ISSUE 913 · December 2017

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People in the law 26 · The truth, the whole 6 · Long-time Community Law chair truth and nothing but the steps down ▹ BY NICK BUTCHER truth... ▹ BY ANNABEL SANDERS 7 · On the move 28 · GDPR compliance in four steps ▹ BY BIANCA MUELLER 12 · NZLS at a glance 30 · From Russia with Love (and Trust) ▹ BY SALLY MORRIS Courts AND GEORGIA ANGUS 14 · Court and Tribunal hours over the 2017-18 Christmas AML/CFT and New Year period 32 · Practical tips on conducting customer 6821 Update due diligence ▹ BY LLOYD 16 · Dealing with the Commerce KAVANAGH AND TINA XU Commission ▹ BY JOHN LAND 18 · 'Eminem' case throws Practice up some important 34 · Sexual harassment in the issues ▹ BY RICHARD FLETCHER NZ legal workplace ▹ BY A 20 · Lifting our human rights NEW ZEALAND LAWYER game ▹ BY LYNDA HAGEN 37 · The fine art of billing: 21 · Enforcing restraint of What you really need to trade clauses in franchise know ▹ BY EMILY MORROW agreements ▹ BY DEIRDRE 40 · First Impressions - WATSON enhancing your Terms of 23 · New Zealand Relationship Engagement ▹ BY LISETTE SOLIS Property Survey 2017 41 · The disruptors are 8864 coming ▹ BY VALERIE BLAND 43 · Time for a CPD warrant of fitness ▹ BY KEN TRASS

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4 Contents

44 · Letters to the Editor 56 · New Zealand Criminal Cases Review Commission: The Legal Information Mediation Panacea to Miscarriages of 70 · New legal books 45 · Changing the way we Justice ▹ BY BRIDGET IRVINE received ▹ BY GEOFF ADLAM argue ▹ BY PAUL SILLS 57 · Judge Fred McElrea Restorative 71 · New Zealand Women's Law Justice online collection expands Journal ▹ BY ANGHARAD O'FLYNN Tikanga and Ture 65 · Feminist Judgements 46 · The Victoria University of Pro-bono of Aotearoa New Wellington Māori Law Students' 58 · Community mediation Zealand ▹ REVIEWED BY Society and its inspiring services pilot in South CAROLINE HICKMAN initiatives ▹ BY CARWYN JONES ▹ BY CRAIG STEPHEN Classifieds Practising Well 59 · Lawyers Complaints 73 · Legal Jobs 48 · How to truly enjoy your Service 74 · Will notices holiday ▹ BY KATE GEENTY 75 · More Legal Jobs Focus on 77 · NZLS CLE Ltd CPD Calendar The New Lawyer 64 · Focus On New 49 · 'Tis the season of summer Plymouth ▹ BY KATE GEENTY Lifestyle clerks ▹ BY KATIE COWAN 78 · Buy carefully on London Food Technology Tours ▹ BY JOHN BISHOP Pathways in the law 67 · What to do if you're 82 · Reflections from Peter 50 · Cooper Legal ▹ BY NICK BUTCHER hacked ▹ BY DAMIAN FUNNELL Garrett ▹ BY NICK BUTCHER 68 · Wagbot uses chatbot 85 · A New Zealand Legal Crossword Access to Justice technology ▹ BY ANGHARAD 54 · Spotlight on legal aid O'FLYNN 86 · Tail-end 69 · MyAdvice.Legal ▹ NICK BUTCHER

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5 PEOPLE IN THE LAW · PROFILE

PEOPLE IN THE LAW PROFILE

Volunteer to chair Cameron Madgwick’s involvement began with Community Law as a volunteer lawyer at the Wellington & Hutt Valley Community Law Centre. He became its Chair in 2008. Why he volunteered has a certain innocent quality to it. “Funnily, to begin with I followed a girl into Community Law and that was the initial motivation but once inside the tent so to speak, I found the connection to Community Law was stronger than the connection to the girl,” he says. About a thousand people from various backgrounds are volunteers at Community Law centres, not just lawyers. It’s no secret that a major challenge for Community Law Centres has always been a financial one. In 2010 Mr Madgwick took a practical approach to getting the best possible deal for Community Law Centres’ funding with the Ministry of Justice. It was a collective renegotiation, meaning all 26 centres were on the same page looking for the same outcome. “Being able to go into the meeting as a group gave us Long-time the negotiating power we needed to get us on a more sustainable footing,” he says. This led to the development of a governance structure Community Law for a national association. The year following the suc- cessful funding negotiations, Cameron Madgwick was elected Chair of Community Law Centres o Aotearoa. chair steps down “Together you can achieve a lot more than individually and that was proven through those negotiations,” he says.

BY NICK The future BUTCHER Mr Madgwick says Community Law Centres have a critical place in the wider legal system. everything they can to ensure that “There will always be people who cannot access the A lawyer credited with playing those people who have the least more traditional legal services through private practice a leading role in solving a fund- ability to access justice can do so. It lawyers. There’s a high demand for their work and build- ing crisis for Community Law o makes it hard to leave when there’s ing up centres with the right resources to be able to do Aotearoa (CLCA) is stepping down a purpose and goal like that. I didn’t that work is the key going forward,” he says. as its co-chair. think at the start it would be 20-odd A report released in October entitled ‘The value Cameron Madgwick is ending his years later, but when you see the of investing in Community Law Centres: An economic work with Community Law Centres o huge difference it makes in peoples’ investigation, found the Community Law network was Aotearoa after over 20 years involve- lives it motivates you to keep doing delivering up to $50 million of free legal services each ment with the organisation. He’ll also more,” he says. year to New Zealanders for an annual investment of cease being co-chair of Community He says leaving is about creating just $11 million. Law Wellington and Hutt Valley. space for others to step in and play It says Community Law Centres provided over 100,000 Mr Madgwick got involved with leadership roles. hours of advice, assistance or representation to at least Community Law as a university “We’ve achieved a lot and I feel 48,000 clients on more than 53,000 legal issues. student studying for his LLB. it’s time for new ideas to come to Cameron Madgwick is currently the chief executive “It’s such a fantastic organisation the fore to progress the movement of Petroleum Exploration and Production New Zealand and group of people who are doing even further.” (PEPANZ).

6 ON THE MOVE · PEOPLE IN THE LAW

PEOPLE IN THE LAW ON THE MOVE

Honorary LLD for Logie worked for Women’s Refuge, the New earthquake recovery matters and district Governor-General Zealand University Students’ Association plan changes. and other social agencies before becoming David Pedley is stepping down from The Governor-General, Rt an MP in 2011. his partnership role with Adderley Head. Hon Dame Patsy Reddy, Green MP Eugenie Sage is Minister David will remain as Special Counsel for will receive an honorary for Land Information. Ms Sage has a law the firm on a part-time basis. degree of Doctor of Laws degree and worked for Forest and Bird at Victoria University and as an environmental advocate before Veronica Cress joins of Wellington’s gradu- entering Parliament in 2011. Chen Palmer Partners ation ceremony on 13 New Zealand First MP Tracey Martin December 2017. Victoria is Minister of Internal Affairs. Ms Martin Veronica Cress has joined Chen Palmer University Chancellor Sir Neville Jordan left the paid workforce in 1995 to be a full- Partners as special counsel. She has 20 says the honorary degree is an acknowl- time at-home caregiver before entering years’ litigation experience in New Zealand edgement of Dame Patsy’s leadership as Parliament in 2011. and the Asia-Pacific region. Before joining Governor-General as well as her previous the bar she was a partner for five years at career in law and business. Changes at Young Hunter DLA Piper New Zealand and was a member Dame Patsy graduated with a Bachelor of the firm’s insurance litigation team for of Laws from Victoria University in 1976 Christchurch firm Young 10 years. and was subsequently awarded a Master Hunter has promoted of Laws (First Class Honours) in 1979. She Karen Welsford to DG Law Ltd appoints lectured at Victoria’s Law Faculty before special counsel. Karen new director joining the Watts and Patterson joined the firm in 2004 (now MinterEllisonRuddWatts) in 1982. and, after spending time Auckland firm DG Law She enjoyed a rapid rise through the firm’s with another firm and Ltd has appointed Kelly ranks, becoming the first female partner in travelling, she returned McCullough as a direc- 1983, before joining Brierley Investments as a senior associate in 2014. She special- tor. Kelly was admitted as Group Legal Counsel in 1987. With her ises in civil and commercial litigation and as a barrister and solici- extensive background in law and business, dispute resolution with a particular focus tor in February 2005 and Dame Patsy subsequently became highly on insurance-related disputes. joined the practice in sought after for governance and consulting Steph Gifford September 2017. She has roles in the public and private sectors. has joined the firm’s extensive experience in property, business commercial team as and commercial law, estate planning and New Ministers in an associate. Steph administration, relationship property and justice-related fields practises in all areas trusts. of conveyancing, com- Andrew Little has been appointed Minister mercial, company and Karen Stevens to of Justice and Minister for Courts in the business related work, chair INFO Network Labour-led government. Mr Little, a Labour with a focus on relationship property, asset MP and former employment lawyer for planning and elder law. New Zealand’s Insurance the EPMU before his entry to Parliament and in November 2011, has taken over from New Adderley Ombudsman, Karen National’s Amy Adams. Head partner Stevens, has been Labour MP William Sio is Associate elected Chair of the Minister for Justice and Associate Minister Resource management International Network for Courts. Mr Sio was a Manukau city specialist Juliette Derry of Financial Services councillor and Deputy Mayor before enter- has joined the partner- Ombudsman Schemes ing Parliament in March 2008. ship at Adderley Head (INFO Network). Karen will take over the Labour’s David Parker is Attorney- in Christchurch. Juliette role in December 2017 for two years. The General, replacing Christopher Finlayson graduated from the INFO Network is the worldwide associ- QC. Mr Parker was a partner at law firm University of Canterbury ation for financial services ombudsmen– Anderson Lloyd before his election to and has worked in independent and impartial out-of-court Parliament in 2002. London and , advising on property, bodies that resolve complaints brought Green MP Jan Logie is Parliamentary infrastructure and environmental projects. by consumers (and, in some cases, small Under-Secretary to the Minister of Justice Since her return to Christchurch her work businesses) against banks, insurers and/or (Domestic and Sexual Violence Issues). Ms has included property developments, other financial services providers.

7 PEOPLE IN THE LAW · ON THE MOVE

PEOPLE IN THE LAW LawTalk publishes information free of charge about appointments, ON THE MOVE awards and other changes in New Zealand’s legal profession. Please send your contribution to [email protected] along with a high-resolution JPEG photo. Brevity is key and material received may be edited – three to four sentences without superlatives is the ideal format. Royal Society honour for Mark Henaghan Law Association (RMLA). Admitted in Property Council New Zealand’s Auckland January 2002, he specialises in resource branch. The Women in Property Award University of Otago management, environment and planning celebrates women in Auckland’s property law Professor Mark law, and Māori legal matters. Mary Hill, industry who achieve outstanding perfor- Henaghan has been a partner of Cooney Lees Morgan has mance, and demonstrate excellent skills elected as a Fellow of the been appointed RMLA Secretary, and and commitment to leadership. Royal Society Te Apārangi. MinterEllisonRuddWatts partner Rachel The citation says he is Devin has been appointed Treasurer. Ros Webby now Dundas New Zealand’s leading Street partner family law scholar, who New solicitors at has had a major impact on the judicial Wynn Williams Ros Webby has been system, legislative reform and legal practice promoted to partner at in New Zealand. Professor Henaghan is one Wynn Williams has Wellington employment of 16 researchers and scholars elected as promoted two staff to law firm Dundas Street Fellows. Being made a Fellow is an honour Solicitor. after joining the firm at that recognises true international distinction Courtney Holmes its inception in 2013 as a in research and scholarship. Fellows can was admitted as a senior associate. She is use the post-nominal “FRSNZ” after their barrister and solicitor a specialist employment name to indicate this honour. in October 2017 and lawyer with over 20 years’ experience, is a member of the having worked in-house for Wellington City Gold Award for Christchurch Dispute Council and then for eight years at EMA Jo Copeland Resolution team. James Central. She moved to Christchurch in 2006 Anson-Holland was as South Island Human Resources Manager Simpson Grierson HR Director Jo Copeland admitted as a barrister with Fairfax New Zealand Ltd and then to was jointly awarded the Gold Award with and solicitor in October a role as senior solicitor in the Palmerston Lion NZ at the YWCA Equal Pay Awards in 2017 and is a member of North office of Business Central. Auckland on 9 November. The awards were the Christchurch Dispute launched in 2014 to recognise best practice Resolution team. Larna Jensen-McCloy among business leaders who are on the appointed to Webb journey towards equal pay. Ms Copeland was Myriam Mitchell joins Farry partnership awarded a special individual commendation Copeland Ashcroft Law for her work in moving the firm to a 0% Larna Jensen-McCloy gender pay gap for the last three years. Myriam Mitchell has joined the Hastings has been promoted to office of Copeland Ashcroft Law as a senior partner at Dunedin firm Lawyer new Takeovers associate. She specialises in employment Webb Farry. Larna is a Panel Chief Executive and health and safety law and also has litigator with particular a background in insurance and dispute experience in complex Andrew Hudson has been appointed Chief resolution. Admitted as a barrister and relationship property Executive of the Takeovers Panel, effective solicitor in February 2007, she has moved matters, involving trust from 26 October 2017. Mr Hudson has been to Copeland Ashcroft after practising in and company assets, claims against trusts the Panel’s General Counsel. Before joining Auckland. and estates and general civil litigation. the Panel in 2011 he was a corporate lawyer in Admitted as a barrister and solicitor in May private practice. He takes over from Margaret Janine Stewart wins 2003, she has expertise in relation to the Bearsley, who has taken up a new role after Women in Property Protection of Personal and Property Rights six years as Panel Chief Executive. Award Act and holds various Court-appointed roles. New RMLA officers Janine Stewart, a partner at appointed MinterEllisonRuddWatts has won the reform proposal Auckland Resene Women in Property wins lawyer award Woodward Street Chambers barrister Award at the second annual Auckland James Gardner-Hopkins has become Property People Awards. The awards In-house Treasury lawyer Matt Woolley President of the Resource Management were presented on 27 October 2017 by the was co-winner of a Tax Policy Scholarship

8 ON THE MOVE · PEOPLE IN THE LAW

Charitable Trust competition which invited in commercial, corporate, and lawyer – appearing in the Court of Appeal, tax professionals aged under 35 to submit property law matters and is assisting with Supreme Court and Privy Council. Christo- proposals that outline a significant reform litigation in all those areas. Helen spent five pher is experienced in proceedings before of the tax system. Matt shared $7,000 with years in London and joined K3 Legal upon the Coroners Court, professional discipli- Talia Smart from IRD. His proposal dis- her return to New Zealand in 2013. She also nary tribunals, and has conducted complex cussed a fully integrated tax system that lectures part-time at Unitec in commercial civil litigation. Christopher is a member attributes all company income to share- law and business entities. of New Zealand and American defence holders. Under that approach, businesses Julie Ding has been lawyers associations and has presented would pay tax on behalf of shareholders made an associate. on behalf of the New Zealand Law Society. based on their marginal rates. Fluent in English and Elizabeth Hall special- Mandarin, she joined K3 ises in criminal law. She Rhodes Scholarship Legal in July 2015 as part has appeared in all courts for law graduate of the litigation team within the New Zealand after working primarily jurisdiction including Margot Gibson, 22, from Christchurch is in criminal, family and the Privy Council and one of three New Zealanders to be awarded civil litigation. She has appeared in the the Supreme Court. Rhodes Scholarships for post-gradu- District and High Courts as lead and junior Elizabeth is a contribut- ate study at the University of Oxford. counsel on various civil, commercial and ing author to a leading criminal law text, Margot graduated from the University of family disputes and is also an approved is a faculty member of the Litigation Skills Canterbury this year with a LLB(Hons) and criminal legal aid provider. programme and a committee member for BA in political science and history. She is Joy Yan has been NZLS Wellington branch and the Criminal currently undertaking an internship with made an associate. Bar Association. Elizabeth has been the sole New Zealand’s Permanent Mission to the Joy was admitted as a prosecutor for Wellington for the SPCA United Nations in Vienna. At Oxford she barrister and solicitor since 2010 on a pro-bono basis. will study a MPhil in international rela- in August 2012 and has Jo Hughson spe- tions, focusing on recent laws allowing worked at K3 Legal since cialises in professional states to revoke a person’s citizenship if early 2015. Her areas regulation, complaints they are suspected of travelling overseas of expertise include and discipline, health to become a foreign fighter, and have dual employment, immigration, commercial law and civil/administra- citizenship. business and property acquisition. She also tive law litigation. Jo has lectures part-time at Unitec on employ- many years’ experience Hauraki Gulf Law ment relations and legislation. in professional discipli- promotes Megan Price nary litigation including as a prosecutor, Pipitea Chambers and as counsel in associated judicial Megan Price has established in Wellington review and appeal proceedings. She has been appointed asso- been the Chair of the Social Workers ciate at Hauraki Gulf Christopher Stevenson and Elizabeth Complaints and Disciplinary Tribunal since Law, Waiheke Island. Hall have established Pipitea Chambers 2015 and chaired Complaints Assessment Megan graduated from in Thorndon Quay, Committees under the University of Southern Wellington. Agents Act Queensland in 2013 and Christopher Ste- 2008 from 2009 to 2011. was admitted to the New venson specialises in Julia Spelman of Zealand Bar in 2016. She specialises in criminal law and appears Ngāti Hikairo descent, litigation, family and property law and is as defence counsel in is an employed barris- an approved supervised provider of legal serious trials. He is ter to Elizabeth Hall. aid services in the areas of civil, family also a senior appellate Graduating with a first and criminal law. Changes at K3 Legal

Auckland firm K3 Legal has made three appointments to its Legal Accounting Bureau · Save time and money Kathy Kell senior ranks. provides comprehensive, · Always know your trust account [email protected] accurate, efficient and timely is balanced and your month end Helen Edwards has certificates are filed on time Ph 09 444 1044 management of solicitors’ trust Fax 09 929 3203 accounts. · Our service is completely secure been appointed a direc- and confidential www.accountingbureau.co.nz tor. She has 14 years Outsource the management of · Trusted professionals with over your firm’s trust account. Either 20 years’ experience of experience in New come to us or we can come to · 62 law firms currently use our Powered by juniorPartner. Zealand and the United you remotely. services Practice Management software you can trust. Kingdom and specialises

9 PEOPLE IN THE LAW · ON THE MOVE

PEOPLE IN THE LAW ON THE MOVE

class honours degree in kaw, Julia was graduating LLB/BA from in 2006, Luana worked most recently at a admitted to the Bar in 2012. After two years Otago University in 2011 top-tier Australian firm where she acted in as a Judge’s clerk, Julia worked on criminal Charlotte was admitted a number of high-profile disputes. justice issues overseas before returning in 2012. She joined the Bridget Riley has to New Zealand to work as a defence in-house legal team joined the Auckland lawyer. Julia is the Chair of JustSpeak, a at Fonterra after four office in a newly cre- youth-based criminal justice advocacy years at Russell McVeagh ated position as Special organisation. with experience in the Advisor (Tax). She has Peter Ross has Corporate Advisory and the Environmental, over 20 years’ experi- practised law in the Planning and Natural Resources team. ence in two of the ‘Big Wellington region since 4’ accounting firms and being admitted to the Appointments at works with businesses on tax planning. bar in 2011, and regularly Anthony Harper She has a particular focus on international appears in all courts. He tax assisting both in-bound businesses and specialises in criminal Anthony Harper has announced a number New Zealand owned businesses expanding law, and has a success- of new appointments. off-shore. ful trial and appellate practice. Peter also Annelies McClure Matt Smith joins the has experience in Family Court and civil has joined as Special firm’s corporate advisory litigation. Counsel, based in team as a senior associ- Wellington. Her exper- ate. Based in Auckland, Charlotte Sygrove tise is in the interpreta- Matt will focus on advis- appointed to new role tion and application of ing technology, fintech the Overseas Investment and emerging ‘start-up’ Charlotte Sygrove has been appointed Act 2005 and she has companies. Matt was Technical Assistant – Governance at significant public sector knowledge and admitted in 2007 and has worked at one Fonterra Co-operative Group Ltd. She will experience. Annelies was admitted in 1990 of New Zealand’s largest firms and inter- provide governance and strategy support and worked in private practice before nationally in London. to senior executives within Fonterra. After joining the public sector. Natasha Razak has Kate Morrison joins joined the corporate Anthony Harper’s advisory practice in public law team in Christchurch as an asso- Auckland as a senior ciate. She has worked associate. She has a internationally in top- background in public tier law firms and has and regulatory law and experience in a broad commercial litigation. range of banking law, with a commercial Before joining Anthony Harper, Kate focus, including cross-border leveraged was at a boutique litigation firm. Kate buy-outs, acquisition finance and restruc- was admitted in 2008 and began her legal turing transactions. career as a Judge’s clerk at the Auckland High Court. NZ winners at Asia Luana Nickles Women in Business recently returned from Law awards Australia to join the employment team in Two New Zealand firms were winners Auckland as a senior at the seventh annual Euromoney Legal associate. She has Media Group Women in Business Law experience in all areas Awards on 9 November. Russell McVeagh of employment law won the firm award for best gender including acting in industrial relations diversity initiative by a national firm. disputes and advising on discrimination MinterElllisonRuddWatts won the country and health and safety matters. Admitted award for New Zealand.

