treat discrimination as increasingly applied, a multiple ground 44 approach to discrimination. They also scope of state parties’ obligations under to undertake an active role in promoting illustrate the issues that overseas courts these conventions. These committees have awareness of intersectional discrimination, have encountered in analysing intersec- expressly recommended that state parties generally and as part of its complaints reso- tional discrimination cases, but also show recognise the compounding negative effect lution process, so as to bring greater visibil- that such issues are not insurmountable. of intersectional discrimination on specific ity to this issue affecting the human rights Such issues include the selection of an vulnerable groups. of increasing numbers of New Zealanders. appropriate comparator group (if any), This suggests that, if intersectional dis- Although law reform may not be needed issues relating to proof and causation where crimination is pleaded before the courts, for the courts to recognise intersectional more than one ground of discrimination is they would likely conclude that the right discrimination, clarifying that the NZBORA pleaded, and whether establishing discrim- to freedom from discrimination affirmed and the HRA encompass intersectional and ination on more than one ground should in s 19(1) of the NZBORA is broad enough multiple ground discrimination, as has result in a higher damages award where the in scope to encompass such claims. occurred in Canada with the insertion of claimant has experienced a compounded Greater recognition of multiple ground s 3(1) of the Canadian Human Rights Act, disadvantage. discrimination is needed by lawyers to would ensure greater certainty for claim- There is nothing in New Zealand’s current plead intersectional discrimination, which ants, as well as improving awareness of anti-discrimination laws preventing the should then flow through to the HRRT and intersectional discrimination. adoption of an intersectional discrimination the courts. Ultimately, the experience of an increas- approach in appropriate cases. Indeed, our In a previous New Zealand Law Com- ing number of New Zealanders will be mis- courts have emphasised that, when inter- mission study on the challenges that represented by discrimination conceived preting anti-discrimination legislation such women face in accessing legal services, along a single axis line. The legal profession as the New Zealand Bill of Rights Act 1990 Māori and Pacific women reported that needs to be alive to cases of intersectional (NZBORA) and the Human Rights Act 1993 lawyers needed greater knowledge of discrimination, so that our anti-discrimina- (HRA), a purposive, liberal and untechnical those women’s everyday lives and needed tion framework is responsive to the unique approach should be applied so as not to to communicate legal information in an experience of claimants in such cases. ▪ undermine the purpose of human rights understanding and understandable manner. legislation. Many respondents reported that the Mai Chen is Chen Palmer managing partner and The United Nations human rights com- criminal justice system was unresponsive Adjunct Professor at Auckland University Law mittees, in interpreting international not only to issues of culture, but also to School. The Diversity Matrix: Refreshing What human rights conventions to which New gender. If lawyers know to plead an inter- Diversity Means for Law, Policy and Business in Zealand is a party and on which our sectional approach, the courts and the HRRT the 21st Century by Mai Chen will be launched human rights legislation is based (such are more likely to be amenable to adopting in Auckland on 15 February 2017. It follows the as the International Convention on Civil an intersectional discrimination approach, Superdiversity Stocktake: Implications for Law, and Political Rights and the Convention on and reporting of multiple ground discrim- Policy and Business last November, published the Elimination of Discrimination Against ination is likely to increase. by the Superdiversity Centre on 3 November Women), have also recognised that inter- It would be consistent with the statutory 2015, which has now been downloaded over sectionality is central to understanding the purpose of the Human Rights Commission 130,000 times. 45 LawTalk 902 · 2 December 2016

How banks and financial institutions can use arbitration effectively and efficiently

By Tim Lindsay the existence and conduct of the arbitral proceedings and the arbitral award is of concern, parties should make specific pro- The International Chamber of Commerce (ICC) Commission vision in their arbitration agreement. This on Arbitration Task Force released its multidisciplinary is often a relevant consideration for banks report Financial Institutions and Arbitration on 9 November and financial institutions, principally for 2016. The report addresses how banks and financial insti- reputation and precedent reasons. tutions (and their clients) can use arbitration for efficient and effective resolution of what can be complex disputes. Tim Lindsay Consolidation and joinder The report’s recommendations apply directly to domestic The ICC Rules (as with all leading arbi- dispute resolution in New Zealand. tral rules) permit consolidation of two or more arbitrations in certain circumstances. Report and Summary judgment and dispositive Consolidation will also be possible where recommendations rulings two or more arbitration agreements (say The ICC’s recommendations warrant serious While in this writer’s view arbitral tribunals in related financing documents, such as consideration by our banks and financial have the inherent power to award summary a loan, a swap and a guarantee) provide institutions. The report addresses the histor- judgment and make dispositive rulings expressly for consolidation of disputes aris- ical usage of arbitration by financial institu- provided they have given all parties the ing under two or more of those instruments. tions, the potential benefits of commercial opportunity to be heard, parties can avoid Where parties wish to enable consolida- arbitration in banking and financial matters any ambiguity by specifically providing tion (sometimes they may not) then very and some common misconceptions about for such procedures in their arbitration careful drafting is required to ensure that the process. As regards the latter, the report agreement. Some arbitral institutions have consolidation is in fact possible, practicable answers oft-cited concerns of banks and included this express power in their rules, and the resulting award is valid. Likewise financial institutions regarding arbitration for example the Singapore International for the possible joinder of third parties. such as the ability to obtain interim meas- Arbitration Centre. ures, absence of summary and dispositive Availability of appeal procedures, consolidation and joinder and Expertise of arbitrators International arbitration rules typically the precedent value of published judgments. One advantage of arbitration is the abil- exclude the availability of appeals on Important from a practical perspective, ity for parties, whether in their arbitration questions of fact and law, providing final- the report includes a series of detailed rec- agreement or when appointing their tri- ity to disputes. Given the predominance ommendations for tailoring arbitration pro- bunal, to specify the qualifications and of international arbitration as the means cedures to suit the needs of the banking expertise of the arbitrator(s). Familiarity for resolving cross-border disputes, com- and finance sector. Key recommendations with financial instruments is regularly of mercial parties globally have clearly voted that banks and financial institutions will concern to banks and financial institutions, with their feet in favouring this approach. wish to consider include: particularly in jurisdictions without spe- In domestic arbitrations, however, national cialised commercial and/or financial courts. legislation (including New Zealand’s Interim measures P.R.I.M.E Finance (see below) provides a Arbitration Act) typically requires parties Under the ICC Rules of Arbitration (as with list of industry and dispute resolution to opt-out of appeal procedures. Opting-out all other leading arbitral rules and New arbitrators with expertise in banking and is to be recommended. If institutions do Zealand’s Arbitration Act 1996), prior to the financial instruments. wish to consider retaining appeal rights constitution of an arbitral tribunal parties they should carefully consider whether can seek interim relief from national courts. Confidentiality such procedures are proportionate and New Zealand’s Arbitration Act 1996 makes Arbitration is private, but not necessar- provide the so-called “right answer” sought. it clear that once the tribunal is in place, ily confidential (albeit New Zealand’s it has the same powers as a court to order Arbitration Act contains important confi- Precedent interim relief. dentiality safeguards). If confidentiality of While arbitral awards cannot typically 46 2 December 2016 · LawTalk 902