10 We are thrilled to announce the arrival of John Farrow as a partner at Anderson Lloyd leading our employment team.

With extensive experience across New Zealand, and particularly the South Island we are thrilled to have John join our Dunedin team.

This reinforces our commitment to grow in support of our clients nationally and also our commitment to maintaining a thriving Dunedin practice.

SUBJECT MATTER EXPERTS The College is recruiting Tasks include: subject matter experts to • Reviewing and localising review and draft content for existing content for the NZ its award programmes in the jurisdiction following practice areas: • Drafting new module notes Asking for help is • Commercial and learning activities • Property • Providing guidance on a sign of strength • Corporate suitable resources to assist • In-house with the achievement of • Family specific learning outcomes • Wills Estates & Trusts lawsociety.org.nz/practising-well EMAIL YOUR CV TO MARCUS MARTIN AT [email protected]

www.collaw.ac.nz NZLS AT A GLANCE

NZLS AT A GLANCE From the Law Society

There is one area, however, has chosen to call herself A New Zealand which has received relatively little Lawyer. Her contribution was sent to the attention in the specific context Editor of LawTalk with a covering letter of New Zealand’s legal profession. which asked that we publish it to help It has become a constant focus in draw attention to the issues that women the wider world in the last few face in the law. It also requested anonymity years and particularly in recent and we have no hesitation in providing months with the revelations that in this instance. about Harvey Weinstein and Also in this edition is a practical guide other entertainment industry for summer clerking by Katie Cowan. The men. That is, of course, the har- tips are designed for summer clerks but assment of one person by another could equally apply to anyone starting out who feels they are protected by in law. It refers to the pressures for the the fact that they are in a position clerks and urges them to reach out for help of power or influence over the and support. As one who has been in the other. clerks’ shoes she urges us not to put up We are committed to support- with things alone. There are EAP schemes ing the removal of barriers to in many firms which offer assistance and opportunity which currently exist in particular she notes the presence of by virtue of a person’s gender, the NZLS Friends’ Panel as an effective ethnicity or sexual orientation. resource for guidance and assistance. She This will only succeed if we all has found the people on the panel “discreet, also affirm and accept the right compassionate, wonderful”. Access to the of everyone in our workplaces to panel is via the Law Society’s Practising be free from sexual harassment. Well resources on its website. ia ora koutou, In an hierarchical environment At the end of last year I encouraged New Zealand’s lawyers can be where workplace wellbeing, remuneration, people to be kind to each other, especially Kfound in over 4,400 workplaces promotion and advancement are depend- in this busy, often frantic, time leading up around the country. Some have many law- ent on the decisions and input of those in a to the end of the year. At the risk of being yers; others have a single lawyer. Some of position of power, it is an affront to human repetitive I say it again: be kind – it costs the workplaces are dedicated to providing rights if that is abused. As a profession we little but can have a bit impact. legal services while others are non-legal act for others who have experienced sexual Tau Hou hari! businesses, organisations or government harassment. But as a profession we must Best wishes for the New Year departments. All have the purpose of bring- also look at ourselves and agree that any ing together people of all ages, ethnicities, harassment in our workplaces is absolutely Kathryn Beck genders and viewpoints into a shared space unacceptable. President, New Zealand Law Society for a (usually) common purpose. This issue of LawTalk contains an arti- There have been many encouraging cle which gives the experiences of a New developments this year around diversity Zealand lawyer and the harassment she and respect for others in New Zealand’s underwent. There was no physical violence legal workplaces. New Zealand law firms or assault. However, she describes the seri- Publication of LawTalk and legal teams have received national ous impact it had on her and how hard it and LawPoints and international awards and committed was to know how to deal with it. It is a The next issue of LawTalk will be to a wide range of measures with the powerful piece of writing and it should the February 2018 issue, published ultimate objective of ensuring the erosion be read by all lawyers. on 31 January 2018. The final 2017 and removal of social and other barriers In publishing the article we have issues of the weekly e-newslet- hindering the opportunities for everyone departed from the usual practice of ters LawPoints and NZLS Weekly involved in delivering legal services. We insisting that the author of all contributed will be sent on the evening of 14 still have a way to go, but it is immensely articles is clearly identified. The writer December. The first issues in 2018 heartening to see how our profession is of the article we have entitled “Sexual will be sent on 25 January. embracing this mood for change. harassment in the NZ legal workplace”

12 NZLS AT A GLANCE

New Zealand Law Relationship Society reports property report highlights industry The New Zealand Law Society is required to present an annual report to the Minister of Justice on the exercise of its and social issues regulatory activities. The report for the year to 30 June 2017 has been prepared and sent to the Minister. It will be made available on the Law Society’s website as soon as it has been tabled in the The New Zealand Relationship Property Survey 2017 House of Representatives, with the link also carried in the next provides many interesting insights into current legal and practice available issue of the weekly newsletters LawPoints and NZLS issues of concern to family lawyers, NZLS Family Law Section Weekly. chair Kirsty Swadling said in a joint statement on release of The New Zealand Law Society has also prepared a report to the survey. The survey was produced by Grant Thornton New members on its membership and representative activities. The Zealand and the Family Law Section (see page 23 for some of report covers 2017 and is available on the Law Society website this the key findings). Ms Swadling noted that the survey coincided month. All lawyers who have elected to be members of the New with the launch of the Law Commission review of relationship Zealand Law Society will be sent an email with a link to the report. property law. She said around 60% of responding practitioners sought greater certainty around the interface between relation- ship property law and trust law. “This finding is timely given the Immigration NZ review of relationship property law together with current trust Complaints policy law reforms under consideration.” feedback Chief Justice asks Law Society for reminder NZLS has told Immigration New Zealand that it supports the objectives of its new Complaints and Feedback Policy and on junior counsel Process. This was introduced in June 2017 and NZLS provided com- ments for a post-implementation review. It noted that a six-month cut-off for complaints seems unnecessarily strict, and suggested Chief Justice Sian Elias wrote to the NZLS President to some changes could be made to ensure the Complaints Feedback ask for practitioners to be reminded of their responsibilities to Team in its triage function takes responsibility for promptly ensure that junior counsel hold current practising certificates or explaining to complainants that their complaint is out of scope else to seek appropriate dispensation. She said the Court of Appeal but that they might have appeal or reconsideration options. became aware recently that junior counsel appearing in a case did not hold a practising certificate. Dame Sian said unless dispensa- tion has been given by the court, it is not appropriate for senior AML/CFT annual report counsel to appear with someone who does not hold a practising certificate. NZLS drew this to the attention of practitioners through form redraft needed information posted in the weekly LawPoints and NZLS Weekly e-newsletters and an item on the NZLS website.

The annual report form in the first batch of proposed AML/CFT regulations needs to be redrafted, NZLS has told the Law Society Ministry of Justice. It says the form – which will need to be completed by the majority of New Zealand’s lawyers – is poorly Canterbury Library constructed with unclear terminology, repetitious and takes a “one size fits all” approach. NZLS says the proposed annual report also includes questions and information not relevant to legal practice The New Zealand Law Society Library, Canterbury has and which lawyers are likely to find very difficult to understand moved from the Law Courts Building in Durham Street, and respond to. It has offered to work with ministry officials to Christchurch, to the new Justice and Emergency Services Precinct. draft an annual report which is designed for lawyers. The library opened for business at its new location on 1 December.

13 COURTS

Court and Tribunal hours over the 2017-18 Christmas and New Year period

Urgent Family Court 9am, Wednesday 3 January: applications Auckland, Christchurch, Dunedin, Urgent Harmful Digital Family Courts will provide a national Gisborne, Hamilton, Hastings, Communications service for urgent applications over the Hutt Valley, Invercargill, Kaikohe, Act applications Christmas and New Year holiday period. Levin, Manukau, Masterton, Napier, Judges will be available to deal with any Urgent applications will be dealt with Nelson, New Plymouth, North urgent applications filed under the Harmful via the National eDuty platform. Court Shore, Palmerston North, Porirua, Digital Communications Act 2015 (HDCA) staff and duty judges have been allo- Queenstown, Rotorua, Tauranga, on 27, 28, and 29 December. cated to deal with applications on the Waitakere, Wellington, Whakatane, following days: Whanganui, Whangarei Electronically Monitored 9am, Thursday 4 January: Bail Applications MON TUE WED THU FRI Blenheim, Greymouth, Timaru The following provides for the timeframes CLOSED CLOSED OPEN OPEN OPEN 9am, Monday 8 January: for filing and processing of Electronically 25 Dec 26 Dec 27 Dec 28 Dec 29 Dec Dannevirke, Hawera, Huntly, Kaitaia, Monitored (EM) Bail applications prior to CLOSED CLOSED OPEN OPEN OPEN 1 Jan 2 Jan 3 Jan 4 Jan 5 Jan Morrinsville, Papakura, Pukekohe, and after the Christmas break. Taumarunui, Taupo, Thames The Department of Corrections EM Bail All urgent Family Court applications are 9am, Monday 15 January: Team have confirmed the dates for the required to be submitted to the registry Alexandra, Ashburton, Gore, Tokoroa, filing and processing of EM Bail applica- by 2pm on the days above in order for Taihape, Wairoa, Westport tions as follows: them to be processed. Any applications The following courts are Hearing Courts. The last date for filing EM Bail appli- received after that time will be considered They will not be open over the Christmas cations to be heard this year will be the following day. and New Year’s period, and will resume Wednesday 6 December 2017 for the adult hearings as rostered in the New Year: jurisdiction, and Wednesday 13 December Senior Courts Chatham Islands, Dargaville, Kaikoura, 2017 for the youth jurisdiction. This makes All courts and tribunals have emergency Marton, Oamaru, Opotiki, Ruatoria, Te Wednesday 20 December 2017 the final day contacts available over the holiday period. Awamutu, Te Kuiti, Waihi, Waipukurau. for all EM Bail hearings to be heard. The Supreme Court only exception to this will be application Closed: 3pm, Friday 22 December Arrest Courts hearings which have been adjourned Open: 9am, Monday 8 January The District Court Rules allow for arrest from a previous hearing date. Adjourned Court of Appeal courts to be held over the Christmas and hearings can be heard up to Thursday 21 Closed: 3pm, Friday 22 December New Year holiday period as required. December 2017. Open: 9am, Wednesday 3 January Arrangements will be made locally by The first date for hearings of any exist- High Court (all locations) individual courts to process arrests over ing EM Bail applications (filed prior to 1 Closed: 5pm, Friday 22 December the holiday period. December 2017) adjourned from 2017 into Open: 9am, Thursday 4 January Any persons arrested over the holiday the New Year will be from Wednesday 3 period will be brought to the court for the January 2018. District Court initial appearance. This includes those The first date for hearing new applica- All District Court locations will close arrested on new charges, on warrant, or tions filed in 2018 can be scheduled to be at 5pm, Friday 22 December, unless for breach of bail. If bail is sought and it is heard from Wednesday 10 January 2018 gazetted hours allow the registry to close not within jurisdiction of the judicial officer for the youth jurisdiction, and Wednesday earlier in the day. District Court locations presiding at the first appearance to deal 17 January 2018 for the adult jurisdiction. that are gazetted to close earlier are: 3pm with, then any remand in custody (unless These applications need to have been filed at Taihape and Taumarunui, and 4pm at there is consent otherwise) must be on the in court and received by the EM Bail Team Ashburton, Dannevirke, Gore, Morrinsville, next non weekend/statutory holiday day, by Wednesday 3 January 2017. and Westport. when the bail application can be dealt with If there are any queries regarding the above District Court locations will reopen in via AVL from the prison (or police station) timeframes, please don’t hesitate to contact January 2018 on various dates, as listed to the nearest or most convenient court the Electronically Monitored Bail Team, on below: where a judge is rostered to sit. 0800EMBAIL or [email protected]

14 POSTGRADUATE AND PROFESSIONAL PROGRAMMES

APPLY NOW FOR 2018 STUDY Learn more and apply at victoria.ac.nz/postgraduate-law To discuss your options, email [email protected]

FL0109_Law Talk_210x297_v3.indd 1 23/11/17 12:04 PM COMMERCIAL LAW · UPDATE

UPDATE COMMERCIAL LAW Dealing with the Commerce Commission Voluntary or involuntary?

BY JOHN LAND

The first decision may impose some constraints on the An important consideration for Commission’s power to make demands for information/ Advantages of lawyers in advising clients sub- documents in a section 98 notice. The second decision formal approach ject to Commerce Commission constrains the Commission’s right to limit who appears In some circumstances, a client may investigations is how to deal with as counsel in relation to a compulsory interview of a prefer to insist on a compulsory requests made by the Commission client. notice so as to avoid breaching for the client to provide information confidentiality obligations owed to on a voluntary basis or to attend Voluntary or compulsory? third parties in relation to informa- a voluntary interview with the It has become increasingly common for the Commerce tion covered by the notice. Where Commission. Commission in investigations to provide very detailed information is provided pursuant to Depending on the particular case notices to provide documents and information, but on a s 98 notice the client is required there can be significant advantages the basis that the recipient is asked to respond on a by law to provide the information. to a client in either complying voluntary basis. This is done instead of a formal (com- Similarly, a client may prefer to with the voluntary request or, pulsory) notice under s 98 of the Commerce Act 1986 insist on a formal s 98 notice so as to alternatively, in asking that the (or s 47G of the Fair Trading Act 1986) to provide such avoid potential privacy issues aris- Commission instead turns its documents/information. ing from disclosure of information request into a formal and compul- Equally, it is also common for the Commission to ask concerning identifiable individuals. sory notice. that a client, or employee of a corporate client, attend Another potential advantage of This article discusses the pros and the Commission’s offices for a detailed interview on insisting on a formal s 98 notice cons of proceeding on either basis. a voluntary basis rather than pursuant to a formal arises particularly in the situation of There are a number of considera- (compulsory) s 98(c) (or s 47G(1)(c)) notice to attend an an interview before the Commission tions. These include a client’s confi- interview. where a client wants to ensure that dentiality and privacy obligations to The Commission’s perception is that there are less answers given by the client will other parties, whether information restrictions as to its ability to use information that attract the protection of s 106(5) of sought by the Commission might has been obtained by it on an informal basis rather the Act. Section 106(5) suggests that also be of interest to an overseas than pursuant to a compulsory notice (Commerce answers given to a “question put by regulator, the extent of a client’s Commission, Competition and Consumer Investigation or before the Commission” cannot concerns about the use of informa- Guidelines, December 2015, para 107). be used in a prosecution or penalty tion in potential penalty proceed- Many companies and individuals choose to cooperate action against the party giving the ings, the desire for flexibility in any with the Commission’s voluntary requests. They real- answers. interview before the Commission ise, of course, that a refusal or failure to comply with a The Commission’s interpretation and the desire of some clients to voluntary request may simply lead the Commission to is that the section does not apply to involve not just Commission staff exercise its compulsory powers. an informal interview. Presumably, but a Commission member in any What then are the implications of this informal the Commission’s view is that an interview. approach by the Commission? If a choice is available, informal notice or interview does To the extent that a compulsory is it better or worse for clients to provide information/ not involve a “question put by notice is given to a client, lawyers documents or attend interviews on an informal and or before the Commission”. That should be aware of two court deci- voluntary basis, or to do so pursuant to a compulsory interpretation may be subject to sions: Perpetual Trust Ltd v Financial notice? challenge – why is a question by Markets Authority (No 3) [2012] NZHC The answer is that it depends. There are potential a duly authorised employee of the 2307 and Loughlin v Director of the advantages and disadvantages to both informal and Commission not a question by the Serious Fraud Office[2017] NZHC 1847. formal approaches from a client’s point of view. Commission?

16 In any event, regardless of Commission with competition regulators whether the Commission’s view is in Australia (entered into in 2013) and correct, the protection of s 106(5) Canada (entered into in 2016). can only be made certain by insist- Accordingly, if a client is concerned ing that an interview be conducted that information provided to the pursuant to a formal s 98 notice. Commission may potentially prejudice A further perceived advantage the client’s position if disclosed in other of insisting that an interview take jurisdictions (particularly Australia and place on a compulsory basis can Canada) that might be a reason to prefer arise from the fact that a formal providing information on a voluntary interview will take place with a basis rather than pursuant to s 98. Commission member present (as In relation to interviews by the well as Commission staff). In a Commission, another potential advan- formal interview, the Commission tage of proceeding on an informal basis member will not normally be the is that a legal adviser attending the inter- principal interviewer but will usu- view with the client has more ability to ally have some questions of their intervene, and even to call a halt to the own and will have a role in ensuring interview at any time. the procedural fairness of the inter- By contrast, under a compulsory view. There may be situations where interview the person being questioned a client perceives that there is an cannot refuse to answer questions. In advantage to having a Commission fact it is an offence to do so, and the Act member actually present at the further provides that the person being interview. questioned has no privilege against The client may feel that the pres- self-incrimination. ence of a Commission member at the Another potential advantage of an interview ensures that Commission interview proceeding on a voluntary rather than com- compulsory notices issued by the members will thereby obtain a pulsory basis is that some interviewees may be less Financial Markets Authority were direct (and more complete) under- nervous in an informal setting. unlawful because they failed to standing of the client’s evidence. By specify a time within which the contrast an informal interview will What if you don’t have a choice? information of documents should only have Commission staff present. Sometimes, of course, a client doesn’t have a choice. be produced or supplied. Instead By necessity this means that the cli- The Commission simply serves as 98 notice and the the notices required the immediate ent’s evidence would only be related matter proceeds on a compulsory basis. supply of the information and docu- to Commission members indirectly It is worth being aware of a couple of court decisions ments. The notices in question were through Commission staff. which may put some limits on the Commission’s exercise given under s 25 of the Financial of its compulsory powers. The first decision may limit Markets Authority Act 2011 which Advantages of the Commission’s ability to make unreasonable demands is very similar to s 98. informal approach for information/documents in a s 98 notice. The second Heath J commented that the One downside with the compul- decision limits the ability of the Commission to seek to nature and extent of the informa- sory provision of information restrict who appears as legal counsel at a compulsory tion and documents required was under s 98 is that it becomes interview. such that no reasonable recipient subject to potential release to could have supplied it “immedi- recognised overseas regulators as Putting limits on information requests ately”. He also noted that implicitly a consequence of the Commerce In practice, the Commerce Commission is usually s 25 “anticipates that the time for (International Co-operation, and willing to engage with recipients of s 98 notices (or compliance is fixed by reference to Fees, Amendment) Act 2012 (See informal document requests) on questions of clarifica- the nature and quantity of infor- further Land, “New Perils in provid- tion of information requests, negotiation of the scope of mation or documents required”. ing information to the Commerce requests where they may be unduly burdensome, and The notice should also provide the Commission”, LawTalk 839, 11 April the negotiation of time limits where the time required recipient with enough information 2014). to comply is not realistic. to make clear what information or The co-operation agreements However, should that not occur, the case of Perpetual documents must be produced or currently in place with recognised Trust Ltd v Financial Markets Authority (No 3) [2012] NZHC supplied. overseas regulators can be found 2307 suggests that judicial review could potentially be The judgment of Heath J suggests on the Commission’s website. available. that there is scope for challenge to a They include agreements by the In the Perpetual Trust case, Heath J held that s 98 notice where the notice is not