be published publicly, some arbitral rules Financial Services Expedited Arbitration permit anonymised publication. Parties International Swaps and Procedure for adoption by financial institu- themselves can likewise provide for the Derivatives Association (ISDA) tions. This takes the form of standard form same in their arbitration agreement. The increased interest in arbitration in arbitration clauses that can be included in cross-border finance is reflected in ISDA’s finance documents which mandate that Emergency arbitrators publication in 2013 (after several years of pre-agreed efficient arbitral procedures Under the ICC Rules of Arbitration (as with consultations with its members) of a range be used in the event a dispute arises. A all other leading arbitral rules), before the of optional arbitration clauses, which are copy of the Financial Services Expedited constitution of the arbitral tribunal, par- intended to form part of the Schedule to a Arbitration Procedure can be found at http:// ties in urgent cases can seek emergency Master Agreement. The Model Arbitration arbitrationclub.org.uk/branches/financial- orders for interim relief from an emergency Clauses can be found in the 2013 ISDA sector. arbitrator. This avoids the need to resort to Arbitration Guide which supplements and separate proceedings before the very courts amends the corresponding guidance in the Careful drafting critical that parties, through their agreement to ISDA User’s Guides. The Model Arbitration Planning for disputes is a critically impor- arbitrate, are trying to avoid. New Zealand Clauses provide for use of the leading tant component of managing the risks asso- has amended the Arbitration Act 1996 to institutional arbitration rules, offering ciated with any contract or transaction. confirm that orders made by emergency numerous combinations of arbitral rules, To this end, the report, the ISDA Arbi- arbitrators are enforceable in the same way governing law, and seat. tration Guide and the work of P.R.I.M.E. as awards made by arbitral tribunals proper. Finance and the London Arbitration Club P.R.I.M.E. Finance provides an excellent toolbox for in-house As the report makes clear, these points (and The increasing use of, and anticipated future counsel at banks and financial institutions various other important practical matters) demand for, arbitration of international and their external legal advisors. However, need to be considered in the circumstances financial disputes also led to the estab- in each case careful drafting of arbitration in each case. Important practical and lishment in early 2012 of a new financial agreements is critical to ensure that the strategic matters will arise in any given dispute resolution institution, the Panel of agreement is valid and does the things finance transaction or related transactions Recognised International Market Experts parties want it to do. (whether a ‘one-off ’ or a repeat transaction in Finance (P.R.I.M.E Finance). P.R.I.M.E Particular care is required around com- under standard form documents). Banks Finance’s aim is to provide a bespoke forum plexities common to domestic and inter- and financial institutions should therefore for the resolution of complex international national banking and finance, such as review their options carefully. At the same financial disputes. Its offering includes a expertise and appointment of the arbitral time, the report dispels common miscon- panel of specialist senior arbitrators who tribunal, multi-party and multi-contract ceptions around these issues and other are experts in complex international finan- scenarios, joinder of third parties, consol- aspects of the arbitral process. cial disputes, customised arbitration rules, idation of disputes arising under related mediation and expert services. In the 2013 financing documents and instruments (eg, ISDA Arbitration Guide, ISDA has included loans, swaps, guarantees), emergency arbi- Arbitration of financial in its model arbitration clauses an arbitra- trator powers and interim relief, dispositive disputes on the rise tion clause that provides for arbitration motions and summary judgment, confi- As the report notes, the work of the Task under the P.R.I.M.E Finance Arbitration dentiality, costs, appellate procedures. ▪ Force should not be seen in isolation. Rules. P.R.I.M.E Finance’s website, includ- Rather, the use of arbitration by financial ing copies of its Rules can be found at Lowndes Jordan litigator Tim Lindsay is a institutions and counter-parties has been primefinancedisputes.org. member of the ICC Task Force on Financial increasing steadily over recent years. Other Institutions and Arbitration and led the Sovereign developments that banks, financial insti- London Arbitration Club Finance work stream. He is a member of the tutions and their clients should be aware In 2015 the Financial Sector Branch of the ISDA Arbitration Committee and the Financial of include: London Arbitration Club published its Sector branch of the London Arbitration Club.

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47 LawTalk 902 · 2 December 2016

Court Registrars’ powers (or not) to reject documents

By William McCartney the 10th working day after service, a registrar counts the days from service of the demand (as misstated), determines that it is A recent survey in the vicinity of Shortland Street 1010 the 11th working day, and refuses to accept found that the percentage of litigators who are, or have it. Despite the error in the application, it is been at some time, aggrieved at a refusal of Registry staff still, in fact, made within time, and it can to accept documents for filing, stands at or about 100%. be subsequently amended. If it is refused Court staff as a matter of course (and no doubt they are for filing on that day, the applicant’s rights so trained and instructed): William McCartney are lost. ▪▪ check documents for deficiencies in form, and will reject If anecdotal evidence is to be accepted, them if they believe they are deficient; our new Central Processing regime is ▪▪ check whether documents are out of time, and will a particularly enthusiastic bouncer of reject them if they believe that they are. documents, including, apparently commonly, sending Are they legitimately able to exercise that power? them back many days or even weeks after they were filed. It can be difficult for anyone to decipher some of the form requirements. Despite the ever burgeoning High Court The answer Rules, a process designed, apparently, to ever simplify and Unsurprisingly, there has been judicial comment on the streamline procedure (apologies to the Rules Committee), issue. there remain areas ripe for confusion. Fuimaono v Housing NZ Limited (2000) 15 PRNZ 115 (HC) For example, the Rules say that an application for liq- concerned a refusal to accept an appeal for filing. Justice uidation must be filed in a statement of claim in form Ellis said “…it is not the function of the Registry to decide C1. But try filing an ordinary proceeding against several whether or not the filing of a particular document is out defendants, seeking, among other things, liquidation of of time. It should be accepted and left to the parties to a company on just and equitable grounds, and see how object and to the Court to decide.” well that fits into form C1. Documents filed inTe Toki v Pratt (2002) 16 PRNZ 160 Rule 19.2 says that applications under the Arbitration (HC) had severe deficiencies. Justice Elias said at [16]: Act must be made by originating application, except for “Acceptance will usually be the appropriate course in cases applications for enforcement or for leave to appeal. Yet rule of non-compliance with Rules relating to form. The Court 26.3 insists that applications for leave to appeal under the continues to be able to address irregularities in compliance Arbitration Act must be made by originating application. under rule 5 or rule 18 by setting aside the proceedings In situations like these, and with all due respect to the or any irregularity, by striking out the pleadings, or by court staff, you really don’t want them telling you that requiring amendments.” you have picked the wrong form of document. At [17], (the documents) “… appear to be in parody of On the issue of time, suppose a common or garden legal proceedings. They do not suggest documents filed application to set aside a statutory demand accidentally in Court and giving rise to legal consequences.” misstates the date of service of the demand. At 16:59 on And at [18]: “I consider this to be an extreme case where the Registrar would have been justified in refusing to accept the documents for filing.” In Haden v Wells NZHC [2012] 31 Justice Rodney Hansen, referring to both Fuimaono and Te Toki, said that while acceptance will usually be the appropriate course, “… in cases where the deficiencies are gross and palpable and the documents are not capable of giving rise to legal consequences, the Registrar is justified in refusing leave.” “What about rule 5.2(1)?” you might ask. That rule says: “A document that does not comply with rules 5.3 to 5.16 may be 48 2 December 2016 · LawTalk 902