17 COMMERCIAL LAW · UPDATE

UPDATE clear or where it imposes an unreasonable time for com- MUSIC LAW pliance having regard to the extent of the information and documents specified in the notice. Restricting the choice of legal counsel at the interview ‘Eminem’ In relation to compulsory interviews of clients, the Commission accepts that a client will be entitled to case throws have counsel present at the interview. It is worth noting, however, the recent decision of Venning J in Loughlin v Director of the Serious Fraud Office up some [2017] NZHC 1847. In this case, Venning J held in relation to a compulsory interview under s 9 of the Serious Fraud Office Act 1990 important that the director did have an implied power to exclude counsel of choice where the director concluded “on reasonable grounds and in good faith that to allow the issues particular representation will or is likely to prejudice the investigation”. That would include a situation where counsel of BY RICHARD choice was unavailable and the investigation would FLETCHER be unreasonably delayed, or the investigation could be compromised because of the lawyer’s personal circumstances (such as where the lawyer might be a As a younger colleague said, it is sometimes sur- possible suspect or witness themselves). prising how much some people know about music. Also However, Venning J also noted a strong presumption surprising can be how judges can absorb tremendous in favour of freedom of choice of legal representation. On amounts of technical evidence, terms of art, and even the facts before him, the judge held that the decision by street language, and turn the whole lot into a readable, the director to exclude a particular barrister from attend- absorbing judgment that covers a wide range of fields, ing an interview was not reasonable. The director was even if the judgment runs to 132 pages. That is the version particularly concerned that the barrister had attended without the confidential appendices. an interview of another person. However, Venning J con- Such was the case with Justice Cull’s decision in Eight sidered that the evidence did not support a conclusion Mile Style LLC v New Zealand National Party [2017] NZHC that to allow the barrister to represent Mr Loughlin at 2603 – known as the Eminem case. The key issue was the interview was likely to prejudice the investigation whether National Party 2014 election campaign music, or the interview process. Venning J accordingly granted using music titled Eminem Esque, infringed Eight Mile judicial review of the director’s decision to exclude the Style copyright in an Eminem hit, Lose Yourself. The court barrister from attending the interview. said copyright was infringed and awarded Eight Mile The decision in theLoughlin case would also seem Style $600,000 damages plus interest. However, it said relevant to compulsory interviews by the Commission National Party actions followed professional, commercial under s 98. and media advice and were not reckless. The question of any third party liability remains open. Conclusion Rather than considering all the detail of Justice Cull’s If the Commission asks a client to provide information analysis, this article looks from a broader, not always on a voluntary basis or to attend an interview on a vol- legal perspective. untary basis it is not a straightforward decision whether This writer has no idea whether Her Honour plays to comply or to instead suggest that the body exercise its or has played a musical instrument or, before the case, compulsory powers. There can be advantages to either could read music. Even if she had these skills, still course of action depending on the factors discussed above. impressive is how the judgment explores musicology, If the Commission does exercise its compulsory the nature of music, particularly popular music, and powers, the Perpetual Trust and Loughlin decisions may the creative process. It also shows Justice Cull knows put some constraints on the Commission’s exercise of something of the difference between a “rift” and a riff, those powers. what a back beat is, and how one guitar lick can differ from another. John Land  [email protected] is a senior Comedian John Oliver has had a great deal of fun competition law specialist and commercial litigator with the case. His account of aspects of the May trial at Bankside Chambers in Auckland. He was formerly has a good few lessons for ageing sometime wannabe a partner of Kensington Swan for 20 years. rockers who appear in court and perhaps try to relive

18 UPDATE · MUSIC LAW

some of their (misspent?) youth. This other purposes. The idea is to create books. This is before you get into more familiar unlawful is not to say that any of those in court something “similar” that does not CD copies, downloads, etc, etc. in this case carried out any of the breach someone’s copyright. In turn, Then there is the issue of what, in musical terms, is an things this writer did in his younger this may avoid some of the complex- original work. Both musicology experts in the Eminem days – before I went into practice. ities – and costs – of reproducing a case described how “new” musical works often draw on Also, it is pretty easy for Oliver – not well-known artist’s original song or a wealth of older material. This writer has spent quite a exactly a youngster himself – to fire part of it in an ad, film or TV show. bit of time, particularly with young musicians, trying to a few shots at middle-aged lawyers The music world is peppered with define what genre their work might fit into or who their caught in the rap – or were they really all sorts of “copies”. Who has seen musical influences were. Sometimes the response was hip-hop – headlights. the Pink Floyd Experience? Not part they did not have any and they were playing New Zealand of a music library but a legitimate music – whatever that is (!). It is comforting to have Important issues “copy”. Also there are legions of experts lay the issues out in a New Zealand judgment, Unlike Oliver, this writer believes “covers” or sound and lookalike even if their views on some things clearly differed. the issues in the case are important, bands, legitimate and otherwise. particularly from music and intellec- “Borrowing” part of the creative picture tual property law perspectives. Also, Unusual rethinks Perhaps also this writer’s age may be a factor. Growing though students may come across Sometimes “copiers” do some unu- up in the time of progressive rock where Emerson, Lake numerous IP cases and music cases, sual rethinks. One of this writer’s and Palmer, Yes and numerous others raided classical seldom do New Zealand students favourites is the Bossa n’ Stones music to an almost ridiculous extreme, one becomes come across New Zealand music , that puts classic Rolling well aware that “borrowing” other people’s work is part cases, much less music law IP cases, Stones to modern bossa nova beats of the musical creative picture. More “mainstream” may even if there are a fair few IP cases with female vocalists replacing Mick be jazz players such as Bill Evans and MJQ debts to going through the courts. Jagger. The same crowd produced classical music and Shostakovich’s crossover in the other As the same younger colleague Bossa n’ with a whole series of other direction with his jazz suite. In recent times, with said, the judgment is high-level law artists. One title I have hesitated such as Impulsive and the Verve Remixed series, older jazz at its best, applying broad principles about going near is Bossa n’ Ramones: has been “remade” with electronica or acid jazz overlays. to particular circumstances, using the punk rockers’ I Wanna Be Sedated And, as the judgment notes, many 60’s rockers recog- expert evidence along the way. Also, to a bossa beat just does not seem nised their debt to black American blues players. One is though not exactly bedside reading, right somehow. The surprise is that tempted to quote the analysis from National Lampoon’s it is readable in a manner that, for Rolling Stones tunes do translate Goodbye Pop but suspects that is better left on the album. example, combines musicology and well. Getting back to the judgment, how the experts drilled law in an accessible way that may On the music publishing side there down and the techniques they used to compare Lose be useful to both disciplines. is real sheet music, “fake books” Yourself and Eminem Esque, for this writer anyway, made For those not familiar with music and “real books” that, apparently, fascinating reading. So did how Justice Cull considered law, the judgment gives insights legitimise what originally were fake this and the process and time the three writers who into music business and law and made up Eight Mile Style spent creating Lose Yourself. how the two interact. People not That included Mr Bass’s in-court demonstration of the in the music, broadcasting and guitar riff and explanation of why it was different. And entertainment businesses may be The idea is to if you thought Lose Yourself sounds like Led Zeppelin’s surprised at music libraries and create something Kashmir or that La Bamba sounds like Twist and Shout, tracks designed to sound “like” “similar” that the judgment gives you further insights. but be “different to” well-known does not breach Judges sometimes get accused of being out of touch songs or tunes. That was part of the someone’s with current thinking. David Pannick’s Judges had a dilemma surrounding Lose Yourself copyright. In good deal to say about this (OUP, Oxford, 1988). The versus Eminem Esque. Eminem turn, this may Eminem judgment is one example of how things may Esque, particularly the title, might, avoid some of have improved since 1988. to some seem an extreme example, the complexities but there is a wealth of “sound alike” – and costs – of Part of Richard Fletcher’s practice involves music law. material around, some authorised, reproducing a He also used to be a radio announcer, has a large some not. The judgment refers to a well-known artist’s vinyl and CD collection which he plays on vintage “Beatle Esque” genre and the range original song or stereo gear, and he occasionally plays the guitar. On of other “sound alike” material, part of it in an ad, several occasions he juniored to the then Helen Cull often used in advertising and for film or TV show. QC.  [email protected]

19 UPDATEHUMAN RIGHTS· FRANCHISING · UPDATE

UPDATE HUMAN RIGHTS Lifting our human rights game

BY LYNDA make submissions,” Ms Wilson says. “Overall we want to make an assessment of current HAGEN “The Human Rights Commission practice and recommend what, if any, reforms would has a role and does what it can; it enhance the consideration of human rights issues by does a good job. But New Zealand the select committees,” Ms Wilson says. New Zealand’s parliamentary needs a more vigorous, dedicated “New Zealand’s history and heritage of pioneering scrutiny of its international human and impartial process. Most people and protecting human rights could be enhanced by rights obligations will be evaluated in accept that we have been pretty investigation of how the legislature can better scrutinise a new Law Foundation-backed study. light on scrutiny.” bills with rights considerations. The research allows us This follows criticism that New Examples of rights removal with- to assess how much select committees inform parlia- Zealand is lagging behind coun- out proper process included a 2013 mentary debate and influence legislative outcomes.” tries such as the United Kingdom, amendment to the Public Health and Canada and Australia in formally Disability Act, which took away the Shadow Reports monitoring compliance with human right of individuals to complain to The Law Foundation recently awarded two new grants rights treaties. the Human Rights Commission, and under its 2017 Shadow Reports awards programme, New Zealand does not have a spe- the removal of voting rights for some which allows NGOs to report in parallel with official cialist parliamentary body for con- prisoners. Another was the “Hobbit” reports on New Zealand’s compliance with human rights sidering human rights issues, and legislation that changed the status obligations under international treaties. proposals for a stand-alone select of employees in the film industry. One award, to the Human Rights Foundation of Aotea- committee to do the job have been The new research by Professors roa, will provide parallel reports to the UN Committee on repeatedly rejected in recent years McGregor and Wilson will study the Economic Social and Cultural Rights and also to co-ordi- by the Standing Orders Committee. effectiveness of select committees in nate the Joint Stakeholders’ report to the UN Human Rights The co-authors of a 2015 Founda- scrutinising human rights over the Council universal periodic review (UPR). In addition, they tion study on New Zealand’s human next two years, looking specifically will lodge a mid-term report commenting on the extent rights promotion and monitoring, at rights protected under the Bill to which the New Zealand Government has implemented Professor Judy McGregor of Auckland of Rights Act and the International recommendations made as part of the UPR in 2013. University of Technology and Profes- Covenants on Civil and Political The second award was made to Ngā Hau e Whā and sor Margaret Wilson of the University Rights and Economic, Social and Associates, a national disability rights group. They will of Waikato, argue that the lack of a Cultural Rights. report in 2018 on New Zealand’s obligations under the dedicated human rights monitoring The authors will consider selected UN Convention on the Rights of Persons with Disabilities process has put New Zealand out of historic examples such as the Health with a focus on the rights of people with experience of step with comparable jurisdictions. and Disability Act and prisoner psychosocial disability. “We have a general compliance voting rights removal mentioned obligation under international above, as well as five key pieces Lynda Hagen  [email protected] is treaties, but in terms of monitoring of new legislation. They will also Executive Director of the New Zealand Law Foundation. specific legislation it’s really totally review models in other countries Further information about the Foundation’s grants and dependent on NGOs coming in to with dedicated monitoring bodies. awards can be found at  www.lawfoundation.org.nz

20 UPDATE · FRANCHISING

UPDATE FRANCHISING Enforcing restraint of trade clauses in franchise agreements

BY DEIRDRE WATSON

Franchising is only attractive to franchisors as a method of business expansion if they can retain and exercise control over the use of their brand, their system and the way in which their products and services are to be delivered. Ensuring franchisees are bound by a restraint of trade clause, post termination, is an impor- tant feature of the control franchisors perceive that they need to retain over ex-franchisees, as they seek to protect their brand, goodwill and system. As is well known, contractual provisions imposing a restraint of trade are, prima facie, void and unenforce- able. However, where the party seeking to enforce the is not growing and therefore has no a nationwide presence. provision establishes that the restriction is reasonable, intention of replacing an exiting In answering the question, what is it may be enforced. franchisee or in systems where the the necessary legitimate interest, the The party attempting to enforce the restraint must franchise is in a dying phase and by Court of Appeal first looked closely at show that there is a protectable (otherwise known as a natural commercial attrition, the the franchise to see what there was proprietary or legitimate) interest justifying the restraint, franchise is slowly receding. to protect. It found that there were a and that the restraint goes no wider than is reasonably number of features which the Skids necessary to protect that interest. See Brown v Brown What is a legitimate franchise system offered, including [1980] 1 NZLR 484 (CA); Richmastery Ltd v Richmastery or protectable interest its name, and all the goodwill asso- (Central) Ltd HC Tauranga CIV-2005-470-951, 24 May 2006. in franchising? ciated with that name. Four cases that have come before the courts in recent Probably the best exposition of The court found that there were years have shown a robust judicial approach to upholding what is meant by a “legitimate low barriers to entry for franchisees restraint of trade clauses in franchising. Each case concerned interest” in franchising is set out but noted the evidence of the fran- a well-established franchise system and a long-standing in the Court of Appeal judgment in chisor that there were various bene- franchisee: Video Ezy International Pty Ltd v Red Bond Ltd Skids Programme Management Ltd v fits offered to franchisees as follows: [2015] NZHC 1636, Skids Programme Management Ltd v McNeill [2012] NZCA 314. “[45] These included: a full-time McNeill [2012] NZCA 314; [2013] 1 NZLR 1, Health Club The Skids (Safe Kids in Daily Super- dedicated franchise support Brands Ltd v Colven Botany Ltd [2013] NZHC 428 and vision) franchise system is a busi- person to assist in training Mike Pero (New Zealand) Ltd v Heath [2015] NZHC 2040. ness methodology of after-school and development; national These cases will have left franchisors feeling confident services in schools. Franchisees marketing for the business about the enforceability of their restraints, but in this run a standardised after-school care including the maintenance article I suggest that uncertainty still lingers about the programme from premises leased of a website; regular confer- enforceability of restraint of trade clauses in the franchis- within a school. It is a successful ences and meetings; an online ing context, particularly in systems where the franchisor system, well established, and with enrolment facility; monthly

21 FRANCHISING · UPDATE

training opportunities for franchisees and their franchisee will gradually come to concluded that the restraint clause staff; discounted rates for insurance; and an realise that with a system that is must only protect the “legitimate accounting package for new franchisees. Skids shrinking or simply not providing it interest of the franchisor” and could had all the OSCAR accreditation information and with an adequate return, it is better not extend beyond that. The court had worked out techniques to obtain accreditation. off on its own. If it is not bound by found that because the franchisor The fact that the former franchisee had paid a sum a restraint, then the solution can did not intend to open a competing for the franchise benefits is not an answer, as the often seem obvious when a capital store in that location, it had failed payment was for the use of the franchise benefits investment that won’t be returned to establish a protectable interest for the duration of the franchise, but not thereafter. has been made: de-badge and have in that territory. The court noted (at “[46] Skids franchisees were provided with a go at making it on your own. [47]) that “by deciding not to operate material including an operation manual, a policy There is some authority overseas in Peterborough, [the franchisor] and procedures manual, onsite manuals, a pricing to support the proposition that effectively acknowledged that it has structure, employment documentation, enrolment a protectable interest cannot be no legitimate or proprietary interest documentation, and programme modules amongst shown in such weaker system cases. to protect within the defined terri- other things. Materials that were provided were BB Australia Pty Ltd v Karioi Pty Ltd torial scope of the covenant.” subject to ongoing revision. Specialised material [2010] NSWCA 347 is one example. was made available to enable franchisees to obtain There, Blockbuster, the franchisor, Conclusion CYFS accreditation. While the base material that entered into two franchise agree- Given the large and ever-growing constituted the inputs to franchise documents was ments with the defendant to operate numbers of franchised businesses widely available, the standard documents could two video outlets in Queensland. in New Zealand (and therefore the not have been created without work and thought.” Prior to becoming a franchisee, the growing number of franchises that The cases where the courts have been prepared to uphold defendant was already operating fail) and the likely continued emer- restraints, like the Skids case, each involved successful two video stores. At the expiry of gence of restraint of trade disputes, well-established systems with strong brands, systems the term of the franchise agreement, it is more important than ever that and a strong network of franchisees. the defendant simply rebranded and the existence of “legitimate interest” But not all franchises are like that and so the question continued to operate its video stores should never be assumed in fran- arises, what about the weaker franchise systems? By as before. The court found: chise cases, but should however be weaker systems I mean those where: • The plaintiff had no legitimate closely examined on a case-by-case • The “business model” and “support systems” have interest in the precise location of basis. not been updated and (objectively speaking) are of the stores, given the leases were The diverse nature, size, pathway no value or assistance. not in its name, to growth and extent of develop- • The system is dying because the consumer fad has • The defendant had built up its ment of the many and varied passed. own goodwill in the stores prior franchise systems in New Zealand • Growth is receding and exiting franchisees are not to becoming a franchisee; necessarily means that a case-by- being replaced. • The plaintiff ’s intellectual prop- case analysis of the “legitimate • The system simply never attracted a good number of erty was adequately protected by interest” underpinning restraints franchisees in the first place. other protections in the franchise should always remain the correct • The system is one where the franchisee had an existing agreement. starting point when considering the business of the type being operated by the franchise There was a similar negative reasonableness of restraints. prior to becoming a franchisee. outcome for the franchisor in a It should by no means ever be This question is all the more pertinent when one remem- Canadian case, MEDIchair LP v taken as a given that just because bers there are over 600 different franchise systems in DME Medequip Inc 2016 ONCA 168. a business is franchised, a franchisor New Zealand, each with their own definition of system, In this case the franchisor operated has an easy path to protect its busi- goodwill and methodology and each with their own a network of operations that sold ness by a restraint. pathway to growth. Not all of them are destined for and leased home medical equip- success. Some will collapse through simply being a ment and the franchisee had had a Deirdre Watson  deirdre.a.​ fad concept. Others will never reach maturity in that franchise located in Peterborough, [email protected] is a barrister they are unable to attract sufficient franchisees. Others Ontario, a relatively small town, for who specialises in franchising will fail because they are simply not a good investment about 20 years. The Ontario Court of disputes. She regularly presents for their franchisees in that franchisees do not make a Appeal refused to enforce a restraint and lectures on franchise issues, reasonable return. clause because it was demonstrated appears and acts regularly as coun- It is these borderline and weaker franchises which that the franchisor did not intend sel in franchising disputes and is are more likely to lead to the question being asked of to open a franchised store within a board member of the Franchise legal advisers about enforceability of restraints. The the restricted territory. The court Association of New Zealand.

22 UPDATE · RELATIONSHIP PROPERTY

UPDATE

Accounting firm Grant Thornton New Zealand and the NZLS Family New Zealand Law Section have released the results of their survey of family lawyers on the trends and issues impacting on their practice of relationship property law and the people they advise. Relationship The online survey, carried out from 22 May to 22 June, is intended to be the first in a two-yearly series which will track developments in relationship property practice. It was completed by 369 lawyers, 66% of Property whom were female, which was the same proportion as FLS membership. A full summary of the results is available on the Family Law Section’s website at www.familylaw.org.nz. The following summary highlights Survey 2017 some of the key findings of the survey.

WHAT PERCENTAGE OF YOUR IN THE LAST TWO YEARS, HAS WHAT IS THE AGE RANGE YOU HAVE OWN CURRENT WORK CONSISTS YOUR VOLUME OF RELATIONSHIP MOST FREQUENTLY ACTED FOR IN OF FAMILY LAW WORK? PROPERTY WORK… RELATIONSHIP PROPERTY MATTERS OVER THE LAST TWO YEARS? Up to 25%: 21% 26 to 50%: 11% Increased: 49% 51 to 75%: 16% 76 to 99%: 27% Stayed the same: 5% Less than 30: 2% 30 to 39: 22% 100%: 25% Decreased: 46% 40 to 49: 60% More than 50: 14%

14% 2% 25% 21% 22%

11% 46% 49%

27% 16% 60% 5%

WHAT IS THE MOST FREQUENT IN THE NEXT TWO YEARS, DO DURATION OF MARRIAGE/ WHAT PERCENTAGE OF YOU ANTICIPATE THE VOLUME OF RELATIONSHIP YOU HAVE EXPERIENCED YOUR FAMILY LAW WORK IS YOUR EXISTING RELATIONSHIP IN RELATIONSHIP PROPERTY MATTERS RELATIONSHIP PROPERTY WORK? PROPERTY WORK WILL… OVER THE LAST TWO YEARS?

Up to 25%, 32% 26 to 50%, 21% Increase: 40% 0 to 9 years: 33% 10 to 19 years: 60% 51 to 75%, 23% 76 to 99%, 18% Stay the same: 4% 20 to 29 years: 5% 100%, 6% Decrease: 56% More than 30 years: 2%

6% 5% 2%

18% 32% 40% 33%

56%

23% 60% 21% 4%

23 RELATIONSHIP PROPERTY · UPDATE

WHAT ARE THE TOP PLEASE SELECT THE TOP THREE AREAS THAT YOU THREE PROBLEMATIC PLEASE SELECT THE THREE MOST CONSIDER IMPORTANT IN ISSUES THAT YOU MOST COMMON REASONS YOU HAVE SEEN FOR MANAGING A RELATIONSHIP COMMONLY ENCOUNTER SEPARATION IN THE LAST TWO YEARS PROPERTY CASE? IN YOUR RELATIONSHIP PROPERTY CASES 78% 67% 66% 66% 61% 58% 57% 52% 47% 33% 33% 32% 30% 28% 25% 24% 23% 22% 18% 18% 17% 12% 11% 8% 7% 6% 1% Other Other Other Stress Mid-life crisis Mid-life Family strains Family Cost to client to Cost Equality of arms of Equality Domestic abuse Quality of advice Quality of Timely resolution Extra marital affair Extra Business problems Sections 2D and 13 Children’s interests Children’s Unrepresented litigants Unrepresented Unreasonable behaviour Unreasonable Financial/money worries Financial/money Alcohol/substance abuse Alcohol/substance Economic disparity issues Economic Growing apart/out of love of apart/out Growing Early analysis of entitlement of Early analysis Managing client expectations Managing Non-disclosure of information of Non-disclosure Systemic delay in Family Court delay in Family Systemic Preservation of the relationship of Preservation Uncertainty around interface between RP and trust law RP between interface around Uncertainty

WHAT IS THE MOST COMMON NET RELATIONSHIP PROPERTY PLEASE SELECT WHICH OF THE FOLLOWING NET RELATIONSHIP POOL BAND YOU HAVE PROPERTY POOL BANDS (INCLUDING RELATED TRUSTS) YOU PROVIDED ADVICE ON? HAVE PROVIDED ADVICE ON IN THE PAST TWO YEARS

$500k: 30% $500k to $1m: 41% $1m to $2.5m: 21% $2.5m to $5m: 5% $500k 76% $5m to $10m: 2% More than $10m: 1%

$500k to $1m 79%

$1m to $2.5m 67% 2% 1% 5%

30% $2.5m to $5m 36% 21%

$5m to $10m 20%

41% More than $10m 14%

24 UPDATE · RELATIONSHIP PROPERTY

WHAT AVERAGE LEVEL OF FEES DO YOU TYPICALLY RENDER FOR LEGAL ADVICE ON A SECTION 21 CONTRACTING OUT AGREEMENT (EXCLUSIVE OF GST AND DISBURSEMENTS)? IN THE LAST TWO YEARS HAVE YOU OBTAINED COSTS AT $0 to $500: 7% $501 to $1,000: 29% HAVE YOU INSTRUCTED A THE CONCLUSION OF A HEARING FORENSIC ACCOUNTANT? IN THE FAMILY COURT? $1,001 to $2,000: 41% $2,001 to $5,000: 17% $5,001 to $10,000: 4% No s 21 work: 2% Yes: 42% No: 58% Often: 11% Rarely: 55% Never: 34%

4% 2% 7% 11%

17% 42% 41% 29% 58%

55% 41%

PLEASE SELECT THREE OF THE FOLLOWING REFORMS THAT YOU CONSIDER WOULD BE MOST BENEFICIAL IN ACHIEVING EFFECTIVE RESOLUTION OF RELATIONSHIP PROPERTY MATTERS? (COMPARED TO CURRENT PRACTICE)

Speedier resolution in Family Court 73%

Specialist RP judges/RP tracks in Family Court 67%

Stronger penalties and enforcement for non-disclosure 64%

Formal procedural code for compulsory mediation 30%

Formal procedural code for private mediation 29%

Formal procedural code for use of expert witnesses 11%

Formal procedural code for collaborative law 7%

Formal procedural code for private arbitration 7%

Other 27%

WHICH ONE DO YOU MOST WHICH OF THE FOLLOWING HAVE YOU USED TO COMMONLY USE? BILL RELATIONSHIP PROPERTY CLIENTS

Time and cost without cap: 66% Time and cost and premium: 16% Time and cost without cap 78% Legal aid: 7% Time and cost with cap: 7% Fixed fee: 3% Pro bono: 1% Other: 1%

Time and cost and premium 40%

Legal aid 35% 3% 1% 1% 7% Time and cost with cap 23% 7%

Fixed fee 20% 16%

66% Pro bono 16%

Other 3%

25 FAMILY LAW · UPDATE

UPDATE FAMILY LAW The truth, the whole truth and nothing but the truth…

BY ANNABEL SANDERS

The only significant case preced- CRI-2008-019-7272, 1 October 2010). It goes without saying that perjury is greatly ing Nisbet v R was the Court of Appeal There Judge Tompkins had observed detrimental to the effective administration of justice. decision in Skelton v R [2011] NZCA that “perjury can range, in its cir- Section 108 of the Crimes Act 1961 provides that perjury is 35. The perjury committed in that cumstances, between frightened an assertion made in judicial proceedings that is known case was of a distinctly more serious people who perjure themselves for to be false, and made with the intention to mislead. It is nature, when a mother involved in misguided but perhaps understand- considered a serious crime and can result in a penalty a custody battle with her ex-partner able reasons, through to serious of up to seven years’ imprisonment. gave falsified paternity tests as evi- cases, such as this, involving cal- It is common in family law matters for the parties dence in paternity proceedings. The culated and orchestrated offending.” involved to give very different versions of the same test results excluded the possibility Dismissing an application for leave events – meaning one or both parties are giving a less of her ex-partner being the biolog- to appeal the Court of Appeal deci- than accurate version of the truth. Sometimes this is ical father to their son. The mother sion ([2011] NZSC 70), the Supreme deliberate, sometimes simply a difference in perspective. did not plead guilty until the day Court considered the perjury to be Whether you want to gain new skills for your current It is very rare, however, that a person is actually before the trial, which was nearly very serious considering the poten- position or prepare for a new career direction, our convicted of perjury as a result of Family Court pro- two years after being charged. The tial consequences for the true father. qualifications will help you gain valuable knowledge ceedings. It did occur recently in the Hawke’s Bay case court dismissed an appeal against Until Nisbet v R, the Family and practical skills to future proof your career. of Nisbet v R [2017] NZCA 476. A father was involved in a sentence of two years and eight Court appeared willing to overlook protection order proceedings initiated by his ex-partner months’ imprisonment with no instances of perjury falling under and mother of his child. He swore in an affidavit that possibility of home detention which the former category. This may be • Flexible learning options he had “never driven with [his young daughter] at had been imposed in the Family because, as well as being “misguided • Turn your ideas into world changing research any time unrestrained by a child car seat on the road”. Court (R v Skelton DC Hamilton, but perhaps understandable”, it is • Upskill in cyber law with New Zealands largest Under cross-examination he at first attempted to deny difficult to argue that it is in a child’s selection of papers he had ever driven his child illegally, but later changed interests to have a parent face • Complete your Master of Laws within one year his evidence to admit he did sometimes transport her criminal charges. Maybe it was the • Learn from world leading researchers and academics unrestrained on his lap or with her standing. In the father’s apparent lack of remorse, Napier District Court, he attempted to place the blame and non-compliance that made him Apply now to start postgraduate study in 2018 at on his lawyer, arguing that he did not get to read the susceptible to the unusual charge. the University of Waikato affidavit before signing it and that the false words were It is common in For whatever the reason, the case his lawyer’s and not his own. family law matters may hint at the beginning of a trend Email [email protected] In September, the father was sentenced to 18 months’ for the parties to take perjury in the Family Court or visit waikato.ac.nz/law/postgraduate imprisonment with no possibility of applying for home involved to give more seriously. The Court of Appeal detention. One month later, the Court of Appeal substi- very different explicitly stated that Mr Nisbet’s tuted this “manifestly excessive” sentence for one of 12 versions of the sentence serves a denunciation months and granted leave to apply for home detention. same events – of his conduct, and a deterrent for The court noted that the father’s motivation was not for meaning one him and others from committing the some economic advantage or avoidance of a criminal or both parties same offence. It serves as a reminder sanction, but his desire to secure access to his young are giving a less to us to make it clear to our clients daughter; no significant harm was done to any innocent than accurate the potential consequences of other party; and while the perjury was premeditated, the evi- version of the than complete honesty in their dence was eventually corrected halfway through the truth. Sometimes sworn evidence. hearing. The judges therefore considered the offending this is deliberate, to be at the bottom end of the spectrum of offending of sometimes simply Annabel Sanders is a law clerk this kind, and observed that community-based sentences a difference in at the specialist family law firm have been deemed appropriate in similar cases. perspective. McWilliam Rennie lawyers.

26 Whether you want to gain new skills for your current position or prepare for a new career direction, our qualifications will help you gain valuable knowledge and practical skills to future proof your career.

• Flexible learning options • Turn your ideas into world changing research • Upskill in cyber law with New Zealands largest selection of papers • Complete your Master of Laws within one year • Learn from world leading researchers and academics

Apply now to start postgraduate study in 2018 at the University of Waikato Email [email protected] or visit waikato.ac.nz/law/postgraduate PRIVACY · UPDATE

UPDATE PRIVACY GDPR compliance in four steps

BY BIANCA MUELLER

Privacy and data protection may not matter to many outside of Europe. customers. It is considering expand- But this will change on 25 May 2018 when new EU privacy laws will ing its operations to the European market. To that end, NZ Ltd uses coerce global businesses with links to the continent to comply with web analytic tools to determine how the General Data Protection Rules (GDPR). many people from each European country visit the NZ Ltd website and These businesses must ensure what they are interested in. These new rules will impact on any international that they comply with the GDPR; NZ Ltd would need to comply organisation handling personal data of anyone residing irrespective of their physical loca- with the GDPR because any form in the European Union. tion. The game changer here is that of web profiling or tracking, whether The extraterritorial scope of the GDPR means that even businesses without a physical through cookies or otherwise, will some New Zealand organisations and businesses need presence in the EU may have to fall into the ambit of the GDPR. to review their internal data processing procedures, or comply with the new rules if they: The direct consequence of this is risk hefty fines for non-compliance. • sell goods or services to a person that businesses can no longer go European data protection authorities will have the who lives in the EU; or “forum shopping” for the lowest power to impose fines of up to €20 million or 4% of • monitor the behaviour of a person data protection standards in the EU. annual worldwide turnover (whichever is higher) for who lives in the EU. Uncertainty exists as to how these any breach of the GDPR. The critical factor is the location of privacy standards will be enforced The GDPR can also result in civil liability. Any person the individual (data subject) not in practice against an entity outside who has suffered damage as a result of a breach of the the location of the data processor the EU, especially if they have no GDPR has the right to receive compensation from the or data controller. assets in the EU. data controller or the data processor. However, there is a reputational Example for monitoring element at play as well. Businesses Step 1: Who needs to comply? behaviour of EU residents that want to succeed in the European The GDPR is fitted with a broad territorial scope – mean- NZ Ltd (without an EU subsidiary market must therefore ensure that ing it is affecting businesses outside the EU. or branch) is selling apparel online they comply with the GDPR. to Australian and New Zealand The bigger sting may result from EU-based entities Any processing of personal data in the context of a branch or subsidiary in the EU must comply with the GDPR. That is the case even if the actual processing itself takes place outside the European Union. Why are privacy standards high in Europe? Providers of outsourced services such as IT or admin In Europe, the protection of persons in relation to the pro- services or cloud storage will be caught by this provision. cessing of personal data is a fundamental right. Article 8(1) of the Charter of Fundamental Rights of the Example European Union (the ‘Charter’) and Article 16(1) of the Treaty Kiwi Ltd is offering an international money transfer on the Functioning of the European Union (TFEU) provide that service to customers worldwide. All customer data is everyone has the right to the protection of personal data processed and stored on a cloud storage facility hosted concerning him or her. in the United States. Kiwi Ltd offers the service to its The European understanding of privacy is deeply rooted in European customers through a German subsidiary. human dignity and autonomy. It implies that each person can control and draw the line between their public and private Non-EU based entities processing sphere. data of individuals within the EU The basic idea is that people should be able to control All businesses with customers in the European Union personal data about them also called “informational self-deter- or businesses that merely monitor the behaviours of mination”. This means that individuals have a right to determine individuals who live in the EU must abide by the new when, how, and for what purpose personal information about EU data protection standards. them is being held and used.

28 potential civil liability which would many sources: A person may have be (unlike fines) enforceable in New provided it voluntarily for “free” ser- Zealand as a money judgment. vices such as search engine services or social networks. Personal data Step 2: What personal may also be captured automatically data is being collected through cookies, web analytics, and and processed? sensors. Personal data is broadly defined The GDPR approaches consent in the GDPR. Personal data is any more restrictively. Consent must be information relating to a person who “freely given, specific, informed and can be identified either directly or unambiguous”. Silence, pre-ticked indirectly. Personal data may relate boxes or inactivity is not a form of to a person’s private, professional, or valid consent. public life. It can be anything from Consent must be specific to dis- a name, a photo, an email address, tinct purposes for handling personal employment details, interactions on data. Consent should cover all social media, medical records, or an intended processing activities. IP address. Even a dynamic IP address Particular conditions are imposed can be personal data (C‑582/14 2016 in the case of children online and Breyer v Federal Republic of Germany). for sensitive personal information. Personal data includes for instance: • Personal details such as the Step 4: Why is personal person’s name, address, email; data processed? • Financial details such as how Businesses need to be clear about much the person earns, credit the legal ground or grounds for ratings; which they process personal data. intra-group privilege. Instead each group subsidiary will • Medical details about a person’s The GDPR prohibits the process- be accountable for its own data protection standards. mental or physical health; ing of personal data unless there This also means that intra group data transfers must • Details about a person’s ethnic- are legal grounds to do so. In other be justified by law. ity, political opinions, religious words just because a business can beliefs, or sexual life; process personal data does not mean Example • Images or voice recordings of a it is also legally entitled to do so. Kiwi Holding Ltd is employing Swedish staff through its person; • Legal grounds for processing of Swedish subsidiary. However, the actual payments of • Employment details; personal data include: salaries to the Swedish staff comes from Kiwi Holding. • IP address of a person that • To perform a contract; There is – by default – no right for the Swedish sub- visits a website; • The individual concerned has sidiary to transfer employee data to Kiwi Holding Ltd. • Criminal records or alleged given consent; Express consent is required from each Swedish employee offence; • The data controller has a for the intra-group data transfer to be legal. • Biometric data; or legitimate interest; • Location data. • Statutory obligation to collect Conclusion A person may be indirectly identifia- and retain information (eg, The GDPR has introduced extended liability and ble if identification is made possible employers); increased penalties. With this in mind, companies through combining different pieces • To perform the lawful function should be particularly careful when handling personal of information that by themselves of a public authority; or data of Europeans. alone would not reveal the identity • For the protection of vital Businesses need to review their internal data policies of the person. interests of that person. and procedures that address privacy and data protec- The GDPR does not apply to per- Personal data must be handled for tion, including their IT policy, HR policy, outsourcing sonal data that has been anonymised specified and explicit purposes. procedures, and any policy affecting data subjects in so that an individual can no longer During the life cycle of data, the the European Union. be identified from the information personal data cannot be further GDPR compliance is not a one-off task. It is an ongoing itself. However, pseudonymised data processed in ways that are incom- process. Relevant policies should therefore continuously that is retracable may be considered patible with the initial purposes for be monitored, reviewed, and most importantly com- as personal data on individuals which the data was collected. municated to staff. which are indirectly identifiable. For instance, personal data that has been collected to perform a Bianca Mueller  [email protected] Step 3: How is personal sale of goods contract cannot later practises as a New Zealand barrister and a German data collected? be used for marketing, unless the lawyer. She is the founder of the technology law Businesses need to have a close person has specifically agreed to firm LawDownUnder which focuses on European look at how they collect personal receiving promotional offers. transnational and commercial relationships with New data. Data may be collected from The GDPR does not provide for an Zealand and Australia.

29 TRUSTS · UPDATE

UPDATE TRUSTS From Russia with Love (and Trust) Russian oligarch fails to conceal assets in New Zealand trust structure

BY SALLY MORRIS AND GEORGIA ANGUS

requiring asset disclosure, four • Could veto all major decisions of In the recent decision JSC Mezhdunarodniy further New Zealand trusts were the trustees, including investment, Promyshlenniy Bank v Pugachev [2017] EWHC 2426 (Ch), settled between July and November distribution of income or capital Birss J of the High Court of England and Wales held that 2013. The value of the assets settled and variation of the trust deed. the settlor of five New Zealand foreign trusts retained on the five trusts by Mr Pugachev The court considered two claims in beneficial ownership of the trust assets, leaving those was over US$95 million. relation to the trusts. The first was assets open to a claim by creditors. There have been numerous pro- whether the trust deeds created ceedings around the world relating to a trust divesting Mr Pugachev of Who is Sergei Pugachev? Mezhprom Bank’s collapse, including control of the assets or whether Sergei Pugachev was a Russian oligarch. He founded a without notice worldwide asset the beneficial title to the assets Mezhprom Bank in 1992 and developed it into one of freezing injunction against Mr remained with Mr Pugachev. This Russia’s largest private banks. Mr Pugachev was involved Pugachev in July 2014. This par- was referred to as the “true effect in Russian politics and was elected as a Senator of ticular proceeding was brought by of the trusts claim”. Alternatively, the Russian Federation in 2001. Birss J noted that Mr Mezhprom Bank and its liquidator the court considered whether the Pugachev “initially found favour with the ruling regime in the High Court of England and trusts were shams. and assisted President Putin’s rise to power”. Wales. The basis of their claim was Mr Pugachev was extremely wealthy. In 2008, he that the beneficial interest in the True effect of the was worth around US$15 billion. His assets included assets held by the five New Zealand trusts claim the largest shipyard in Russia, the second largest coking trusts belonged to Mr Pugachev. The Birss J relied on the New Zealand coal mine in the world, the French chain Hediard, claimants sought an order vesting Supreme Court’s decision in Clayton the French national newspaper France Soir, a chateau the trust assets in them. v Clayton [2016] NZSC 29 in rela- in the South of France, three yachts – one of which was tion to the true effect of the trusts worth US$35 million – two private jets and a helicopter. The New Zealand trusts claim. Birss J gave two reasons for Following the 2008 global financial crisis, Mezhprom The New Zealand trusts were all dealing with the Clayton decision at Bank was struggling. The Russian Central Bank supported discretionary. Mr Pugachev, his some length in his judgment. First, Mezhprom Bank but this ultimately failed. The bank’s partner, Alexandra Tolstoy, and his because it is a decision from the licence was revoked and the Russian Court declared the children were among the discretion- Supreme Court of New Zealand. His bank insolvent. When the bank entered into liquidation, ary beneficiaries. The trustee of each Honour stated that such decisions the deficiency in its assets was approximately US$2.2 trust was a New Zealand company. are authoritative but particularly in billion. Around that time, Mr Pugachev was also losing Mr Pugachev was the protector of this case as it involves New Zealand standing with the Russian ruling elite. In early 2011, he each trust. The trust deeds gave the trusts. Second, Birss J considered fled Russia just after criminal investigations were opened protector a wide range of powers and that the decision in Clayton illumi- relating to Mezhprom Bank’s collapse. control. In particular, the protector: nates some important principles A New Zealand trust was settled in December 2011 • Had a right to information from relating to the analysis of trusts. to hold Mr Pugachev’s property in London. By 2012, the the trustees, He noted that the fact the Supreme pressure on Mr Pugachev from Russia was increasing and • Had the power to appoint new Court applied those findings to the there were Russian press reports that London proceed- discretionary beneficiaries, New Zealand relationship property ings were being contemplated to trace Mr Pugachev’s • Had the power to appoint trustees regime does not diminish the rele- assets held outside Russia. After receiving advice on and remove trustees “without vance of that analysis. the risk of an ex parte asset freezing order and an order cause”, and His Honour was of the view that

30 UPDATE · TRUSTS

Honour found that Mr Pugachev has two important characteristics: that he is not a person who would lightly relinquish control of anything and he is a person willing to lie and put forward false statements if it would suit his purpose. Birss J found that Mr Pugachev’s intention in settling the trusts was to retain control of the assets but use the trusts to mislead third parties by hiding his control. His Honour considered that the whole scheme in this case was set up to facilitate a pretence about ownership, or rather its absence, should the need arise. In conclusion, Birss J held that if his interpretation of the true effect of the trust deeds was wrong and Mr Pugachev was not the beneficial owner of the assets, the trust deeds were shams. Warning to solicitors His Honour was also critical in his decision of the solici- tor who acted in relation to the New Zealand trusts. The solicitor was a shareholder and director of the trustee the Clayton decision shows “when ownership of the assets he trans- companies. He drafted the trust deeds and set up the considering what powers a person ferred into the trusts”. On that basis, trusts and trust companies. He looked after all the actually has as a result of the trust his Honour held the trusts were not paperwork concerning the administration of the trusts. deed, the court is entitled to con- shams. However, his Honour went Although the solicitor’s evidence was that he did not strue the powers and duties as a on to consider the sham claim in know what Mr Pugachev’s intentions actually were, Birss whole and work out what is going case the proper construction of the J did not accept that the solicitor did, in fact, infer that on, as a matter of substance”. trust deeds was that the protector’s Mr Pugachev wanted to relinquish control. If he wanted Birss J observed that Mr powers were fiduciary. to find out what Mr Pugachev’s actual intentions were, Pugachev’s position differed to Mr he could have asked, but he did not. His Honour held Clayton’s as Mr Pugachev could not Sham claim that the best that could be said about the solicitor’s directly remove a discretionary ben- The claimants argued the trusts actions were that he prepared and signed the trust deeds eficiary. However, as protector, Mr were shams as it was the intention entirely recklessly as to the settlor’s true intentions. This Pugachev could veto distributions, of the parties that the assets should statement serves as a warning to solicitors to ensure remove a trustee who refused to continue to belong to Mr Pugachev. they understand why a client wants to settle a trust distribute trust assets to him and As a starting point, Birss J noted and not to turn a blind eye to the reality of a client’s appoint a trustee who would. that there is no such thing as a instructions. Based on the true construction “sham trust”. Rather, what may be of the trust deeds in this case, his a sham are the documents or acts Conclusion Honour held that Mr Pugachev’s that purport to set up the trust. In In this case, the court ultimately found that the assets powers as protector were personal, considering whether a document is were held on bare trust for Mr Pugachev. None of the rather than fiduciary. That is, Mr a sham, the focus is on the inten- protector’s wide powers in the deeds were fiduciary. Pugachev was free to exercise tions of the relevant parties. This is They were purely personal powers that Mr Pugachev these powers for his own benefit, a subjective test. As held by Arden could exercise selfishly. The true effect of the deeds was without considering the interests LJ in Hitch v Stone [2001] STC 214: to leave Mr Pugachev in control of the assets. of the discretionary beneficiaries. “The parties must have intended This is another reminder to settlors of the risks of Birss J’s fundamental reason for to create different rights and obli- seeking to retain control over trust assets. The process reaching this conclusion was the gations from those appearing from of establishing a valid trust is more than just a box extensive nature of the protector’s (say) the relevant document, and in ticking exercise. The courts will look to the substance powers combined with the fact that addition they must have intended of a purported trust in order to be satisfied that the Mr Pugachev, as the first protector, to give a false impression of those necessary incidents of a trust are met. Unfortunately was also the settlor of the assets and rights and obligations to third for Mr Pugachev, the “trust” structure did not amount to one of the discretionary beneficiar- parties.” a valid trust and therefore was not effective to remove ies. His Honour noted that if less His Honour held that a critical his assets from the reach of his personal creditors. In extensive powers were conferred question is what Mr Pugachev’s other words, just because it looks, walks and quacks on a beneficiary/protector, then that intentions were when he settled like a trust doesn’t mean it is one. might lead to a different result but the trusts and transferred his assets that was not this case. into them. As Mr Pugachev did not Sally Morris  [email protected] is Accordingly, Birss J found that give evidence, Birss J was required partner and Georgia Angus  georgia.angus@ the terms of the trusts “[did] not to draw inferences on this point. morrislegal.co.nz senior solicitor of boutique Auckland divest Mr Pugachev of the beneficial In considering the evidence, his litigation firm Morris Legal.