received for filing only by leave of a Judge or persons are leaving the jurisdiction. the Registrar.” Rule 5.2 must be read subject Except for the Except for the extreme cases which meet the established to the authorities. In effect, the authorities high threshold for rejection, it is plainly the province of say that the Registrar must usually grant extreme cases the parties and judges to deal with documents that the such leave. which meet registry thinks do not comply. Therefore the established Solution Acceptance of deficient documents is the The law already being clear, court registries should be appropriate course where there is non-com- high threshold required to follow it. pliance in form. for rejection, Where a document is believed to be non-compliant in The registry may not refuse to accept form, but does not reach the high threshold for rejection, documents for filing except in the extreme it is plainly the I suggest the registry should: case where they are grossly deficient and province of the ▪▪ accept the document for filing; cannot give rise to legal consequences. ▪▪ bring the apparent deficiency to the attention of the It is not the registry’s function to deter- parties and lawyer filing it, so that the lawyer can choose what steps mine whether or not a document is out to take, which might include accepting that it should of time. judges to deal not be filed as is, or filing a subsequent amending doc- When the registry chooses not to follow with documents ument, or filing an application to extend time, etc; and those established principles, not only is ▪▪ note the file, so that it will come to the attention of the time and money and energy wasted in that the registry judge dealing with it. The judge can then exercise his/ argument, but a real danger exists of irrep- her jurisdiction as appropriate, including hearing from arable damage being done. Delay caused by thinks do not the parties. ▪ inappropriate rejection might be fatal to the comply applicant’s chances of obtaining relief, for William McCartney is an Auckland barrister who specialises example where assets are being disposed of; in construction, contract, land, company law and relationship where evidence is being destroyed; where property.

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49 LawTalk 902 · 2 December 2016 Law Foundation

Celebrating a successful year

By Lynda Hagen attracting public interest and generating debate among experts in their fields. They cover ACC appeals, human rights, mental capacity, foreign relations law and a sug- 2016 has been another highly successful gested new written Constitution for New Zealand. year for the Law Foundation. Our projects The ACC appeals project has helped change the course are having a real impact across diverse areas of government reform to the ACC appeals process. The of law and public policy. work by ACC claimant support group Acclaim Otago, led The Foundation’s success is creating by Warren Forster and supported by the Otago University growing interest among researchers. We Lynda Hagen Legal Issues Centre, highlighted numerous problems with currently have around 90 active projects, the appeals process that create serious barriers to justice subject to final decisions on the current for people challenging ACC decisions through the court round of applications. That compares with system. around 70 last year, and 50 the year before. The Acclaim Otago work prompted the Government to This final column for the year covers a few selected halt setting up its planned new appeals tribunal, with then highlights among the projects we have supported this ACC Minister Nicky Kaye acknowledging that Acclaim year. I’ve chosen these to illustrate the range of our work. Otago’s report had raised “genuine issues.” The team is now focused on finding solutions to the issues identified Major research project in the earlier research. Once every five years or so, we undertake significant, com- missioned research that aims to create lasting impact. Genetics, neuroscience and medical This year we started our Information Law & Policy Project law (ILAPP), a $2m research fund for projects that will better The Law Foundation has a good record of backing projects prepare New Zealand for the challenges of the informa- that identify necessary changes to laws covering the rap- tion age. idly-changing fields of genetics and human reproductive ILAPP seeks to develop law and policy around IT, data, technologies, and other areas of law and medicine. Four information, artificial intelligence and cyber-security. of our studies cover the future selective reproduction The project will bring together multi-disciplinary teams techniques and genetic testing; rethinking surrogacy of experts to examine challenges and opportunities in areas law; forensic brain scan analysis for criminal and civil such as global information, the future of legal services, investigations; and pre-trial collection and retention of regulatory models, data exploitation, and technology-driven DNA evidence. social change. The forensic brain scan analysis pilot project involves We have listened to a wide range of experts to determine remarkable new technology with potential to revolution- how the project can best benefit the economy and society. ise the collection of evidence for use in criminal and civil An independent specialist review committee is advising investigations and trials. It will examine the validity of the Law Foundation on this work and our first round of reading brainwaves to help in criminal investigations, by applications have just been assessed. assessing the brain’s reaction to information known to the individual. The novel brain-scanning technology involved High impact projects was pioneered in the United States by Professor Lawrence Five recently-completed Law Foundation projects are Farwell, and our study, led by Professor Robin Palmer of Canterbury University’s Law School, will include an investigation into the relevant legal and ethical issues. Family law and family violence Providing Professional Indemnity and specialist insurance Among five projects related to family law products to the Legal Profession issues is a comprehensive study of how well Visit www.justitia.co.nz for further information and application forms the 2014 Family Court reforms are working. Or Contact: Mr Ross Meijer, Aon New Zealand An Otago University Law Faculty research 04-819-4000 team led by Professor Mark Henaghan and [email protected] Nicola Taylor, Director of the Children’s Issues Centre, has started a two-year, 50 Law Foundation 2 December 2016 · LawTalk 902

$400,000 study of parents’ and practition- led by Associate Professor Alexandra Sims Treaty settlements and histories of British ers’ experiences of post-separation family of the Auckland University Business School, conquest and Treaty claims. Subscribers resolution. and comprises a mix of legal and banking/ include libraries, government agencies and Professor Henaghan points to anecdo- finance academics. This is one of four com- educational institutions. tal feedback that the new process is not mercial law projects currently supported working well. He says it’s important to by the Foundation. Environment fully understand why people are using the Our recent environment-related projects process in unintended ways, and the con- Law reform, legal writing, include the book Vanishing Nature: Facing sequences for the sustainability of agreed constitutional matters New Zealand’s Biodiversity Crisis. This separation arrangements. The Justice Among five projects in this area is topical Environmental Defence Society project was Ministry strongly supports the research, work analysing how our law can be “disas- the first comprehensive stock-take of the and is helping the researchers with access ter-proofed” to allow quicker, more effective country’s natural heritage and efforts to to information under the Foundation’s resolution of disaster-related legal issues. protect it. It found that existing measures Memorandum of Understanding with the The project, by Professors Elizabeth Toomey are failing to protect threatened species like ministry, a formal co-operation agreement and Jeremy Finn with Dr John Hopkins, of the kiwi, the kauri and the kokopu (white- established over two years ago. the Canterbury University Law School, will bait). EDS’s follow-up study, Pathways to consider desirable changes in the light of Prosperity, looked at the practical changes Supporting youth, disaster experiences in New Zealand and needed to better protect our biodiversity fol- minorities and vulnerable overseas. lowing the challenges identified in Vanishing groups Nature. A further report with a working Our four current projects include an online Courts and juries research title Last Line of Defence: compliance and guide for legal professionals on how best One project from research funded on court enforcement of environmental law in New to assist vulnerable people’s participation processes involves court delays. People are Zealand should be published in early 2017. in court proceedings. This follows related becoming litigants in person because they Foundation-funded work by Dr Brigit cannot afford the cost of civil proceedings, Research support, legal Mirfin-Veitch (Donald Beasley Institute) recent research by the University of Otago information, training and and our 2012 International Research Fellow Legal Issues Centre shows. Dr Bridgette education Dr Emily Henderson. Their earlier research Toy-Cronin’s research team is carrying out Extensive Law Foundation support in this highlighted how vulnerable people’s access a two-year study of patterns of timeliness area includes submissions on law reform, to justice was being impeded, and how it in civil High Court cases. development of access to legal informa- could be enhanced. They have teamed up tion, continuing legal education training on the new project with Law Foundation Legal history for the profession, and mooting competi- encouragement. Our five current legal history projects tions. Notable research this year was Josh include work led by Justice Glazebrook Pemberton’s report on retaining graduates International law and on oral histories of senior women judges, in the profession, First Steps – the experiences human rights covering their experiences in the judici- and retention of New Zealands’ junior lawyers. Among six related projects, one looks at ary, their careers, and the perspectives and This is a sample of some of our work. You whether small, low-lying, disappearing contributions they provide. can find out more from our websitewww. Pacific island states will retain any inter- lawfoundation.org.nz or our Facebook page. I national legal personality after most of their Māori and Treaty issues wish you a Happy Christmas and New Year people are displaced by climate change- Two Foundation-supported projects in and look forward to sharing more on the driven seawater inundation. The work by this area include the Treaty of Waitangi Law Foundation research projects in 2017. ▪ Associate Professor Alberto Costi of Victoria e-collection published by Bridget Williams Law Faculty will examine the obligations of Publishing Trust. In early 2016 the e-collec- Lynda Hagen is the Executive Director of the countries like New Zealand to help people tion went live, giving subscribers access to New Zealand Law Foundation. made stateless by climate change. significant works on the Waitangi Tribunal, Commercial Digital currencies such as bitcoin are Trusted practice management poised to revolutionise the finance world and beyond, and pose challenges for law- software for NZ lawyers makers and regulators around the world. Easy to learn, easy to use. Save time and The regulating digital currencies project, the ! first approved under the Law Foundation increase profits. That’s what users say Information Law and Policy Project (ILAPP), New: Document management & Internet banking. 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PROGRAMME PRESENTERS CONTENT WHERE WHEN CIVIL LITIGATION

COSTS IN CIVIL Andrew Beck Costs are often an important part of a legal claim and while Webinar 7 Dec LITIGATION Shane Campbell the successful party may have an expectation that costs will be awarded in its favour it is unlikely that they will receive 1.5 CPD hours full reimbursement for the expenses incurred. This webinar will canvas key cost related issues including: costs at ﬁ rst instance, costs on appeal, certain speciﬁ c costs issues (such as costs on discontinuance, summary judgment etc), and the principles regarding appeals against costs decisions.

COMPANY, COMMERCIAL AND TAX

GUARANTEES Michael Lenihan This seminar provides a refresher on the essentials of Christchurch 28 Feb Bruce Stewart QC guarantee law, an update on recent case law developments, Wellington 1 Mar 3.5 CPD hours and guidance on compliance with recent legislative amendments (including the Credit Contracts and Consumer Auckland 2 Mar Finance Act 2003 and the Responsible Lending Code). Webinar 1 Mar 2 CPD hours

INTRODUCTION TO John Horner A practical two-day “transaction” based workshop that will Christchurch 13-14 Mar COMPANY LAW Ben Johnston equip you with the knowledge and understanding to deal Wellington 13-14 Mar with the purchase, establishment, operation and sale of a Andrew Leete Auckland 15-16 Mar 13 CPD hours business. A popular, regular in the CLE calendar. Mark Odlin Graeme Switzer Daniel Wong

FAMILY

LAWYER FOR CHILD Hana Ellis This workshop has been designed to ensure participants Wellington 22-24 Mar Jo Leech have the opportunity to develop the full range of skills, 18.5 CPD hours knowledge and attitudes required to carry out the role of Jason Wren Lawyer for Child e ectively.

GENERAL

CPD TOP UP 2017 Chairs: Designed for the busy general practitioner to “top-up” your Jason Wren year’s CPD. A one-day programme o ering 7 hours face-to- Christchurch 14 Feb 10 CPD hours John Greenwood face CPD together with a bonus 3 hour Online CPD, for you Wellington A 15 Feb to complete when and where it suits. Whatever your level of Jane Meares experience, the programme will provide practical advice on Wellington B 15 Feb Stephen Langton hot topics across a range of practice areas, with a regional Auckland 16 Feb focus and presented by an impressive line-up of speakers.

MEDIA LAW William Akel Media Law is often a theatre for conﬂ ict with the courts and Christchurch 21 Feb Steven Price bodies regulating standards forced to grapple with a range Wellington 22 Feb 3.5 CPD hours of fundamental issues, including reputation, privacy, fair trial Robert Stewart rights, suppression, and freedom of expression. This seminar Auckland 23 Feb will help ensure that you have a strong understanding of the Webinar 22 Feb 2 CPD hours issues and developments in this area, and are able to give robust advice when confronted with media issues.

PRACTICE & PROFESSIONAL SKILLS

STEPPING UP – Director: All lawyers wishing to practise on their own account whether Auckland 1 9-11 Mar FOUNDATION FOR Stuart Spicer alone, in partnership, in an incorporated practice or as a Christchurch 11-13 May PRACTISING ON OWN barrister, will be required to complete this course. (Note: Auckland 2 13-15 Jul ACCOUNT 2017 From 1 October 2012 all lawyers applying to be barristers sole are required to complete Stepping Up). Developed with the Wellington 7-9 Sep 18.5 CPD hours support of the New Zealand Law Foundation. Auckland 3 9-11 Nov

PROPERTY

TRUSTS - A LIFE CYCLE Geordie Hooft This seminar will consider how you can assist your clients Christchurch 21 Mar Tammy McLeod in structuring their ﬁ nancial a airs in order to protect and Wellington 22 Mar 2.5 CPD hours enhance their asset base. It will include legal and accounting perspectives in providing practical advice for setting up Auckland 23 Mar and maintaining trusts that meet the speciﬁ c needs of these Webinar 22 Mar 2 CPD hours clients as their circumstances change over time.