31 AML/CFT

AML/CFT Practical tips on conducting customer due diligence

BY LLOYD KAVANAGH AND TINA XU

required by the AML/CFT Act. When lawyers become reporting entities under For existing clients, CDD is only required following a the Anti-Money Laundering and Countering Financing material change in the nature or purpose of the business of Terrorism (AML/CFT) regime from 1 July 2018, a key relationship (relying on section 14(1)(c) of the AML/CFT Act). ongoing obligation will be to conduct “customer due There will be some debate as to what is a change in the diligence” (CDD) on relevant clients. nature or purpose of the business relationship. A good The AML/CFT Act itself sets out when and how to conservative threshold is the next time the existing client conduct CDD, but those rules are not always easy to instructs a lawyer in relation to a “captured activity” or apply in the context of lawyers. This article explores at the bare minimum, when opening a new file to carry three issues lawyers may have when conducting CDD. out a “captured activity”. When do you conduct CDD? Who do you conduct CDD on? Lawyers face two questions: Lawyers must conduct CDD on their clients and, where 1 Should CDD be conducted on all new clients on incep- the client is not an individual, on any “beneficial owners” tion, or only when a new client requests a “captured of the client and any person acting on behalf of the client. activity”? Identifying “beneficial owners” can be difficult, 2 When CDD should be conducted on existing clients? particularly when clients have complex ownership The first question arises because the AML/CFT regime structures. The AML/CFT supervisors published the only applies to a client if a lawyer provides one of the Beneficial Ownership Guideline, which explains in detail activities listed in the definition of “designated non-fi- the “beneficial owners” test. It states that a beneficial nancial business or profession” (for example, when the owner is an individual that satisfies any one of: lawyer handles client funds, undertakes conveyancing • Owns more than 25% of the customer; of land or a business, or provides trust or company for- • Has effective control of the customer; or mation services). There may be clients on whom lawyers • Is the person on whose behalf a transaction is conducted. will never need to conduct CDD. The key is to look for the underlyingnatural persons. For many, the easiest path may be to conduct CDD on It can include directors and shareholders of compa- all clients at the beginning of the business relationship, nies, trustees, settlors and beneficiaries of trusts and regardless of whether or not the client’s first instruction committee members of a club or society. This requires includes a “captured activity”. This avoids having to an understanding of both the ownership and control address the position part way through the relationship. structure of the client. However, for lawyers that do not regularly perform captured activities, conducting CDD on all clients may Example be unnecessarily burdensome. Jane runs ABC Ltd, a plumbing business, and has Even for lawyers who are performing “captured approached you to assist with the acquisition of a activities”, it may be that CDD is not easily conducted competitor’s business. Jane is the sole director of ABC at the start of an instruction. For example, if the client is Ltd and the other shareholder is Jane’s father, Stu. Who one of a number of tenderers in a property transaction should you conduct CDD on? requiring an urgent agreement for sale and purchase The “customer” in this scenario is ABC Ltd. The “bene- review before the tender deadline, conducting CDD at ficial owners” include Jane and Stu as shareholders. Jane the start of the instruction may mean that the client is also the person acting on behalf of the company as cannot receive the service in time. she is the sole director. If ABC Ltd had a senior manager There is no single correct approach, as it depends on who instructs you from time to time, they would also the lawyer’s practice. But lawyers should always ensure be “persons acting on behalf of the customer”. But if the their compliance programme triggers completion of CDD shareholders were Jane and Stu as trustees of the ABC for all clients who undertake a “captured activity”, as Family Trust, CDD becomes more complex – relevant

32 AML/CFT

persons could include the settlor the relationship with the client and required – the fact that the client is and trustees of the ABC Family Trust the type of transactions undertaken. established in a jurisdiction consid- or others with control rights. Finally, enhanced CDD is always ered “high risk” by FATF, the cash-in- required on clients who are trusts tensive nature of the business and What standard of CDD? and other vehicles for holding per- the fact that Jane was hesitant to Lawyers must also decide whether sonal assets, and effectively required provide identity details. Enhanced standard, enhanced or simplified on politically exposed persons. CDD should be conducted. CDD is appropriate on each client. The AML/CFT Act provides for Example Lloyd Kavanagh  lloyd.kavanagh@ when certain clients or situations ABC Ltd is incorporated in Vanuatu minterellison.co.nz and Tina Xu require a particular standard of – Jane explains – for tax reasons.  [email protected] CDD. But lawyers are required to Jane asks to pay part of the purchase are co-authors of the AML/CFT take a “risk based approach” each price in cash to save her a trip to section of Morison’s Company time simplified or standard CDD is the bank. When you request identity and Securities Law. Lloyd is Chair conducted to decide whether the details, Jane is reluctant to produce of MinterEllisonRuddWatts and risks involved for a particular client them as it’s a “hassle”. leads the firm’s financial services calls for enhanced CDD. There are a number of factors team. Tina is a solicitor in the firm’s To assist with this decision, that suggest enhanced CDD may be banking and financial services team. lawyers should apply judgement based on their experience and understanding of the client. Various organisations, including the New Zealand Police Financial Intelligence Trusted practice management Unit, the Financial Action Task Force (FATF) and the Asia Pacific Group on software for NZ lawyers Money Laundering, publish typol- Easy to learn, easy to use. Save time and ogies exploring the behaviour and ! practices of money launderers and increase profits. That’s what users say those financing terrorism, which New: Document management & Internet banking. Free installation and may assist with assessing risk. training. Visit our website for testimonials from firms just like yours. Lawyers should also consider other risk factors, such as the client’s rep- www.jpartner.co.nz [email protected] 09 445 4476 JPartner Systems Ltd utation, the regularity or duration of

33 PRACTICE

Sexual harassment in the NZ legal workplace BY A NEW ZEALAND LAWYER

The author of the following article is anonymous. While LawTalk has a policy of identifying the author of each article, we fully respect her reasons for anonym- ity: “Although I think these are important experiences to speak out about, I am not prepared to endure the attention that putting my name to it would bring. Nor do I wish to humiliate the men involved or invite speculation about who they might be.”

There has been a lot of talk in recent weeks about the harassment that many women have to endure in the course of pursuing their careers – in acting, politics, IT, and the professions. We know, of course, that women also endure sexual harassment in the legal profession here in New Zealand. In this article, I want to outline two comparatively minor but nonetheless very difficult incidents which I experienced as a young lawyer. I am doing this in the belief that the more that people talk about these things – even if as here, anonymously – the better people will understand how sexual harassment happens and what we can do to prevent it. Both incidents of sexual harassment which I expe- rienced followed an eerily similar pattern. In the first case a very senior lawyer (Man 1) asked if I could come in on the weekend to work with him on a file. In the second case a similarly senior man (Man 2) invited me to meet with him to discuss the prospect of working with him on something important. In the first case, I was 22 and in the second I was 24. The men in question were in their sixties. In both

34 PRACTICE

instances, at the very last minute. I received messages some pretty clear encouragement to assume that I was. letting me know that the meetings would be taking place I emerged from both encounters feeling entrapped. I at their houses. These were not requests; I was simply had been lured under false pretences into these men’s being informed about what was happening. I turned homes and into fake romantic encounters I had never up to the meeting with Man 1 to discover that his wife agreed to. I resented the imposition on my time and was away for the weekend – and that he had booked us my emotional equilibrium. a table for lunch at his favourite cafe. In fact, the whole event was essentially a date. It was five hours before I Things didn’t stop there managed to extricate myself during which time we did And unfortunately, things didn’t stop there. From their just 45 minutes of work. perspective these encounters were a great success. I’d Man 2 had no wife to dispense with but, since the stayed for lunch/dinner. I’d engaged in interesting con- meeting was at 5pm, he had poured me a glass of wine versation and generally done what was expected of me. and started making dinner for us I’d got away but only as early as it was polite to do so. both by the time I had arrived. I left Unlike me, they didn’t stop to ask themselves what the in the dark at 10pm, having had it hell a young woman was supposed to do when a man made very clear to me (a) that Man who held her career in the palm of his hand put her in 2 was immensely wealthy, and (b) a position like that. that I would be very welcome to So, of course, they asked me out again. Man 2 wanted become his mistress. In one sense this to discuss work over lunch at a restaurant. I went but In one sense this is no big deal; is no big deal; immediately regretted it so the next time I tried the brush just a couple of optimistic old boys just a couple of off. I said I was busy and didn’t suggest an alternative trying when they shouldn’t. I didn’t optimistic old boys time. “When are you free then?” I delayed answering feel unsafe during either of these trying when they for ten days and then upped the ante: “I am not really ‘dates’ and had previously liked shouldn’t... But I had free at all at the moment. I am very busy at work for the and got on well with both men. never given an iota next couple of months”. “When will you be free again But I had never given an iota of an of an indication that then?” Clearly he was not going to take a hint. Man indication that I was romantically I was romantically 1 was similarly persistent only his declarations were interested in either of them and interested in either more emotional. It turned out he was in love with me, given that each was old enough of them. kept thinking about me, had fallen for me in a way he to be my grandfather you’d have couldn’t explain and which made him feel like a fool. He thought that they’d have needed would come into my office all the time, tried to move me

35 PRACTICE

away from my peers and into his part of the building; I don’t talk about this stuff openly; most told me that he had wanted to kiss me. women who experience these things have learnt it is not in their interests to do so. I didn’t know what to do But when we do try to tell you that we At this point, in both cases, things got a bit out of control. might have had a rougher road to tread I just didn’t know what to do. than our male colleagues, when we talk With Man 2, I had tried the standard polite ‘no’ tech- about sexism, and ask for support from niques. And there was an important decision being made our colleagues and institutions, then about my career that I had every reason to think that please be willing to listen. he was involved in. Was there a risk that he would take things out on me if l rejected him? He was beginning to look rather fond of getting what he wanted. Should I just keep going out to lunch with him until the decision was made? Should I leave town for a bit? Should I invent a boyfriend? Or should I do as my friends advised and just tell him directly to go away? The situation with Man 1 was even more difficult. He was there every day when I went to work. He too had immense power over my future career. People were gossiping about me in the office. (An older woman I went the line. Both cases made me wary them to fulfil some emotional or to for support simply went around telling some of the of trusting men who professed sexual desire of yours (whether secretaries about it.) And I believed Man 1 when he said to admire my work in the future. overtly or not) – then don’t do it that he had fallen for me. What would a heartbroken And this made me feel vain and again. Recognise the power that older suitor do if his young love interest overtly rejected inadequate in equal measure; vain comes with even a little bit of sen- him? I had no idea. What’s more, I was young and nice because I felt I was flattering myself iority and make sure that you don’t and didn’t want to crush him. into thinking that men at work abuse it – wittingly or unwittingly. In the end, in both cases, I took my friends’ advice and kept fancying me and inadequate Do not use work pretences to get pressed the nuclear button. Both men received letters because I didn’t get the usual sense people into your lair or to get into telling them politely but firmly that I did not wish to of affirmation if a man did express theirs. This is not harmless behav- go out with them. Man 1 was contrite and apologetic an interest in my work. And both iour even if all you do while they’re but resumed the same behaviour a few months later. It cases made me doubt my ability to there is dream or delude yourself. If ended when I changed jobs. Man 2 got peeved. In fact, handle myself in the world. It took the young lawyer in the office really despite having previously been a mentor and supporter me years to realise that what went does want you for their sugar daddy of my work, he refused to talk to me for two years. He on here was sexual harassment. I you will have to wait until he or she sent a message via a colleague that I had overreacted, even went to a counsellor to learn propositions you – directly. that I had misread the situation, that there are ways of what I was doing to attract this kind My second hope is that men communicating these things politely (like saying you’re of attention. It didn’t work. It only reading this will get a bit more busy for the next two months perhaps... ?). He finally stopped when I got a boyfriend who of a sense of the kind of difficul- thawed when I – weakly, I know – sent a message via the was well-known amongst the legal ties female lawyers sometimes same friend saying that I accepted that I had been a bit community. It seems it isn’t form encounter in the workplace. I heavy handed. But in neither case was the mentoring, to hit on another male lawyer’s don’t talk about this stuff openly; supportive work relationship restored. How could it be? girlfriend. And of course there is most women who experience these nothing like age and seniority to things have learnt it is not in their My health and work suffered discourage unwanted romantic interests to do so. But when we I realise that all this is nothing compared to the sexual attention... do try to tell you that we might harassment and abuse that many women endure in have had a rougher road to tread their professional and personal lives. But part of the What might people than our male colleagues, when point I want to make here is that even these minor take from this? we talk about sexism, and ask for incidents can have a serious effect on women’s work So what is it that I am hoping people support from our colleagues and and personal lives. In both cases, my health and work might take from this? First of all, if institutions, then please be willing suffered as a result of the stress – particularly in the case you are reading this and think that to listen. The landmines hidden on of Man 1 who was always in the office. In both cases, you might have treated a male or our career paths aren’t always easy I lost an important mentor because they overstepped female colleague like this – ie, used for others to see.

36 PRACTICE

PRACTICE The fine art of billing: What you really need to know

BY EMILY MORROW

The Truisms Because law is as much a busi- The following are core concepts in ness as a profession and the terms of optimal billing behaviour. I billable hour is a critical part of have always found these approaches that, handling the time recording/ to be helpful. billing aspect of one’s practice is a • Communicate with your client core capability for lawyers. As one early and often, particularly if of my former partners once said; there are any questions or con- “I’m going off to man my billing cerns about a bill. station this afternoon. If I don’t do • If you start feeling uncomfortable that really well, I’m wasting my own about something in the billing and everyone else’s time”. process, lean in towards it. Do One of the most frequent com- not go into denial. can always cut your time back later on. Do not rely plaints clients make about their • Remember: no matter how wrong on your memory to record time later on. At the end lawyers is that a billing matter was the client is, the client is always of each day add up the amount of time that you have poorly handled. Either the amount right. recorded and if it is less than the amount of time was inappropriate, concerns were • Be sure never to win a battle in you worked, figure out where the slippage occurred inadequately addressed, the bill was terms of a bill, only to risk losing and fill it in. untimely and so forth. As I used to the war in terms of that same • Be detailed in describing what you have done. Clients say to my team members when I bill. In other words, always keep feel better about paying bills that show detail. On the was in practice, “You can’t please things in perspective. other hand, don’t be overly “picky”, because that can all of the clients all of the time, but • It is more important that the irritate a client. if you’re not careful, you can upset client feels positive about the • Routine work done by less senior team members is all of them”. whole experience of working with generally best done on an hourly basis. Always utilise Because billing involves the you and your firm, including the support staff appropriately so fees are reasonable. exercise of professional judgement, billing process, than that your bill • Bill frequently and do not let the account balance get it is more of an art than a science be paid in full. too large. Clients are more comfortable paying smaller and getting it right can be chal- • There is nothing more valuable in bills, rather than large, infrequent ones. lenging. Interestingly, relatively your professional life than your few firms proactively train law- reputation. Do not let a client Some common billing issues yers about when and how to bill, who is disgruntled about a bill and how to address them address client concerns, describe besmirch that. One unhappy work done in sufficient (but not client in your community can do a How to set fees too much) detail, write down a bill lot more damage to your practice This issue arises in connection with billing for work and so on. Here are some thoughts than almost anything else. done on an hourly basis, fixed fee work and work “not about how to improve your “billing • Record your time in real time right to exceed a certain amount”. Here’s what I suggest: hygiene”. after you have done the work. You • When you give an estimate (versus a flat fee), always

37 PRACTICE

TRANSFORM YOUR CAREER estimate high; things always take longer than you right the first time, but at the lowest cost for the client. think. Delegate accordingly. WITH AN LLM FROM • It’s better to give a “not to exceed a certain amount” Consistently make it a top priority to invest time in estimate than a flat fee in my experience. You’re less training your team members to do the work you delegate NEW ZEALAND’S likely to lose money that way. to them. In some cases, you may have to write off your LEADING LAW SCHOOL • Only give a binding quote on matters that you know training time, but in the long run this will be profitable. will take a certain amount of time based on your prior experience. Do the unique and complex matters on How team members (who do not control billing an hourly basis if at all possible. decisions) should communicate with clients • Resist the urge to “low ball” an estimated fee to get a about billing questions, complaints and the like Flexible study options including intensive courses, job. If you do, it will just become a race to the bottom. Consider how you would like a support staff member evening classes and research masters. Take the time to explain the value you will add by to respond to a billing question a client might have. For doing the work and then stick with your hourly rate, example, what kinds of questions are appropriate for a assuming it is in line with market rates in terms of team member to answer and what should be referred • Global Commercial Contract Law estimating what a particular task will cost. to you? Have conversations with your team members • International Arbitration about this before it happens so everyone is prepared. • The Tax Base What to do when you realise you have • Comparative Company Law underestimated the cost of work and Timing and sending out bills • Iwi Governance • Media Law in the Digital World are likely to have a cost overrun Bill often but do not bill until you have completed at • International Taxation • Think before you communicate the problem to your least some of the work you are doing for the client and • Uncensored History of International Law client so you calm yourself down and don’t say some- the client has some work product in hand. • Goods and Services Tax thing you might later regret. If you have written down your own or someone else’s • Selected Topics in Tort Law • Consider whether to communicate the billing concern time, consider indicating you have done so in a cover letter • Tax Administration and Disputes to your client via telephone, email, in person or hard- that accompanies the bill and explain your reasons for • Data Privacy and the Law copy letter. Unless it is a simple matter, I generally doing so. Clients appreciate this and it builds goodwill. • Litigating Human Rights: Law and Practice recommend discussing billing matters either in person in Comparative Perspective Following up on unpaid bills or by telephone so it can be a dialogue. Don’t rush or • The Legal System: Sources, Structure and Method avoid the discussion. Do so within 30 days after the bill has been sent to the • Local Government Law • Let the client know, very explicitly, that your primary client. Communicate first via an email or letter, and if • Selected Topics in Law of Evidence and Criminal Procedure concern is that he/she be entirely satisfied in working that does not get results, make a phone call. If that still • Global Environmental Law with you and your firm, including billing matters. Tell does not work, then raise the issue with the client in • Food Law the client you will do whatever it takes to make sure person the next time you meet with him or her. Don’t • Employment Law: Personal Grievance he/she is happy with the result. Be sure you believe let the matter languish. Either get the bill paid or write • Waitangi Tribunal: Past, Present and Future this is true yourself. You may lose a bit of money on it off within no more than 90 days. • Twenty-first Century Trade Agenda this particular matter, but you will have gained a great Most lawyers work hard and • Corporate Finance deal of goodwill. do good work for their clients. • Corporation and Investor Tax Because billing However, some are more successful • Contemporary Issues in International Law • Australian Tax Addressing client concerns and complaints involves the than others in getting their bills paid • Health Law Do so early, often, directly and transparently. exercise of in a timely manner by reasonably • Law of Insurance Contracts Tell the client it is important to you that the amount professional happy clients. Generally, it takes less • Climate Change Law paid for the work you did is commensurate, in the client’s judgement, it is time to handle a billing matter well • Resource Management Law opinion, with the amount billed for the work. Encourage more of an art than to mishandle one. Mastering • the client to pay only that portion of the bill that he/ than a science the fine art of billing can make all • Competition Law she deems to be per the above. In the vast majority of and getting it the difference. • Artificial Intelligence: Law and Policy cases, clients will go ahead and pay close to 100% of the right can be bill after you say this and they will thereafter happily challenging. Emily Morrow  www.emily​ extol your virtues amongst their friends and colleagues. Interestingly, morrow.com was a lawyer and relatively few senior partner with a large firm Gearing to optimise profitability firms proactively in Vermont. Emily now resides in for the firm, reduce client fees and train lawyers Auckland and provides tailored increase client satisfaction about when and consulting services for lawyers, Think about who is available to work with you on how to bill... and barristers, in-house counsel, law a matter and who has the capability to do the work so on. firms and barristers’ chambers. For more information visit law.auckland.ac.nz/llm 38