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ONLINE CPD - LEARNING ON DEMAND Added beneﬁ ts: Online CPD modules are short, online learning • Convenient 24/7 access programmes that you can complete 24/7. All you need • Learn at your own pace is a computer, tablet or smart phone that is connected • Complete in one go or pick up where you left o to the internet – there are no apps to download. • Includes booklet 100+ modules to choose from – new modules added • Priced from $91 incl GST regularly. All modules are CPD compliant. Check it out at www.lawyerseducation.co.nz

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For a list of modules available see www.lawyerseducation.co.nz LawTalk 902 · 2 December 2016

Miscarriage of justice Lawyers “The Court [of Appeal] concluded: ‘We are satisfied that the accused were placed in an unfair disadvantage by the non-disclosure Complaints Service of the sentencing notes of 31 May, as were the Judge and jury and that a miscarriage of justice resulted. There is no doubt that charge was proved on the balance of prob- had the Judge and jury been informed of abilities to the high standard required in the presence of the discount they would Misconduct relation to such a serious allegation,” the have been much better informed of the Tribunal said. context within which L was to give and charges Mr E sought permanent name suppres- gave evidence.’ “ sion, and the Tribunal made a permanent Mr A later brought his complaint. He dismissed name suppression order. alleged that Mrs Currie had deliberately “The practitioner, having had these failed to disclose to him, to counsel for The New Zealand Lawyers and Conveyancers charges against him dismissed, is entitled other accused, and to the trial Judge, the Disciplinary Tribunal has dismissed two to protect his reputation. We consider that full details of the discount provided to L. misconduct charges and alternative lesser there is no issue of public protection or For Mrs Currie, it was submitted that: charges filed against a lawyer, Mr E, and public interest in the proceedings which “Mrs Currie’s error in not providing the granted him permanent name suppression. outweigh this right,” the Tribunal said. trial Judge and counsel with a full copy of The first charge Mr E faced in [2016] The Tribunal hearing costs payable by [the] sentencing notes (a publicly available NZLCDT 30 was that he had misled the the Law Society were $10,398 but no order document) was a minor and inadvertent court about the state of his instructions. was made for the practitioner to reimburse error of judgment (sic), made in good faith “We accept, without question, that the them. ▪ in the midst of a lengthy, complex and mul- privileged position of an advocate address- tiple accused trial, which abounded with ing a court demands that the court is able legal and evidential issues”. to be absolutely confident that it can rely The committee did not agree that the non on information that is provided to it by Censure and fine disclosure of the sentencing notes was a counsel,” the Tribunal said. minor and inadvertent error of judgement, “In this case, however, the background for non disclosure nor did it accept a submission that Mrs contextual matters were such that we were Currie’s interpretation of the sentencing notes satisfied that Mr E certainly did not intend to Christchurch lawyer Philippa Anne Currie was a reasonable one in the circumstances. mislead the court and that it is likely at the has been censured and fined $500 by a The committee said it considered the time, given his focus on information which lawyers standards committee for mislead- decision made to be negligent on her part, he still awaited from his client, that he consid- ing the Court and not disclosing relevant and that “it can hardly be described as a ered he was making an accurate statement.” material to a self-represented defendant. minor error of judgment for Mrs Currie to The second charge was that when send- Mr A was co-accused in a trial in 2007, have failed to disclose a document which, ing a client’s file to another lawyer, Mr E had following which he was sentenced to a as the Court of Appeal found in dealing omitted two items. The Tribunal accepted term of imprisonment. with Mr [A]’s appeal, so obviously ought Mr E’s evidence that he had sent everything During his trial, Mr A applied to have the to have been disclosed in full.” on the file. evidence of a key Crown witness, L, excluded The outcome of Mrs Currie’s non disclo- The charges arose in relation to Mr E because he believed an inducement had been sure of the full sentencing notes was that receiving instructions from a client about provided to that witness, namely a discount Mr A was deprived of an opportunity to a civil claim. in sentence on other matters. However neither the Court, Mr A, or Lawyer tried very hard defence counsel acting for other defend- Alfred John Mansell “We consider that this was a practitioner ants, were made aware of the full sentenc- Anyone knowing the whereabouts who tried very hard to achieve his client’s ing notes which showed there had been or possessing a signed copy of the instructions, putting considerable effort a discount in the sentence imposed on L will of the above named, who died into the proceedings, seeking peer support as a result of assistance provided by him in December 1943 and owned land and guidance from a second lawyer and, to the Police, which also resulted in him in Lower Hutt, please contact Mr L Chin, The Property Group Limited: through that lawyer, not only giving oral pleading guilty to lesser charges. advice to his client but following it up ... This was because only a partial extract  [email protected] with a written summary of the position, of the sentencing notes was disclosed by  04 470 6103 seeking further instructions. Mrs Currie.  PO Box 2874, Wellington 6140 “The client did not provide the instruc- The Court of Appeal allowed an appeal This notice is in regard to satisfying the tions sought by the lawyer. by Mr A against the convictions entered provisions of Section 40 Public Works Act 1981 “In summary we did not find that the in the trial where L had given evidence. 54 2 December 2016 · LawTalk 902

pursue his application for the exclusion of Rule 13.1 of the Lawyers and Conveyancers Mrs Currie had made an error of judge- L’s evidence, the committee said, noting that Act (Lawyers: Conduct and Client Care) ment, she had not acted deliberately or “the error was not minor because the inter- Rules 2009. However the committee did deceitfully, and that any person reading the pretation placed on the [sentencing] notes consider, for the same reasons as it had committee’s determinations in full would by Mrs Currie was untenable”, and that this concluded that there had been a breach appreciate that the committee accepted erroneous interpretation had led Mrs Currie by Mrs Currie of her duty to Mr A, that she that Mrs Currie was an honest and capable into repeated error and continuing breaches had made a significant error in a way that practitioner, unlikely to transgress again. On of her obligations as a prosecutor. misled the court. the other hand the committee also recorded The committee, in its first determination its view that the unsatisfactory conduct dated 17 November 2010, concluded that Name publication found was serious and that the penalties Mrs Currie’s conduct, in failing to make The committee said it considered publica- imposed reflected that. disclosure of relevant documents in accord- tion of Mrs Currie’s name to be necessary “Nor does the committee accept that pub- ance with her obligation to disclose all rel- and in the public interest. It noted that lication of Mrs Currie’s name, in the context evant evidence, breached her duty to Mr many people would be aware of the fact of the determinations the committee has A, and accordingly found unsatisfactory that Mrs Currie had faced disciplinary pro- reached, will undermine the effectiveness conduct on Mrs Currie’s part. ceedings because of them in reported court of the Crown Solicitors office. Rather, the This determination was confirmed in a decisions in which no orders for suppres- committee has concluded that publication further determination dated 19 May 2014, sion had been made. The committee also of Mrs Currie’s identity serves to reinforce in which the committee determined that considered that in the interests of clarity the objective of ensuring that appropriate Mrs Currie had breached the professional and to avoid any mistaken identity of other standards of conduct are maintained in the obligations owed by her to the court in persons as being subject to the complaints, public interest, and ensuring public confi- respect of the non disclosure of the mate- it was desirable to direct publication of dence that practitioners in positions such as rial referred to, to Mr A, counsel for other Mrs Currie’s name. that of Mrs Currie are accountable for any accused, and the trial Judge. The committee took into account the failure to meet them,” the committee said. The committee did not accept that there impact of publication on Mrs Currie, but As well as the censure and $500 fine, had been a deliberate breach by Mrs Currie reiterated the view recorded in each of the committee ordered Mrs Currie to pay of her obligations to the court as reflected in its earlier determinations, that although $2,000 costs. ▪