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LLM AD LawNews v3.indd 1 11/16/2017 3:28:20 PM PRACTICE

PRACTICE That summary can inform the client and help to set the expectations of your relationship. It can also assist in creating that all-important strong first impression. By highlighting the key features of the law- First Impressions yer-client relationship, it assists the client’s understanding of what is required from them and what they can expect from you. Enhancing your Terms More importantly, it can prompt the kind of open dialogue that is key to any successful of Engagement business relationship. For instance, making it clear that it is perfectly okay for the client to contact you to clarify anything or to BY LISETTE the client, they can add to the confusion discuss any concerns they may have will SOLIS and inhibit the kind of free and frank improve communication and hopefully discussion that is key to a healthy and pro- avoid most common complaints. ductive working relationship. In time, this First impressions can be everything. can ultimately fracture that relationship Will it make any difference? “Business owners often spend a great resulting in dissatisfaction and complaints. A review of all Lawyers Standards Com- deal of time and resources on keeping Is there a way to cut through the legalese mittee decisions issued in the 2015/2016 their existing clients, by cultivating whilst ensuring the terms of engagement year reveals the most commonly raised good relationships and maintaining still cover the must-have information? We complaints by rules are: a high standard of customer service. think there is. • Competency and timeliness – rule 3, Consistently making a strong first Making wholesale changes to your • Discourtesy – rule 10, and, impression is essential to gaining terms of engagement is not an option, as • Fair and reasonable fees – rules 9 and 9.1. new customers and clients, what much of that important detail is essential Consistent themes raised in these com- every business must do to succeed.” to protect both parties and some is also plaints include: delay, discourtesy, or the — George N Root III. required by the Lawyers and Conveyancers failure to respond. While the vast majority Think about the impression you and your Act (Lawyers: Conduct and Client Care) of these complaints find the lawyer has firm make when you meet a new client. Rules 2008 (rules 3.4 and 3.5). not breached their professional obligations, Do they leave comforted in the knowledge the question is how you can avoid them that you are there to protect their interests Simple short summary available in the first place. with the confidence to contact you with The Lawyers Complaints Service has Communication is a two-way street, but any concerns? Or are they left with the designed a simple short summary that if expectations in this area are not estab- dread of how much this will cost, con- can be given to clients with your current lished at the outset, clients will typically fused about what will happen next but terms of engagement. rely on you to initiate all contact and may too embarrassed to say so? A new client will typically leave that first meeting with at least two things: a TERMS OF ENGAGEMENT first impression and a copy of your terms Below are a number of precedent clauses for terms of engagement for barristers and solicitors in private practice. They are provided by way of illustration only and will require amendment to suit the needs of individual lawyers or firms. Each law practice can adopt the terms of engagement as it wishes, subject to the obligations of lawyers under the Lawyers and Conveyancers Act 2006 and the KEY FEATURES OF OUR RELATIONSHIP WITH YOU of engagement. If that impression is not Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.

These Terms of Engagement are intended as a service by the Law Society to members and do not constitute legal advice. Each law practice will need to decide what terms and conditions are what it could have been, will your terms of appropriate for the services it provides. The Law Society accepts no responsibility or liability for anything done in reliance on these Terms of Engagement. engagement save the day? If it doesn’t what What we will do for you 1 General » We will keep you informed about the work we are doing. If you have a question 1.1 These Standard Terms of Engagement (Terms) apply to any current engagement and also to are the implications for your relationship or concern about what we are doing, please contact us so we can discuss it. any future engagement, whether or not we send you another copy of them. We are entitled to change these Terms from time to time, in which case we will send you amended Terms. Our » If you are concerned about how much the work will cost, just let us know. We with that client and the work that will be relationship with you is governed by New Zealand law and New Zealand courts have will give you an estimate of our fee based on the work we think we will need to exclusive jurisdiction. do. If this changes at any time, we will let you know and provide an updated performed? estimate. 2 Services

2.1 The services we are to provide for you (the Services) are outlined in our letter of engagement along with any further instructions that you provide to us in writing (or that we record in Clear and easy to understand writing). 2.2 In order to provide you with efficient advice and services and to provide the most cost- What we need from you effective service, it may be that part or all of your instructions will be delegated to other professionals in our firm. » Please take time to confirm your requirements. It is important that you do this When asked what advice he would give so we can do our best to meet your expectations and deliver the service you require. 3 Communications lawyers to avoid complaints, a senior » Please keep up to date with the payment of our fees or any agreed payment 3.1 We will obtain from you contact details, including email address, postal address and arrangements so we can continue to act on your behalf. telephone numbers. We may provide documents and other communications to you by email member of the Lawyers Complaints Service (or other electronic means). You will advise us if any of your contact details change. » Please provide all the information we need to act on your behalf and advise us 3.2 We will report to you periodically on the progress of any engagement and will inform you of of any changes to your circumstances, as this may affect the advice you require. any material and unexpected delays, significant changes or complications in the work being suggested lawyers should “make sure their undertaken. You may request a progress report at any time.

3.3 You agree that we may provide you from time to time with other information that may be relevant to you, such as newsletters and information bulletins. At any time you may request terms of engagement are clear and easy to that this not be sent to you. [This is required if you propose to collect personal information Our full terms and conditions are attached. Please take time to read these carefully. from clients and use it for a mailing list or other marketing purposes. You should be as clear We are happy to discuss and explain any of these if they are unclear. as possible about the purposes for which you are collecting personal information to comply understand.” with the Privacy Act 1993]. Terms of engagement play a critical role in establishing the expectations between 5899414 lawyers and their clients. The problem is that typical terms of engagement are dense and legalistic. Instead of informing ▴ A full terms of engagement. ▴ The newly developed summary.

40 PRACTICE

complain when their expectations are not met. PRACTICE Nearly 12% of the complaints received during the 2016/2017 year were about lawyers either failing to confirm their instructions or acting without them. About 22% of complaints received were about inadequate communication from the lawyer. How many of these complaints could have been avoided if the client and The lawyer had engaged in a meaningful discussion at the outset to establish their expectations? Fee complaints disruptors The other major source of complaints is fees. Complainants often complain they were charged a fee they were not expecting or are prepared for. Communication and expectation, again, are often at the heart of these matters. If the client is aware of what will increase your costs this may provide them with some feeling of coming control over this aspect of your relationship. More often than not, the client will have received the required client care information (including your terms of engagement) BY VALERIE however, they will have either forgotten what it said, failed to BLAND understand it, or simply not read it – an altogether human trait when faced with a long and detailed contractual document. This highlights the importance of setting out some key features in a They are invading every way that is accessible and understandable to your clients and industry! You have been warned! which they can read at a glance. Based on the complaints it receives, the Lawyers Complaints In fact, they are already here Service believes that improved communication at the outset of amongst us… the lawyer-client relationship could make all the difference. Not only could a number of common complaints be avoided, it could lead to a greater retention of clients and repeat instructions. A It may be the impact of Halloween better relationship makes for a happier client. occurring when this article was being finalised, but it seems easy to fall prey to What can you do? a gothic horror vibe when describing recent It is up to you to choose how you want to address the issues set trends in the delivery of legal services and out above. the impact of the fourth industrial revolu- The Lawyers Complaints Service suggests providing the summary tion. However, since I have recently set up as a covering document to your standard terms of engagement. my own firm, Extra Law, and interviewed a You can add your law firm’s logo. couple of others in similar Alternative Legal It highlights the key features of the lawyer client relationship Services Providers (ALSPs), I can – as one and is designed to encourage discussion and interaction. It is of those ‘disruptors’ – show the invaders not meant to replace the client care information. It is designed in a more friendly light. to help both parties establish their expectations and encourage What makes legal services ‘alternative’ clients to raise issues directly with their lawyer. according to overseas commentators is Anything that can improve your first impression and avoid that “they are delivered by a model that being the subject of an unnecessary complaint is surely worth departs from the traditional law firm deliv- considering. ery model, for example, by using contract The summary can be downloaded from the NZLS website by nav- lawyers, process mapping or web-based igating to For Lawyers ▹ Regulatory Requirements ▹ Client Care. technology” [Thomson Reuters Legal Lawyers can use this version or alter it to meet their specifications. Executive Institute, in partnership with Some points of the summary, such as the information about fees, the Georgetown University Law Centre for may not apply to every situation and lawyers are encouraged to the Study of the Legal Profession and the edit as necessary. University of Oxford Saïd Business School: The Lawyers Complaints Service would appreciate any feedback ‘The 2017 Alternative Legal Service Study – on the above article or your experiences if you decide to adopt understanding the growth and benefits of the short one page summary terms of engagement. Feedback can these new legal providers’. And, I discovered, be directed to [email protected]. although New Zealand’s ALSPs are part of a worldwide phenomenon stemming from Lisette Solis has been employed by the New Zealand Law technology advances and value for money Society to analyse complaints and other communications drivers, the individual manifestations can considered by the Lawyers Complaints Service. come about for very human reasons.

41 PRACTICE

Extra Law is the latest of the three ALSPs featured in this article to commence business (October 2017). Helen Mackay’s new firm, Extra Law Juno Legal, began in April 2017 and Sarah Taylor joined lexvoco Extra Law arose out of in July 2017 as part of the expansion of lexvoco’s operations from my own experience as Australia to New Zealand, which began in 2016. All three ALSPs a government in-house look to provide their clients with lawyers on a flexible basis lawyer. At times, I delivering legal services as a temporary team member within wanted to find on-de- the organisation. mand experienced tem- porary team members lexvoco to share the workload, Sarah Taylor’s ILANZ scholar- but couldn’t. So it’s a ship paper (Valuing our Lawyers: personal crusade with a The untapped potential of flexible simple message: clients working in the New Zealand legal are busy and sometimes profession) was the catalyst for they just need an experienced extra pair of lexvoco approaching her to join hands in their team as quickly, seamlessly them. Lexvoco’s values, includ- and cost-effectively as possible. I previously ing “life’s first; work’s next” and worked in private practice, but working as “think differently”, resonated an in-house lawyer in government felt right, with Sarah and she leapt at the just as it felt wrong to be too busy to give opportunity to have a platform to individual pieces of work the attention they implement many of the findings merited. Creating my own ALSP law firm from her paper, including the abil- has been fun, and Extra Law is a vehicle to ity to connect great lawyers with in-house legal teams when provide benefits for future team members they need help. The fact that Sarah could work on her own as well as for myself and fellow government terms, while also continuing to work as an in-house lawyer at in-house lawyers. Benefits such as limiting Tasman District Council, sealed the deal. Sarah likes the fact that unhealthy stress, fully utilising all of our legal lexvoco doesn’t just offer a resourcing solution, but also can also training for a more rewarding experience, propose other continuous improvement solutions for in-house facilitating career progression, and assisting legal teams. This includes the use of technology such as the the Government Legal Network with its MyDay app, developed out of lexvoco’s Australian technology goal of increasing collaboration of lawyers department, that recently was a 2017 Legal Innovation Index in government. As well as just getting the winner. As Business Development Manager for lexvoco, Sarah’s interesting work done. role is to make the connection between the client’s need and Although we don’t completely agree on the right solution, which may involve people, technology, or a label – I like Alternative Legal Services a process or system improvement. Provider, whereas Helen likes “Bespoke Legal Services Provider”, and Sarah prefers not to Juno Legal use a label – we can agree that innovation is As for Helen Mackay, she didn’t see why the legal profession a key feature of what we are doing. As practi- needed to be so binary – you either had to work all hours of the tioners pioneering a new option of providing day or you got out. Her primary driver in setting up Juno Legal legal services, we see the advantages that its was greater equity in the profession: providing a vehicle for inherent flexibility can provide to clients, and talented lawyers who wanted flexibility in their legal practice, even how it can enhance rather than disrupt either because of their business interests on the side or their the legal service provided by traditional law parental responsibilities, or because they were ‘wise heads’ firms. And we are not afraid to collaborate wanting to achieve a later career/life balance. From a business on an occasional article like this one… point of view, Helen identifies So perhaps it seems less like a horror with the Richard Branson school movie and more like the ‘giving and receiv- of thought, that happy employ- ing’ vibe of Christmas. Disruptors, like Extra ees means happy clients. Juno Law, lexvoco and Juno Legal are here, but Legal also helps in-house legal we’re out to show that our presence can be teams lift their performance and a good thing – even a present. sharpen their focus through their consulting practice and provides Extra Law founder Valerie Bland information technology consult-  [email protected] worked ing for legal teams, via their in private practice for 15 years and the experienced legal technologist, Ministry of Education for 5 years before Matt Farrington. establishing Extra Law Ltd.

42 PRACTICE

PRACTICE Time for a CPD warrant of fitness

BY KEN TRASS

• The need for careful and specific goals that traverse two or more CPD Recently I received in the mail a friendly reminder planning regarding your learning, years – that is fine so long as your that my car needs a service and WOF. And, like your and yearly minimum (reflecting on a vehicle, it’s important to have regular check-ins with • Approaches for developing reflec- minimum of 10 hours) is met. Your how your CPD is progressing and if anything needs tive practice skills. CPD plan can also be on many levels: servicing. We know from experience that if we have • Short-term activities that you’re neglected that maintenance then, come WOF time, we’re Fine-tuning your planning for this CPD year that more likely to uncover issues needing repair, often within CPD engine help meet an identified need (or a tight timeframe. We are now two thirds of the way part need), through the 2017-18 CPD year. This is • Activities that you are consider- Looking under the hood of a good time to review your CPDPR ing, or have planned but not yet the CPD programme (CPD plan and record). fully completed, or The CPD programme is rapidly approaching its fourth To remain competent as a prac- • Learning goals that have not yet cycle. The CPD scheme was launched in October 2013 tising lawyer, it’s important to keep been met, or that are awaiting and requires each lawyer to maintain a CPD plan and reviewing how you are developing appropriate activities to pres- record and submit a yearly declaration confirming that as a legal professional and how this ent themselves so they can be their plan is compliant with the CPD rules. is translating into practice and, completed. This year 99.87% of the profession made timely ultimately, the client experience. Goal-setting with measurable CPD declarations and, of the 1382 CPD plans that were Quarterly reviews are a good start. outcomes can assist in the above audited, 83% were fully compliant with the CPD rules. In reviewing your CPD plan, the process. It is important, in the devel- This third round of CPD audits, shows that the vast following questions may assist: opment of CPD, to plan, implement, majority of the legal profession are engaging fully in • What activities have I planned for evaluate and reflect. CPD and, importantly, recognising its value as a tool to in this year’s CPD Plan? help maintain professional competence. • Why did I select these activities Things to check off Many of the CPD plans submitted this year displayed and how will they help my prac- before you drive away far more structure in the planning and reflection aspects tice? How will I assess this? • Your CPDPR is up to date, includ- than in previous years with many lawyers focusing • Have the activities selected had ing: your identified learning on considering how to get the most value out of their the intended effect, tangible or needs, and reasons for them and learning activities long-term. More lawyers are also being intangible? What is my evidence your personal written reflections more selective in what they record on their plan with for this? on each completed activity. a larger number focusing their energies on one or two • How are the activities I am • You have set aside time in your areas of learning that were of most importance to them. engaged in enhancing my com- calendar to revisit your CPDPR petence and the quality of legal before March 2018 to ensure you Parts and materials services that I deliver to my cli- can make a timely declaration. NZLS has been fine-tuning its CPD resources, adjusting ents? How will I know this? • You are on track to declare on or these to keep CPD moving forward. • Have I met my goals and objec- before 31 March 2018. What NZLS is driving for is an educative and support- tives? If not, where am I up to so ive approach to help embed and engage the profession far? Some NZLS support resources are: in what CPD is all about – increasing reflective practice, • What further learning or profes- • 4 movies (1500+ views) self-directed learning, and professional competence. sional development is required in • 1 archived webinar (1100+ views) Many lawyers have reported that this approach has any of my identified areas? • Guidelines to the rules been appreciated. • How is this information linked to • CPD planning template Over the last three years NZLS has communicated what I completed last year and • CPDPR exemplars with a large number of the profession to give guidance what did I/will I carry forward? • 10 LawTalk articles and support relating to CPD matters with the following The answers to these questions • Extensive FAQs being the main areas of focus: may mean your learning plan now We’ve connected with: • The flexibility of the CPD programme, changes. • 4,400 lawyers via CPD audits • The components of a CPDPR and what a CPD decla- When you are planning your learn- • Over 3,000 lawyers through the ration means, ing, you may be choosing learning 2016 review of CPD

43 LETTERS

LETTERS

Letters to the Editor

Let’s relax the • The work is done for free (pro bono), While pro bono services are generally • The lawyer has his or her employer’s understood to mean legal services deliv- ban on employed permission, ered for no reward (or for a lower fee in low • The lawyer has done continuing profes- bono services) as part of a public service lawyers doing sional development in areas appropriate there is some confusion about what work to the type of pro bono work the lawyer does qualify. In some cases, a lawyer is other work does, carrying out free private work. Is pro bono • The lawyer has, say, two years of post-ad- work any free private legal work or is it The Lawyers and Conveyancers Act mission work experience. something else? 2006 bans employed lawyers from doing For the legal profession not to actively Mr McLean makes a good point con- legal work outside their employment, promote the changes required to allow cerning the need for opportunities for other than through community law cen- employed lawyers to provide legal work employed lawyers to provide pro bono tres. Breaching the ban means a lawyer is outside their employment – on something services. We agree that options should deemed by the Act to be guilty of profes- like the above basis – could look suspi- be available for employed lawyers. There sional misconduct. ciously like our profession is less interested are already options such as through the The ban significantly limits the scope for in aiding access to justice than it is in community law centres, citizens advice employed lawyers to aid access to justice protecting the livelihoods of fee-charging bureaux and other NGOs. There are also and, because community law centres are lawyers. some more tailored options – there is for ill-suited to helping with litigation and The September 2017 edition of the New instance no reason why law firms can’t other protracted disputes, is especially Zealand Law Journal contains a full article offer pro bono services using in-house law- detrimental to access to justice through by me on this subject. yers, with whom they have an association, the Courts or other tribunals. John McLean on a limited employment basis, just for I have suggested to the Law Society that Head Counsel, Rabobank New Zealand that work. There are also some interesting the ban should be relaxed. In response, new models of law firms based on social the Society wrote “while it is a very com- Comments by Mary enterprise models which look to provide mendable suggestion to take this wider, Ollivier, NZLS General pro and low bono services funded by other the logistics could be rather problematic”, Manager Regulatory fee income. It will be interesting to see going on to cite the difficulty of amending The involvement of all lawyers in pro bono if this develops further in New Zealand. the Act. The Society also pointed to “poten- work (both legal and non-legal pro bono All jurisdictions require compliance with tial risks and unintended consequences… service) is supported by the Law Society. the regulatory requirements for those law- [f]or example, should a first year graduate Nevertheless, the consumer protection yers doing pro bono legal work. In many in-house lawyer be able to provide legal focus of the Lawyers and Conveyancers regions the main barrier is not the mini- advice to the public outside the supervision Act seeks to protect fee paying, low bono mum regulatory standards required but of the likes of a senior lawyer working in and pro bono clients to the same extent. rather the need for professional indemnity the area (as they get in the community One of the important safeguards for insurance. In some jurisdictions, this has law centres).” vulnerable clients is the provision of been mitigated. In New Zealand it is not Despite what the Law Society has said, client care information. This includes client required. Having said that, it is wise to it is impossible to imagine any risks to the engagement letters and information about make sure anyone doing pro bono work has public if employed lawyers could do legal when and how fees and disbursements will insurance in place. Community law centres work outside their employment, on the be charged and how services are going to and other advisory services usually have following basis: be performed. this in place for their volunteers.

44 MEDIATION

MEDIATION Changing the way we argue Part 3 – Arguments-as-war and mediation

BY PAUL between the parties. That alone is resolution is not owned by those SILLS a significant lost opportunity. who are legally trained. Lawyers as mediators The role of emotions The current adversarial dispute resolution par- The “over lawyering” of mediation is and feelings adigm has significantly constrained the way that medi- considered by some to be a major issue This is an area that is not well ation has developed. Let’s look at some examples. in dispute resolution today (eg, Tony addressed by the adversarial model Willis’ comments in “Overlawyering of or the one day mediation. Nobody The traditional one day, ADR a major issue”, page 27, LawTalk with experience in dispute resolu- late stage mediation 853, 24 October 2014.) tion would deny that emotions and Research by Grant Morris of Victoria University indi- A large number of mediators are feelings play a significant role, but cates that 94% of all commercial mediations in New legally trained (particularly in the very little has been done to exam- Zealand are conducted using the traditional one-day area of commercial mediation). The ine that role. There is little helpful mediation model (Commercial Mediation in New Zealand ranks include retired judges who advice for those who engage in Project Report). have moved from the bench into dispute resolution regarding the The traditional one-day mediation frequently occurs the arbitration and mediation space. role of emotions. For example, too late in the life of a dispute. Parties often arrive at The dispute resolution institu- advising the parties to “get over mediation as a precursor or adjunct to litigation, which tions have a significant number of themselves” and to stay objective looms in the background and indirectly influences the members with legal training, and a does not work. We need to develop mediation process. disproportionate number of those a better understanding of the ways For example, by the time the parties mediate they are members sit on the committees that emotions and feelings (and in often too focused on their legal rights and are increas- whose decisions propel the future particular, shame, anger, hope and ingly polarised. By focusing on rights-based arguments direction of dispute resolution. This fear) affect the parties in dispute and the adversarial legal process (pleadings, discovery, is an issue because most lawyers and influence their reactions to briefs of evidence, etc) little or no time is given to iden- struggle to get past their training, challenges. We need to develop tifying and exploring underlying needs and interests. which exalts critical analysis, deduc- mechanisms for recognising and This model is within the comfort zone of most lawyers. tive reasoning and the Socratic working with these complex issues. Lawyers are familiar with adversarial tactics, the dis- method. They risk developing a The above examples are, I accept, section of the other parties’ legal and factual positions, narrow theory of dispute resolution an over-simplification of what and the limited negotiation tactics needed to achieve based upon precedent and process. occurs in the market. There is great settlement. Lawyers, by default, tend to make work being done in the areas of Concepts such as creative outcomes, empathetic dispute resolution an adversarial early facilitation, collaborative and listening, synergies, win-win outcomes, etc are terms process. It should not be. Evidence transformative mediation. There are that, while bandied about in mediation, are not often for this is found in the development legally-trained mediators who have part of the process. They make for good soundbites but of dispute resolution itself. Most of successfully disconnected from the little else. the important advances have come argument-as-war metaphor and The adversarial approach coupled with the late through the collaborative efforts of have embraced all the complexity timing of mediation means the parties are bullied into individuals who came to dispute of the human condition and our settlement: by the process they experience leading up to resolution through different avenues. relationship with conflict. However, mediation, on the day, and by the cost and uncertainty of Cross-disciplinary work involving law, the research of Grant Morris indi- a trial just around the corner. This is not a collaborative economics, psychology, organisational cates we have a long road of change environment in which negotiations on the interests and behaviour, and sociology have been ahead of us. needs of the parties can take place. invaluable. For dispute resolution to As a result, mediations tend to approximate what flourish, we need to capitalise on the Auckland barrister Paul Sills the parties consider is likely to happen in court and differences in the various fields and  [email protected] spe- the fruitfulness of any subsequent enforcement action. maintain productive working rela- cialises in commercial and civil lit- At best, a late stage mediation settles the dispute, but tionships in order to share resources, igation. He is also an experienced usually does not repair or improve the relationship capability and understanding. Dispute mediator.

45 TIKANGA AND TURE

TIKANGA AND TURE The Victoria University of Wellington Māori Law Students’ Society and its inspiring initiatives

BY CARWYN JONES

Ko te manu e kai ana i te miro, nōna te ngahere Ko te manu e kai ana i te mātauranga, nōna te Ao The bird who feeds on the miro berry has the forest The bird who feeds on knowledge has the world

and with faculty members about ways to explore these For me, one of the real joys of teaching at a law ideas. Eventually, they arrived at the idea of inviting school is seeing our students using their developing guest speakers to participate in wānanga or discussion skills and knowledge of the law to engage in the world sessions that would address different legal topics and around them and to work towards positive change problems and consider how Māori law would deal with in our society. Over the last few years, the Māori Law the issue and how the New Zealand state legal system Students’ Society at Victoria, Ngā Rangahautira, has been would deal with it. For example, one session focused on responsible for two inspiring initiatives that I’ll share the ground-breaking Whanganui River settlement – Te a little about in this piece: Te Hīnātore – a programme Awa Tupua – and was based around a facilitated conver- of occasional seminars on tikanga and law; and Ngā sation between speakers who could variously speak to Kaiaronui – a group focused on proactively participating the technical legal structure of the settlement and also in law reform processes. the tikanga/Māori legal principles that are recognised Te Hīnātore developed from a group of our students in that settlement. These sessions came to be known identifying the value of exploring the relationship as Te Hīnātore which can mean ‘a glimmer of light’ or between New Zealand law and Māori law (as incorpo- ‘a glimpse’ or even ‘enlightenment’. The conversations rated in tikanga Māori). Initial conversations about how that came out in these discussions were incredibly rich the students might encourage and support a greater and the students saw them as being of real, tangible understanding of these two legal traditions began after value to their legal development and something that a presentation from Justice Joe Williams in which he is an enhancement to the LLB qualification they are addressed, amongst other things, the creation of a course working towards. for members of the judiciary that focused on issues of Another student-led initiative of note is the establish- law and tikanga. ment of a group called Ngā Kaiaronui. Ngā Kaiaronui Our students were interested, and heartened, to hear takes its name from the ‘kete aronui’ one of the three that judges were taking seriously the need to consider baskets of knowledge in Māori tradition. This is the these issues. However, some of them were struck by basket of knowledge “of aroha, peace and the arts and the fact that this was retrofitting to some extent and crafts which benefit the Earth and all living things – one observed that, ideally, it would be better to encounter of the three baskets of knowledge. This basket relates to ideas about tikanga (as the Māori legal system) at law knowledge acquired through careful observation of the school, at the same time as being introduced to ideas environment. It is also the basket of ritual, of literature, about the New Zealand state legal system, common philosophy and is sometimes regarded as the basket law, and international law. of the humanities.” ‘Ngā Kaiaronui’, therefore, refers The students began discussions amongst themselves to those people who work with that knowledge and

46 TIKANGA AND TURE

in those fields of endeavour. Ngā a large group of those who had been involved went to Kaiaronui is a group of students who The conversations Parliament to support the designated speakers. These have come together to proactively that came out in students are building up valuable expertise in terms of engage in law reform processes. these discussions preparing and presenting submissions and have helped The group has now made several were incredibly to run workshops for members of my own community submissions to select committees rich and the who wanted to make submissions on our Treaty set- on issues they are concerned about, students saw tlement bill. and especially issues of particular them as being It is deeply inspiring to see our students engaging relevance to Māori. One of the first of real, tangible with the legal world and the Māori world in ways like matters addressed by Ngā Kaiaronui value to their legal this and this also points to an area in which the strength was the reform of Te Ture Whenua development and of the profession is developing at pace. Māori – the Māori Land Act. As this something that is is an area in which I work, Ngā an enhancement Dr Carwyn Jones  [email protected] is a Kaiaronui invited me to an initial to the LLB Senior Lecturer at the Victoria University of Wellington meeting to provide some technical qualification Faculty of Law. He will be one of the contributors guidance on the Te Ture Whenua they are working to a regular column on Māori legal issues and the Bill, then before the Māori Affairs towards. practice of law. select committee. I was expecting that there would probably be half a dozen or so stu- dents interested in working on the submission. I was completely taken aback when I arrived in the meet- ing room to find about 30 students there, ready to get to work. Because Providing Professional Indemnity and specialist insurance of their numbers, the students were able to break into groups to consider products to the Legal Profession different aspects of the bill. Visit www.justitia.co.nz for further information and application forms I was impressed with the way Or Contact: Mr Ross Meijer, Aon New Zealand they all stuck with the work of 04-819-4000 drafting the submission and when it [email protected] came to speaking to the submission,

47 PRACTISING WELL

PRACTISING WELL How to truly enjoy your holiday BY KATE GEENTY

During the Christmas and New Year holidays, how can you make sure you don’t waste your time off stressing about work? There’s no point heading to the beach if you’re going to spend all your time stewing over how much work you think you should be doing, or you’re too busy looking at your emails to check in with your family. To make the most of your break take some steps to ensure you’re not spending your holidays tied to your phone. Make a list – and check it twice

A couple of weeks before you go, start looking at your workload. to limit the amount of time you spend looking at work messages. ◂ Rose Holley Sort out what needs to be done before you go, what can wait and Rather than constantly looking at your phone throughout the day, what can be handed over to someone else. Leaving this until the set specific times to sit down and check your inbox. It might be last minute is more likely to induce anxiety and runs the risk of the same time each day, or you might need to change it around things being missed. to fit in with what your friends and family have planned. Either bnd Time management expert, Robyn Pearce, suggests making lists way, set a time limit and stick to it. “Restrict the amount of time - or even physical piles - of work, sorting your tasks into things you look at emails and make yourself accountable to your family,” that can be finished before you leave, work that can be delegated says Ms Pearce. to a colleague, and (if you must) work that you can take away Remember, everybody needs a break from work. Constantly with you. She says this exercise is like packing your bags. “If you thinking about work without allowing yourself a chance to unwind start in advance, you’ve got more time to then prune it back, so and switch off is a recipe for burnout. you’re only taking the things that you really need to take.” Set boundaries Does going on holiday make you feel sick? The easier you make it for people to contact you, the more likely Does your head start pounding or your throat scratching it is that they will. “Force people to work a bit harder. If they not long after you power down your computer for a well- want to reach you, don’t be too available. We educate the people earned break? For some people, the stress of going on around us how to treat us. If we make ourselves too available all leave is enough to make them ill. There’s even a name the time we deserve what we get,” says Ms Pearce. for it – ‘leisure sickness’. The term was coined by Dutch She suggests creating an out-of-office email message that says academics in a 2002 study that looked at how and why you’ll not be checking your emails (or only checking them infre- people get sick during weekends or holidays. quently) but that people can call you on your mobile if it’s an The study, which looked at the experiences of 1,893 urgent matter. “People might whip off an email quite randomly, people, found that leisure sickness is a relatively common but they won’t generally call somebody unless it’s a real emergency. condition. The most frequently reported symptoms So, you’re forcing them to do something extra than just whack were headaches or migraines, fatigue, muscular pains out an email.” and nausea. The researchers found that the risk factors for leisure sickness were a “high workload and person’s If you must check emails, restrict characteristics, namely the inability to adapt to the non- the time you spend doing so working situation, a high need for achievement, and a If the thought of switching off your email completely during your high sense of responsibility with respect to work”. holiday makes you break out in a cold sweat, you should still try

48 NEW LAWYER

NEW LAWYER ‘Tis the season of nice things that happen to you. summer clerks If mental health issues arise during your clerkship, know that that is not uncommon, but it will feel terrible and BY KATIE terrifying, and that is okay because it COWAN is a terrible and terrifying thing. If your sends out as you can. They help you feel firm has the EAP (Employees Assistance Hello, lovely summer clerks. As you like you know what is going on and that Programme) system, use it as soon as the undertake your first work in the legal you are a part of the wider lawyerly family. thought, “Should I get some help for this?” industry proper, allow me to extend a Most firms have systems of precedent occurs. If your firm does not use the EAP warm welcome to you, in the form of a documents that you can access to see how system, use the Law Society’s Friends’ non-exhaustive list of things to keep in things are usually done. Important: You do Panel. They are discrete, compassionate, mind as you go about your clerkship. not have to draft mortgages from scratch. wonderful people; I have relied on them This column was inspired by researching Try not to be gross. By that I mean try many times. This industry knows all about what advice summer clerks generally get, not to do anything that would force some- managing mental health while working, and coming upon well-meaning but ter- one to have a meeting with you about what and there are confidential means to get rifying advice from American mega-firms “being professional” means. help and perspective. like, “remember you are being constantly Know that if you had pre-existing mental If/when you make a mistake, tell some- watched!!!”. health issues it is okay that these did not get one right away. Mistakes are a painful but I think we can do better: resolved by starting a prestigious summer ordinary part of difficult work. Most of Expect to know very little, and know that clerkship. It turns out that mental health them are fixable, and it says more about anyone giving you work expects you to issues rise and fall away independent of you that you took responsibility than that know very little. Summer clerks are hired more for their promise and attitude than their existing knowledge, so do not worry Friends to help those struggling at work if you have to research what everything is The Law Society’s National Friends Panel is made up of New Zealand lawyers all the time. The summer clerk who asks who are willing to be contacted on a confidential basis by fellow lawyers with questions, is eager to learn, and carefully questions or concerns relating to practice issues. records/researches their instructions is the If you are worried by something related to your work as a lawyer, if you’re summer clerk who is beloved and asked having finding it hard to balance work demands with your family or friends, or back. if you have concerns totally unrelated to your work, you could find it helpful to Hopefully, you will not start your discuss things with someone who understands the pressures of life as a lawyer. summer clerkship, as I did, right as a Panel members can draw on their own experience to suggest ways for members global financial crisis hits. Seeing enthu- to approach issues they face and can make recommendations about helpful siastic young people who are about to resources available through the practising well initiative. graduate into a job market that is suffer- Areas where Friends may be able to provide a listening ear include: ing mass redundancies makes everyone • Workplace issues (such as bullying, communication, harrassment, workload, uncomfortable. career advancement or other employment-related matters); Do not worry too much if you are not • Financial problems (personal or firm-related); having the best possible experience at all • Partnership issues; times. Adjusting from the autonomy of a • Tax problems; law school day to being present, alert, and • Trust account problems; nicely-dressed for an eight hour+ day, all • Work/life balance; while trying to smile and impress everyone • Problem clients, files, judges or other counsel; at all times is exhausting and bewildering. • Office management; There is a lot to love about summer clerk- • Ethical issues; ships, but do not feel there is something • Health and state of mind; wrong with you if it is also hard-going. • Using an alternate/attorney; Try not to wear any clothing with writ- • Where to next in my career? ing on. Further information on the Law Society National Friends Panel may be obtained Do try and keep up with as many of the by contacting your local branch or visiting the National Friends Panel webpage email alerts and legal updates the industry on the NZLS website, in the Practising Well section under Practice resources.

49 PATHWAYS IN THE LAW

PATHWAYS IN THE LAW Cooper Legal you made the mistake in the first place. Give your secretary a Christmas pres- ent. More generally, treat secretaries and BY NICK support staff with the respect and humble BUTCHER gratitude you would a wise and benevo- lent fairy godparent. They invariably hold more institutional knowledge and practical About 99% of the work the lawyers at Cooper Legal do is wisdom than you can fathom. around historic abuse and associated human rights claims. If you can, soak up as many different And they’ve reached at least 700 settlements for victims of areas as you can. As a law student you abuse who were in state care as children. get an impression of particular practice “That figure would be a conservative estimate,” says Cooper areas as fun or boring but you cannot know Legal principal Sonja Cooper. from pure academics what they are like to, The Wellington-based firm is also involved in employment law, y’know, practise. If you’re in a commercial medical legal issues, education, youth law and civil litigation. team, you might ask to tag along to a list Social issues were always at the forefront for Ms Cooper, who appearance. If you’re in employment, you started out as a family lawyer over 30 years ago. She has also been might ask if you can shadow someone as a youth advocate since she was admitted. During those early years they complete a conveyancing settlement as a young lawyer working for law firms of varying sizes, she also on a Friday. In doing this you might shock practised both public and employment law. yourself by realising you hate public law “I was considered a sort of Jill of all trades and if there was and love tax. anything extra in the litigation team that needed attention, I would Incidentally, see if you can get into the often pick it up,” she says. tax team. Tax teams are usually fun and About nine years into her legal career, Sonja Cooper became a weird and comprised of nerds, and their sole barrister and solicitor. work is basically elaborate puzzles. “At that stage I was still doing my core work of family, youth Finally, know that there is no “right” way advocacy, general civil law, and employment and was then to do a clerkship. I assume that you are appointed a District Inspector of mental health in August that hardworking and intelligent, eager to learn, year (1995),” she says. respectful and professional. You would not have got the position if you were not. So, Human rights moves to the front if I were to replace all of the above with a Upholding human rights slowly took centre stage in her career single notion, it would be simply to keep and it was this work that would eventually bring Ms Cooper into being those things, and to pay attention contact with many people who had been abused as children while and reflect a lot on the experience as it is in state care. happening. That will take you far. She says 1995 was the year when the first of the historic child So good luck! We are all rooting for you. abuse cases came her way. Some of that work was instigated by lawyer Jill Moss. She was about to go behind the bench as Judge An end of year wish Moss and made some potential case referrals to Sonja Cooper. ‘Tis the season of summer clerks and sun- “I also had a handful of historic child abuse claims that came shine. What a wonderful combo. I wish all from various other sources. One case I learned had come from a of you, summer clerks and everyone else, a referral by the person’s hairdresser. They were all social welfare, season of rest and laughter and good food. either foster care or adoption cases,” she says. I look forward to joining you next year for The psychiatric hospital work came later. an exciting 2018. The Limitation Act conundrum With love and warm regards, One of the biggest hurdles was the Limitation Act 1950 and whether Katie the abuse claims could be filed because of the time lapse since the alleged abuse. Katie Cowan is a former lawyer, now The revised Limitation Act 2010 is not retrospective – unless director of Symphony Law, a consulting defendants agree. practice for lawyers. She hosts The New “This means most clients will be covered by the Limitation Act Lawyer podcast, which can be found at 1950 – which requires claims of our kind to be brought within  thenewlawyer.co.nz. two years of the cause of action arising (or within two years of

50 PATHWAYS IN THE LAW

Some of these people are eight or even 14 years into the process and they’re only now settling. It’s understandable, and some of the younger ones are incredibly damaged by their experience because it was more recent than the historical cases

▸ Partner Amanda Hill (left), and principle Sonja Cooper. adulthood) or within six years if there are reasonable grounds for delay. “If a client is already in their 40s or 50s, even their 30s, by the time they instruct us there are real hurdles to get over,” she says. Ms Cooper says there are two ways through this obstacle. “One – if the person reasonably did not understand there was a link between the abuse they suffered and their clinically rec- ognisable damage, and two – if the person has been under a disability – a clinically recognisable condition that has prevented them from instructing a lawyer. “The cases we won in 2002/2003 in the Court of Appeal meant that many claimants should have had a good chance of getting through either or both of these hurdles. “However, the courts started taking a assistance to those who suffered abuse Limitation Act for claims like ours. Many more rigid approach from 2007 onwards, prior to 2011. Commonwealth jurisdictions are now which meant that only a few would be “Outside of the court, our clients have abolishing limitation periods in historic able to surmount the barriers,” she says. the protection of our agreement with the child abuse claims, including Australia.” A decision of the Court of Appeal in Ministry of Social Development to ‘stop 2015 has somewhat ameliorated the harsh time’ for limitation purposes. However, any No end in sight for position which existed for some years, and claims progressed to litigation have to deal abuse claims the 1950 Act was amended to give courts with it and the cost of doing that is high Twenty years after Sonja Cooper’s initial a discretion to extend time for specified as we need a full psychiatric report. The work in this area, the wheels of justice are victims of abuse, although the scope of that professionals who are willing and qualified still turning slowly. has not yet been tested and the wording to do the reports are rare,” Ms Hill says. “We have over 800 current open files we is pretty complex. She says this also means that claims are working on and yet we have already Law firm partner, Amanda Hill, adds progressed to a trial are carefully vetted settled hundreds of cases. We settled 320 that the Limitation Act 2010 is much for Limitation Act potential issues. psychiatric hospital cases in 2012,” she says. kinder to young victims, but provides little “Scotland has just abolished its There have also been a significant

51 PATHWAYS IN THE LAW

number of historic church abuse cases involving a range of after 1990, you have a potential Bill of denominations. Rights claim too. So the work that goes into There was a time when representing people who were abused the cases for young people is a lot harder in state care almost came to an end for Cooper Legal. because of these complexities,” she says. “We lost two trials in 2007, and in 2008 Legal Aid sent us a Ms Hill says many of the younger clients letter informing us they were about to embark on a process of are also second generation welfare chil- withdrawing legal aid for about 600 of our clients. We were also dren which can cause conflict of interest subjected to a major audit because we were one of the biggest challenges. recipients of legal aid,” she says. “Their parents were state wards. So it “An audit that we came away from perfectly clean,” adds Amanda could be their father or mother was abused Hill. in care who has made an allegation against “It was a really dark period for our firm. I had to tell many of the state, and then his or her children could my staff that I couldn’t guarantee any ongoing work, however we be making a claim against him or her for came back from it all,” Ms Cooper says. similar abuse.” Media coverage has been critical to its momentum and pace. Drug and alcohol addiction is a common “It’s been incredible, as through media exposure we got the thread in many of their clients. Human Rights Commission on board to publically back the work Not only are the legal claims complex, we do, including the need for an inquiry. but the claimants are often just as complex and damaged. Journey to partner As lawyers, Sonja, Amanda and their Amanda Hill began working at Sonja Cooper’s firm in 2005, and was team also have to weather the frustra- a junior counsel for Ms Cooper at a 2007 trial lasting nine weeks. tion of their clients who have lived with After the trial and the 2008 Legal Aid debacle, she decided to memories of their abuse for long periods look at other areas to practise law in. and often want and demand an instant fix. That included working in an insurance litigation team, and a “Some of these people are eight or even stint as an employment lawyer at NZPost. 14 years into the process and they’re only “At that point I felt I’d moved away from my original goals and now settling. It’s understandable, and it was through an email to Sonja about a job at the Ministry of some of the younger ones are incredibly Social Development that Sonja asked if I’d consider coming back damaged by their experience because it to work for her,” she says. was more recent than the historical cases,” That was 2014, and Ms Hill was hired as a senior associate and she says. is now a partner, and things have never been busier. Research is a massive part of preparing Sonja Cooper says there is little chance a projection by the for the kind of work they do at Cooper Ministry of Social Development that his- Legal. Sonja Cooper has just completed her toric claims would be completed by 2020 Masters of Laws and is in the early stages will happen. of embarking on a PhD. “Given that we are still receiving instruc- “Research is absolutely critical here. tions, this is not possible. In October alone There is very little New Zealand jurispru- we opened 67 new legal aid files and most dence so we have to watch very carefully of them are new clients with claims against at what’s going on in England, Canada and the Ministry of Social Development for Australia particularly where new laws are abuse they suffered as children in state being developed.” care,” she says. Cooper Legal are members of the In October Association of Child Abuse Lawyers which Large workload alone we is based in England and the Australian “We are currently working six days a week. opened 67 new Lawyers Alliance, which has helped build We’ve just got so much. Our clients range legal aid files a network of lawyers involved in abuse in age from 17 to 80-years-old,” Ms Cooper and most of cases internationally. says. them are new “We are very isolated in New Zealand. You’d think the historical claims would clients with You could count on two hands the amount be the most difficult but Amanda Hill says claims against of lawyers that do human rights work in it’s the younger people’s claims that often the Ministry this country,” she says. prove the most challenging. of Social A sign of the current times perhaps Development The legal team because we live in the digital information for abuse they It’s an all-women team of seven lawyers age. suffered as at Cooper Legal but not for any particular “There’s so much information from so children in state reason as they’ve had men work there many sources and all claims that come care before.