Law Society Registry Comments concerning the suitability of any of the below-named applicants for the certificate or approval being sought should be made in writing to me by 8 December 2016. Any submissions should be given on the understanding that they may be disclosed to the candidate. The Registry is now advertising names of candidates for certificates of character, practising certificates and approvals to practise on own account on the NZLS website at www.lawsociety.org.nz/for-lawyers/law-society-registry/applications-for-approval. — Christine Schofield, Registry Manager  [email protected]  04 463 2940  0800 22 30 30  04 463 2989

Maclaurin Emmet Patrick Peters Admission Gadsby Pamela Jean Wall Findlay Niall (previously Hensman) MacLeod Alasdair Crawford Watson Dara Joy (previously Under Part 3 of the Lawyers Goulden Elizabeth Macpherson Ashley Caradus Dara Joy) and Conveyancers Act 2006 Louise Murphey Jane (née Elliott) Wills Augusta Elizabeth Grace Beverwijk Josie Lee Hailes Oliver Francis Gibson McIvor Rachel Elizabeth Wilson Chloe Olivia Bishop Joyleen Margaret Hannaway Lara Imelda McManus Shawn Marie Harte Wilson Paula Jane Brown Andrew James Melbourne Helgadottir Linda Dora Moor Kerry Morgan Woolley Matthew David Campbell Samuel Helm Devon Mairead Needham Anna Gabrielle William O’Driscoll Hillier Edward John Piers Nyhan Lauren Elizabeth Coghill Hamish David Approval to Practise Ho Sherlene Lynn Lynn Nyika Joshua Luke Comrie-Thomson on Own Account Paul Ian Charles Holland Katia Ruruhira Parker Ashleigh Claire Under s 30 of the Lawyers Cowan Aimee Elizabeth Imboden Daliah Marcelle Pouwell Christoper and Conveyancers Act 2006 James Cornelis Cranston Emma Leigh Jackson Daniel Nelson Blacktop David Anthony Kevin Jarman Thomas Edwin Te Heuheu Morgan Elizabeth Belworthy Rochelle Lee Cutler Thomas Mathew Bernard (previously Houpapa) Johnston Nicole Shenae Bielby Carolyn Maree Davis Jack Stephen Thomson Samuel Maxton Jones Anita Sidney Adele Davies Joanne Pamela de Montalk Louisa Jean Ussher Natasha Dorothea Deed Courtney Lanette Jones Mereaira Susan Maree (née Hubbard) Elliott Shane Philip Howard Everton Amelia Jean Kaur Pervinder Vaiusu Betty Vaivasa Faafouina Endean Claire Christine Fannin-Meeter Marja Lindsay Van Maitreya (also known as Vasa) Fitchett David Ian Marie Anna Hanskje Luxford Stephanie Lie Vanderwee Angela Mary Kelly Fionnuala Mary Firth Kate Rose Lyon Natalie Margaret Waitai Pirihira Te Hei Ruru Lillian Slevin Grant Edward

55 LawTalk 902 · 2 December 2016

Leanne Rosemary Fraser (nee Vincent) Janyce Elizabeth Pratt Wills Would any lawyer holding a will for the above named, Would any lawyer holding a will for the above named, late of Kimihia Rest Home and Hospital Huntly, who died on 3 November 2012 in Napier, please Auld, Eunice Alison Lockyer, Alan Royd formerly of 33 Joseph Street, Pukemiro, Ngruawahia, contact James Drysdale, Hansen Bate Limited: Conlon, Alan Mathews, Verghis Retired, born on 17 February 1942, who died on 3  [email protected] Edwards, Simerka Mannukal May 2015, please contact Burley Attwood Law:  06 873 0900  06 873 3251 James Christopher Potae, Urukahinga  [email protected]  PO Box 235, Hastings 4156, DX MA75009 Elkington, Aaron Theresa  07 928 9000  07 928 9001 Wineera Pratt, Janyce Elizabeth  PO Box 13120, Tauranga 3110, DX HP40090 Timothy Rankin Firth, Michael John Rankin, Timothy Would any lawyer holding a will for the above named, Fox, Derek Hubert Read, Richard Graham Peter Christian Gosche late of 9 West End Avenue, Whangarei, born on 2 Would any lawyer holding a will for the above named, Fraser, Leanne Robertson, Christine November 1952, who died on 13 November 2016 Rosemary late of 85 St Georges Road, Avondale, Auckland, at SH 1, Mata Ruakaka, please contact Linda Stringer, Fiona born on 26 November 1953, who died on 4 June Gosche, Peter Margaret Robertson, Henderson Reeves: 2016, please contact To’o To’oala, To’oala Law:  Christian Tino, Thomas [email protected]  [email protected]  09 430 4350  PO Box 11, Whangarei 0140 Guptill, Wendy Kay Esera Faualo  09 360 3240  09 360 2180 Hammond, Derek Tino, Makareta  PO Box 46018, Herne Bay, Auckland 1147 Norman Todd, Gregory Charles Richard Graham Read Would any lawyer holding a will for the above named, Ivankovich, Robyn May Walker, Mairia Leah Wendy Kay Guptill Laifa, Elisapeta Would any lawyer holding a will for the above named, late of 13 Claremont Street, Grafton, Auckland, born late of 20 James Road, Manurewa, Auckland, born on 23 August 1959 in Auckland, who died on 21 on 7 December 1972, who died on 25 October 2016, August 2016 at Auckland Hospital, please contact Eunice Alison Auld Miles Brown, Castle Brown: Would any lawyer holding a will for the above named, please contact Sue Styants at Styants law:  [email protected] late of 1 Bremworth Avenue, Hamilton, who died on  [email protected]  09 298 0138  09 307 7054  09 302 0795 20 August 2016 at Hamilton, please contact Maurice  PO Box 72116, Papakura 2244  PO Box 9670, Newmarket, Auckland 1149 Turketo, Frankton Law Ltd: DX EP76521, Papakura DX CP 31002  [email protected]  07 847 2700  07 847 2730 Derek Norman Hammond  PO Box 5232, Frankton, Hamilton 3242 Would any lawyer holding a will for the above named, Christine Robertson DX GB21005 late of 274 Saleyards Road, RD 1, Kamo 0185, born on Would any lawyer holding a will for the above named, 28 March 1967, who died at Whangarei on 31 October late of 78A Calliope Road, Stanley Point, Auckland Alan Conlon 2016, please contact John Gilding & Associates: 0624, Retired, born on 2 June 1944, who died on Would any lawyer holding a will for the above  [email protected] 28 September 2016, please contact Janice Baird: named, late of Auckland, Retired, who died on 14  09 438 3066  09 438 3065  [email protected]  021 521 933 November 2016, please contact Lianne Meyer of  PO Box 548, Whangarei 0140  PO Box 18342, Glen Innes, Auckland 1743 Rick Williams Associates:  [email protected] Robyn May Ivankovich Fiona Margaret Stringer  09 447 1837  09 447 1836 Would any lawyer who has previously acted for or Would any lawyer holding a will for the above named,  PO Box 300-748, Albany, Auckland 0752 who holds a will for the above named, late of Thames, aka Fiona Margaret Balch and Fiona Margaret DX BP61716, North Harbour born on 30 May 1955, who died on 25 October 2016, Taylor, late of 10 Irvine Road, The Cove, Dunedin, please contact Jacqui Owen, GM Legal: born on 24 November 1952, who died on 1 November Simerka James Christopher  [email protected]  027 221 9473 2016 at Dunedin, please contact Helen Meiklejohn, Edwards  09 834 8055  PO Box 45167, Te Atatu O’Neill Devereux Lawyers: Would any lawyer holding a will for the above named, Peninsula 0651, DX EX11031  [email protected] aka Simerka James Christopher, late of Ngakuru,  03 477 6801  03 479 0201 Rotorua, Loader Driver, born on 6 January 1974, Elisapeta Laifa  PO Box 909, Dunedin 9054, DX YX15043 who died on 27 September 2016, please contact Would any lawyer holding a will for the above named, Cleone Campbell, Shieff Angland: late of 67 Aorangi Road, Bryndwr, Christchurch, Thomas Esera Faualo Tino Commercial Cleaner, who died on 11 May 2015,  [email protected] Makareta Tino  09 300 8760  PO Box 2180, Auckland 1140 please contact Jason Cowan, Kaiapoi Legal Limited:  [email protected]  03 327 9245 Would any lawyer holding a will for the above named, Aaron Wineera Elkington  PO Box 435, Kaiapoi 7644 Thomas Erera Faualo Tino, aka Esera Tino, who died on 3 May 2016 and Makareta Tino, aka Margaret Would any lawyer holding a will for the above named, Alan Royd Lockyer Tino, who died on 26 October 2016, both of Swanson, late of 170a Fosters Road, Hamilton, who died on 17 please contact Richard John Connell, Connell & October 2016 at Hamilton, please contact Maurice Would any lawyer holding a will for the above named, Connell Auckland: Turketo, Frankton Law Ltd: aka Royd Lockyer, late of 1455 State Highway 1,  [email protected]  Waikuku (RD3) Rangiora, formerly of 4 Balmoral [email protected]  09 309 0984 or 027 494 0234   Place, Ashubrton, Retired Truck Driver, born on 1 07 847 2700 07 847 2730  PO Box 2582, Auckland 1140  PO Box 5232, Frankton, Hamilton 3242 December 1942, who died at Rangiora, Christchurch DX GB21005 on 8 September 2016, please contact Leanne Wright, Lyon O’Neale Arnold, Lawyers, Tauranga: Gregory Charles Todd Michael John Firth  [email protected]  07 928 4427 Would any lawyer who has previously acted for Would any lawyer holding a will for the above named,  07 928 4420  PO Box 746, Tauranga 3140 or who holds a will for the above named, late of late of 15 Maldon Court, Dannemora, Auckland, NZ, Warkworth and previously of Auckland, who died on born on 16 January 1948, who died on 9 October 2016, Verghis Mannukal Mathews 20 September 2016, please contact Wynyard Wood: please contact Stephen McKenzie, SPM Law Limited: Would any lawyer holding a will for the above named,  [email protected]  [email protected] late of Wellington, who died on 1 January 2012,  09 422 2186  09 533 8042  09 533 8057 please contact Nicki Sowman, Malley & Co:  PO Box 468, Warkworth 0941  PO Box 38 538, Howick, Auckland 2145  [email protected]  03 363 6351  03 365 4613 Mairia Leah Walker Derek Hubert Fox  PO Box 1202, Christchurch 8140 Would any lawyer holding a will for the above named, Would any lawyer holding a will for the above named, late of 51B Sinclair Road, North Taieri, Dunedin, late of Mapua, Tasman, Contract Manager, born on 10 Urukahinga Theresa Potae who died at Mosgiel, Dunedin on 19 November August 1952, who died on 24 September 2016, please Would any lawyer holding a will for the above named, 2015, please contact Bonnie Zareh, Macalister contact Emma Marshall, Hamish.Fletcher Lawyers: late of 14 Ingram Crescent, Otara, Auckland 2023, Todd Phillips:  [email protected] please contact Lisa Walsh, Brookfields Lawyers:  [email protected]  03 539 0210 or 021 811 513  [email protected]  03 441 0125  03 442 8116  PO Box 1673, Nelson 7040  09 979 2219  DX CP24134  PO Box 653, Queenstown 9300 56 2 December 2016 · LawTalk 902

SOLICITOR ROOM AVAILABLE COMMERCIAL & PROPERTY Vulcan Building Chambers has a large room opening to a We are a well-resourced, progressive firm based in Waitakere sunny deck available to a barrister wishing to share facilities City. We are looking for an experienced commercial and property with five other barristers. An adjacent secretarial area and a solicitor to join our team. The work is varied and includes small room for a junior barrister is also available. The well- commercial matters, leasing, general property matters, trusts established chambers are located on the top two levels of the and some estate planning. historic Vulcan Buildings in Vulcan Lane and enjoy a quality contemporary fit-out. Our firm specialises in unit title advice and the role will also Facilities include: Website, boardroom, library, kitchen, involve working closely with owners and bodies corporate of shower, ultra fast broadband, networked printing and unit titles, advising on the wide range of legal matters that arise photocopying and VOIP phone system. The chambers have a with those. Ideally you will have 3 to 7 years’ experience and dedicated and capable receptionist/office junior. be familiar with edealing. However, we are flexible if the right Please email: [email protected] person presents, including a more junior solicitor with relevant or phone 09 300 1253 experience or a solicitor of wider experience. We pride ourselves on our friendly, collegial environment and offer modern offices, freely available mentoring and excellent support. We are conveniently located near the North Western AUCKLAND PRACTICE motorway. We will offer the successful candidate competitive WANTED remuneration.

Please apply by email to [email protected] or by mail to: Experienced NZ qualified and trained senior Price Baker Berridge, PO Box 21-463, Henderson, Auckland 0650 associate level solicitor wishing to acquire All applications will be treated in the strictest confidence. successful Auckland based practice. Open to a possible merger of your firm with current successful Auckland based practice. Please email in confidence: [email protected]

All enquiries will be treated in the strictest confidence.

Litigation Solicitor Whakatane – Bay of Plenty

Are you looking for a role that offers a real work-life balance, autonomy and opportunities for career advancement all in a premium lifestyle location? Osborne Attewell Clews is We are looking for an experienced, bright looking for you. and talented lawyer to join our team. Osborne Attewell Clews is a well-known and trusted law firm that has been providing legal services to the Eastern Dorrington Poole is a long established law firm based in Bay of Plenty for over 70 years. We are passionate about Dannevirke, Southern Hawkes Bay. providing high quality legal advice that is both practical and understandable. We recognise that the world is The ideal candidate will be ambitious, honest, online and use leading edge software and legal practice community minded and be able to engage confidently management software to connect with our clients and with clients and other practitioners. their businesses. Terms of employment are to be negotiated and will We are looking for a litigation solicitor with no less than 2 reflect the experience and ability of the successful years PQE to work primarily on family law matters but also applicant. with the opportunity for exposure to civil and commercial This is an opportunity to work in a diverse rural legal litigation, employment and local government dispute practice with a progression path to partnership for the resolution. We offer high quality diverse work, autonomy right candidate. in a supportive environment and an energetic workplace culture. Applications, together with your CV should be sent to David Roberts - [email protected] or mailed to If you are looking for the opportunity to live and work in Dorrington Poole, PO Box 69, Dannevirke, 4942. a sunny climate that boasts endless lifestyle opportunities then we would like to hear from you. Closing date for applications is 20 January 2017. To apply please email your CV to Karen Sharp, Office Manager All applications will be treated as confidential. email: [email protected] 57 LawTalk 902 · 2 December 2016

An unusual opportunity SENIOR LAWYER (4+ PQE) Are you looking for a senior role in a collaborative team, where The untimely death of our long serving and respected Resident you can make a positive difference? Solicitor in Foxton has created a vacancy. The Waitematā Community Law Centre provides a supportive The ideal person for the job would be a person with a young work environment for you to assist clients who are real and their family who wishes to settle in a semi-rural area with all its issues broad, challenging and interesting. You can help our advantages including, but not limited to, an interesting variety clients achieve life changing results! of legal work, low cost housing, easy access to work from home, We are seeking a dynamic senior lawyer (minimum four years no traffic, a slow pace of life, stable supportive staff, small schools PQE) who is eligible to practice on their own account, to oversee and easy access to recreational facilities. legal services provided to our community. Foxton is 45 minutes drive from the High Court at Palmerston You will: North and 25 minutes from the District Court at Levin. • Manage and lead the legal team including volunteers A practitioner with some experience in conveyancing, estates • Provide practical advice at a senior level and family law would be preferred however we will consider all • Work with the Manager to implement strategic direction, applications. and gain managerial experience We have excellent experienced office staff at Foxton and • Build strong relationships with the community our support and supervision systems are efficient and well • Be committed to providing access to justice established. We have 14 staff working from four offices; Foxton, General experience including family, employment, consumer law, Otaki, Paraparaumu and Porirua. Our expertise extends to all residential tenancy and criminal would be ideal, but not essential. areas of general practice from Courts and tribunals, through to company and commercial work, family law, wills, estates and Applications close 16 December 2016 conveyancing. A suitable candidate would be well rewarded and have an exceptional opportunity to expand the practice and Please contact Louise: remuneration from a well-established base. [email protected] In the first instance please reply with references by email to: for Job Description & Application Form. [email protected]

PROPERTY LAWYER Senior / Associate Senior or intermediate Relationship Property and • Experienced commercial property lawyer • 4-8 years’ experience Civil Litigation Lawyer • Auckland CBD location WRMK is a large law firm in Whangarei with branches in We are a progressive full service law firm with a strong Dargaville and Kerikeri. We are a member of the Lawlink Group. heritage and a loyal client base. We have a fantastic We currently have an opportunity for a senior or intermediate opportunity for an experienced commercial lawyer with relationship property and civil litigation lawyer to join our busy interests in property. practice. The work will involve contentious and non-contentious Clients include long term investors, developers and relationship property, estate litigation, trust litigation and corporates with work covering a broad range of areas general civil litigation matters. including leasing, subdivisions, sales and due diligence. We offer: The successful candidate would have a strong commercial/ • A great firm environment with a positive team and social property background, with the ability to work confidently culture with a range of clients, both autonomously and also as a • Modern offices – all working on a digital platform team player. • A wide variety of challenging work • A competitive and attractive salary and employment This is an excellent role for someone who enjoys an interesting range of work with the support of our specialist package litigation, business law, property, trust and estate teams. If you are keen to advance your career, enjoy a great work life Jackson Russell is one of New Zealand’s oldest and most balance and be part of a great firm, please send your application respected law firms. We have a highly engaged team to: of talented professionals and offer a collaborative and supportive environment. Mary Armstrong (Manager) WRMK Lawyers www.jacksonrussell.co.nz 09 470 2420, Whangarei For a confidential discussion or more information about this opportunity, please contact [email protected] Janet Lee Martin at [email protected] or ph 09 300 6921. www.wrmk.co.nz Direct applications are requested. All applications will be treated in confidence. 58 2 December 2016 · LawTalk 902

OPPORTUNITIES IN AUSTRALIA FOR TOP-TIER NEW ZEALAND LAWYERS Adelaide • Brisbane • Melbourne • Perth • Sydney • Canberra All applicants must have Commonwealth qualifications, first-rate private practice experience, and strong academics.

INSURANCE LITIGATION CONSTRUCTION/PROJECTS 2-6 PQE 3-7 PQE We are seeking first-rate lawyers with It is essential that you have experience experience in professional indemnity, public in front-end construction or projects. liability, life insurance, TPD, or income We have in-house and private practice protection insurance. opportunities available.

BANKING & FINANCE CORPORATE MERGERS & 2+ PQE ACQUISITIONS 2-5 PQE Ideally, you will have excellent technical You will need to be able to demonstrate legal and drafting skills, coupled with experience in a broad range of matters relevant experience and a passion for such as takeovers, IPOS, capital raisings, banking and finance law. company restructures, mergers as well as general commercial matters.

If you are interested in any of these areas of law, please get in touch. We have multiple vacancies in each of these areas and our team will do our best to find a cultural fit that is best for both you and our clients.

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