52 Courtney McCulloch is an associate and has been with the firm for the Public Defence Service and then for over eight years. She is currently working three days per week Cooper Legal. on a flexible work arrangement, having returned to work after “You definitely see a different side of having a baby last year. New Zealand. People have said to me, She has a degree in psychology, a useful skill when dealing with they could never work with the clients I and understanding some of her clients. work with, but then I’d struggle to work “Being able to work with people who have both mental health with many of the corporate clients they and legal issues was very appealing to me. It’s been a really good work with. On a personal level it’s very fit for me as I never thought I’d be using that degree in my law rewarding work that we do here,” she says. practice,” she says. Esther Kim says when she was studying Olivia Taylor is the newest member of Cooper Law. It’s her law her plan was always to work for the first job in law. Previously, along with some short internships, most vulnerable people in society. she worked in Uganda with refugees including women who had “I grew up in South Auckland and a lot been abused through genital mutilation. of my old friends were in and out of the “It was through being in the audience at a lecture that Sonja District Courts and had CYFS (Child Youth Cooper was presenting that compelled me to want to work here,” and Family) involvement in their home she says. lives. I saw how this played a part when Toni Knipping has been with the firm for about two years and they became part of the justice system. it was her first job after graduating from law school. They’re people that need representation “Studying politics along with law got me interested in human from people who see them on an equal rights and I also volunteered for the Wellington Workers Rights footing,” she says. service which was advocating for mostly low income workers. I Miss Kim has also been a volunteer for originally applied for a legal secretary role but Cooper Law turned several community law groups including around and offered me a solicitor role instead. I think you need the Otara Community Law Centre. to be passionate about human rights law or you’d find it very Essentially, the sort of lawyers Cooper difficult to endure the kind of work we do,” she says. Legal look for when hiring are those who Lydia Oosterhoff originally studied journalism before have good grades in their law degree branching into law. She then worked in communications before because the work is intellectually chal- travelling overseas where she worked in Holland for a public lenging. They must also have an ability broadcaster that specialised in human rights stories and the to connect with people and prove they rights of the child. have been involved in voluntary work for When she returned to New Zealand Miss Oosterhoff worked in community law centres or other related Government communications and policy advisory before working advocacy work.

53 SPOTLIGHT ON LEGAL AID

ACCESS TO JUSTICE Spotlight on legal aid

BY GEOFF ADLAM Highest average gross legal aid payments, year to 30 June After dipping to a low of $124.6 million Top centres over the past three years in 2014, gross legal aid payments have risen 2017 over the past four years to $143.4 million Kaikohe 1st $290,875.60 in the year to 30 June 2017. Looking back over the seven years to Whakatane 2nd $270,322.84 2011 – just before the major changes to Otaki 3rd $264,074.56 legal aid eligibility and provider status were made – some firm trends have Whanganui 4th $225,485.38 emerged. The average payment per Rotorua 5th $212,580.91 provider has steadily increased after Gisborne 6th $205,434.38 bottoming out in the 2012/13 year. The median (middle) payment per provider has risen noticeably in the last three 2016 years. The number of legal aid providers Kaikohe 1st $327,990.85 who have received a gross payment has Otaki 2nd $313,790.40 fallen each year. The information released by the Ministry Whanganui 3rd $222,934.84 of Justice shows the gross amount paid Gisborne 4th $203,605.73 to listed providers exclusive of GST. It Whakatane 5th $196,862.00 includes fees claimed on behalf of other listed providers, plus disbursements for Rotorua 8th $181,546.81 general office costs, travel costs, and special disbursements – which include fees for agents, expert witnesses, forensic tests, 2015 interpreters and special reports (such as Kaikohe 1st $291,906.76 medical and valuation reports). Otaki 2nd $276,114.56 Major changes to the legal aid system began in 2011, when the Public Defence Whanganui 3rd $195,960.51 Service was expanded to take criminal legal Whakatane 4th $188,654.81 aid work and fixed fees were introduced. Rotorua 5th $181,220.29 Controls on legal aid in Family Court proceedings were introduced in 2012. The Gisborne 6th $176,417.38 impact of the changes can be seen in the table: Gross legal aid payments, year to 30 June

Year Payments Providers Average Median There is, of course, a huge variation in the amounts paid to a listed provider – and the total payments 2011 $154,090,071.28 1488 $103,555.16 $62,257.61 at the top and lower end are similar but with a big 2012 $148,306,784.40 1465 $101,233.30 $64,152.27 disparity in recipient numbers. In the latest year, six 2013 $130,258,884.90 1311 $99,358.42 $63,132.73 providers (0.5% of the total) received over $1 million 2014 $124,580,223.80 1240 $100,467.92 $63,064.61 in gross payments (5.5% of the total payments). Just over one-third of all providers – 34.5% – received gross 2015 $130,215,953.30 1224 $106,385.58 $68,147.22 payments of less than $50,000 (5.7% of the total gross 2016 $134,759,778.10 1210 $111,371.72 $73,528.42 payments made). 2017 $143,379,904.64 1193 $120,184.33 $83,152.80

54 SPOTLIGHT ON LEGAL AID

Gross legal aid payments, year to 30 June 2017

Gross payments Providers % Providers Total Value % Total Value $1 million plus 6 0.5% $7,816,151.33 5.5% $500,000 to $999,999 25 2.1% $16,978,554.51 11.8% $200,000 to $499,999 140 11.7% $42,469,018.79 29.6% $100,000 to $199,999 335 28.1% $47,140,869.79 32.9% $50,000 to $99,999 276 23.1% $20,696,075.31 14.4% $30,000 to $49,999 120 10.2% $4,753,410.40 3.3% $10,000 to $29,999 146 12.2% $2,931,252.52 2.0% $1 to $9,999 145 12.2% $594,571.98 0.4%

Location The wide variations continue when it comes to the location of providers who received payments. A number of centres had a high average and median gross payment in the latest year, with all being high on the list in the two previous years. Kaikohe legal aid providers had the highest average gross payments over all three years. Centres with more than two providers are included in the table: Highest average gross legal aid payments by centre, year to 30 June 2017

Centre Total Providers Average Median Kaikohe $1,745,253.59 6 $290,875.60 $287,135.88 Whakatane $1,892,259.89 7 $270,322.84 $171,460.91 Otaki $792,223.69 3 $264,074.56 $110,872.62 Whanganui $3,156,795.38 14 $225,485.38 $137,185.87 Rotorua $6,590,008.14 31 $212,580.91 $137,212.17 Gisborne $2,876,081.28 14 $205,434.38 $117,133.69 Paraparaumu $586,361.37 3 $195,453.79 $154,434.01 Lower Hutt $3,393,445.73 18 $188,524.76 $118,176.33 Pukekohe $723,481.68 4 $180,870.42 $142,419.80 Palmerston North $3,060,080.01 17 $180,004.71 $143,895.78

The number of listed providers who received a gross payment has dropped by 19.8% in the period from 2011 to 2017. The number of providers in most centres receiving a payment has fallen, although among the main centres there have been increases in Gisborne (up 16.7%), Invercargill (up 20.0%), New Plymouth (up 31.6%) and Whangarei (up 10.0%). Providers receiving gross payments, year to 30 June

Centre 2011 2017 Change % Total 2017 Auckland 518 411 (20.7%) 34.5% Christchurch 135 103 (23.7%) 8.6% Wellington 100 74 (26.0%) 6.2% Hamilton 95 72 (24.2%) 6.0% Dunedin 63 45 (28.6%) 3.8% Tauranga 46 43 (6.5%) 3.6% Whangarei 30 33 10.0% 2.6% Rotorua 37 31 (16.2%) 2.6% Nelson 29 28 (3.4%) 2.3% Napier 29 18 (37.9%) 1.5% All Others 406 335 (17.5%) 28.1% Total 1488 1193 (19.8%) 100.0%

55 ACCESS TO JUSTICE

ACCESS TO JUSTICE New Zealand Criminal Cases Review Commission The Panacea to Miscarriages of Justice?

BY BRIDGET IRVINE

Zealand’s post-appeal pathway. But to the appeals court to determine the final The new Labour-led Government has blindly accept that a statutory body, akin outcome, but only if there is a “real possi- wasted no time in responding to calls to the Criminal Cases Review Commission bility that the conviction, verdict, finding for an independent statutory body to (CCRC) for England, Wales, and Northern or sentence would not be upheld were the investigate wrongful convictions. In fact, Ireland, will be the panacea is a mistake. reference to be made” (s 13(1)(a) Criminal the very day the government was sworn The CCRC is not without criticism. These Appeal Act 1995 (UK). In practice, this into office, Justice Minister Andrew Little criticisms must be considered, and robustly ‘real possibility’ test means that the CCRC stated on RNZ’s Morning Report that the debated, to ensure that any new post-appeal investigate cases through the same lens as Government was “committed to establish- pathway does not simply pay lip service to the Court of Appeal, focusing on whether ing a criminal cases review commission redressing miscarriages of justice. an applicant’s conviction is ‘legally safe’, to deal with miscarriages of justice”. We The CCRC was originally established in as opposed to ‘factually wrong’. commend the new Government for engag- 1997 as an independent public body with In any post-appeal pathway, cases will ing in the discussion. Any policy dialogue the statutory responsibility of investigating be referred back to the appellate courts about miscarriages of justice is positive – it alleged miscarriages of justice in England, for final determination (the alternative, a raises public awareness of the issue, and Wales, and Northern Ireland. Once the pardon, is rarely exercised). The form of, puts worthy cases at the forefront of New normal legal appeals process has been and need for, a statutory-mandated referral Zealanders’ minds. exhausted, the CCRC can investigate crimi- process in New Zealand should therefore The Government’s intention to introduce nal cases and refer unsafe convictions back be explicitly debated. At present, the CCRC a criminal cases review commission has to the Court of Appeal. The CCRC has con- cannot (and the RPM will not) refer cases been met with considerable support, both sidered over 21,780 cases, and referred 634 where the applicant is asking that an error from the public and from the legal and cases (2.91%) back to the appeals court. Of by the appellate court be rectified. Without academic communities. This high level of these referred cases, about 66% succeeded. some change to the referral process, we risk support is unsurprising given that there At its inception, the CCRC was heralded implementing a new post-appeal pathway has always been some unease with the as a world-first. In fact, it was the envy of that will differ to the RPM in name only. current post-appeal pathway – the Royal the international community who investi- Therefore, the first question New Zealand Prerogative of Mercy (RPM). gate wrongful convictions. The CCRC was should consider is whether it would be The RPM is exercised on advice of the widely perceived to be a state-sponsored appropriate to expand the scope of referrals Minister of Justice and, as such, there innocence project – an independent to appellate errors. remains real concern about the separation body, but with deeper pockets, that had Why should we expand the scope of the of powers between the executive and the wide-ranging powers to identify, investi- referral process to appellate errors? At pres- judiciary. One commonly held perception gate, and rectify miscarriages of justice. ent, the high legal threshold to overturn is that other political drivers – for example, But 20 years on, this perception has not a conviction – typically, locating credible satisfying the public’s perception about an been borne out. Critics claim that one evidence not available at the time of trial – applicant’s guilt – might interfere with the significant barrier to the CCRC’s efficacy is can prevent meritorious cases getting out process. To date, the government has not the limited scope of its statutory-mandated of the starting blocks. In some cases, the taken steps to address this unease; the RPM referral process. [For example, C Ronald Huff and appellate courts have already considered investigation process is not transparent, Michael Naughton “Wrongful Convictions Reforms in the relevant evidence, and dismissed it; and it isn’t clear whether the final decision the United States and the United Kingdom: Taking often deferring to the importance of the is open to scrutiny via judicial review. Stock” in Emil W. Plywaczewski and Ewa M. Guzik- jury as the fact finder. The RPM currently There is little doubt that the RPM is Makaruk (eds) Current Problems of the Penal Law offers no protection to these alleged mis- inadequate, and so the time has certainly and Criminology (Wydawnictwo C. H. Beck, Warszawa, carriages of justice. If New Zealand was to come for a frank discussion about New 2017) at 482]. The CCRC refers cases back to simply adopt the CCRC’s ‘real possibility’

56 ACCESS TO JUSTICE

test, this would not change. concerned that the public will view a New confidence in a CCRC does not cause these Without expanding the scope for referral, Zealand CCRC as a wholesale solution; a campaigners to disappear. some miscarriages of justice will never be perception the government is unlikely Finally, we cannot lose sight of the fact rectified. Therefore, a New Zealand CCRC to dissuade. Comments such as “clearly, that a New Zealand CCRC can only serve needs to be able to afford some leeway the existence of the UK commission has as the ambulance at the bottom of the to exceptional cases. That is, some cases ensured that miscarriages of justice have cliff. In that respect, we must continue to should be referred irrespective of whether been put right” (“Criminal Cases Review construct the fence. Across the globe, the the appellate court had already considered Commission could strengthen legal factors that contribute to miscarriages of the evidence. This proposed lower threshold system” New Zealand Herald (26 October justice are remarkably similar. Many of these would allow for increased scrutiny on appel- 2017) have already emerged in the media. factors – eyewitness errors, flawed forensic late errors, but it would come with a hefty Why does it matter what the public science, and false confessions, for exam- price tag. New Zealand is a small country, believe? The answer is that members ple – lend themselves to evidence-based so we don’t have the same economies of of the public have long been crucial in reform around how evidence is collected, scale observed with the CCRC. Post-appeal uncovering miscarriages of justice. There interpreted, and presented to fact-finders. investigations of this type are expensive. are countless examples of cases where Such reform would go a considerable way As a country, we will have to decide how an injustice only came to light due to the towards reducing the workload of any CCRC. much we are prepared to invest in order tireless efforts of individual campaigners. We commend the Government for to have an effective post-appeal pathway. If the public perceive that a New Zealand acknowledging that New Zealand’s While we urge caution in moving CCRC is the complete package, there is a post-appeal pathways are inadequate. But towards a CCRC, our critics might real risk that these campaigners will fade simply replacing the RPM with a CCRC is say, “it has to be better than what we into the background. Yet the success of a not a comprehensive solution to miscar- have”. And that is almost certainly true. CCRC here will undoubtedly continue to riages of justice. Now that the door is open, Transplantation of the positive aspects of require sophisticated input that is often we urge the Government to pause, take the CCRC – transparency in the post-ap- beyond the skill-level of the applicant; stock, and ensure that any new post-appeal peal process, a high level of resourcing, that has certainly been true of the CCRC. pathway we do adopt can actually achieve and wide-ranging investigative powers Competent legal assistance will continue to what it sets out to do. – into a New Zealand CCRC would be an be instrumental in directing investigators improvement on the RPM. But we cannot towards meritorious claims, particularly as Dr Bridget Irvine  [email protected]. lose sight of the fact that a rudimentary a CCRC’s financial resources are unlikely to ac.nz is Research Co-ordinator for the model could have unintended nega- extend to extensive ‘fishing expeditions’ in Innocence Project New Zealand at the tive consequences. We are particularly every claim. It is important that misplaced University of Otago

ACCESS TO JUSTICE Judge Fred McElrea Restorative Justice online collection expands for non-commercial use only and may be downloaded in PDF format. Napier City Libraries has launched an expanded online Fred McElrea graduated LLM and MA with first class honours in collection of the writings of retired District Court Judge Fred Philosophy from Otago University and also obtained an LLM from McElrea on restorative justice. London and a DipCrim from Cambridge University. After practising The Judge McElrea Restorative Justice Collection online site (at in civil litigation for 18 years in Auckland he was appointed to the napierlibrary.co.nz, under Collections) was launched with over 80 District Court in 1988 until his retirement in 2013. He was also a articles, book chapters, select committee submissions, interviews Judge of the Youth Court (1990 to 2001) and an Alternate Judge and speech notes by Mr McElrea which date from 1992. of the Environment Court (2001 to 2013). The purpose of the collection is to gather all his work in one place Over his career he was a prominent advocate of New Zealand’s and make it as accessible, prominent, organised and reader and youth justice system and also of restorative justice more broadly, researcher-friendly as possible. The papers have been made available in New Zealand and internationally.

57 PRO-BONO

PRO-BONO Community mediation services pilot in South Auckland

BY CRAIG STEPHEN

The word going round about its new mediation service ▸ Wi Pere Mita, was all that was needed for a South Auckland community law Manager Māori centre to receive cases from the courts to work on. Legal Services The Community Legal Services South Trust launched its com- munity mediation services pilot in October. The trust is one of 24 community law centres around New Zealand, covering South Auckland and Franklin with eight lawyers and three administration staff. The pilot relies on pro bono work from registered mediators and lawyers. Its Manager Māori Legal Services, Wi Pere Mita, says the scheme was launched with the aim of working out issues for those on low incomes. “It’s an extension of our community legal services. We are not receiving any extra funding for it, but we feel there is a need for The pilot appears to be a first in New the service in our area, so the idea was we could try and meet Zealand. the gap in our services by providing the mediation service. And “We’re not aware of any other community given that we don’t have any extra funding for it, we are relying law centres offering community mediation on pro bono mediators to assist us with delivering the service.” services. Some of them do offer restorative Mr Mita says before the project got off the ground there were justice services but we are not aware of any constructive meetings with police and court staff. others offering mediation services so we “We would encourage some of our clients to use the service if appear to be the only one,” Mr Mita says. we feel it necessary but, we have also spoken to the local police, “We were only envisaging receiving the local council and other stakeholders and they’re happy to responses from mediators from within the provide referrals to the service. The police often deal with what Auckland region but we’ve actually had they call civil matters and they don’t have anywhere to send those expressions from mediators in Wellington, as matters, so if there are disputes that aren’t of a criminal nature far north as Kerikeri, and as far west as New then they are more than happy to refer it through our service. Plymouth. And they’re all willing to travel “The courts began referring matters here to Auckland to assist on a pro bono basis.” even before it was formally launched. If The trust covers South Auckland and they feel that it could be resolved through Franklin with outreach clinics in Otara, an alternative process they will refer it to We’re not aware Papakura, Manurewa, Manukau and us as well. of any other Pukekohe. “We’ve been quite lucky in that we’ve community law There are particular issues that it deals had really good responses so far, and the centres offering with given the socio-economic make-up experience of the mediators who have community of the area it covers. offered to work on a pro bono basis ranges mediation services. “We deal with a lot of immigration from commercial matters to grassroots Some of them do issues, as South Auckland is heavily pop- neighbourhood disputes to contract dis- offer restorative ulated with Pacific Islanders. We also do a putes and so on, so there’s a whole array justice services but lot of employment and family Court work,” of experience that has been offered to the we are not aware of Mr Mita says. service, which we’re really pleased about. any others offering “More than half of our service users are And that means that we can extend the mediation services Pacific Islanders, the next largest group service to beyond what we were initially so we appear to be that come to us are Māori, and we have intending for it to cover.” the only one mix of everyone else.”

58 COMPLAINTS

COMPLAINTS

Lawyers Complaints Service

and followed the directive in Guideline 2.55, of the Lawyers and Conveyancers Act Lawyers and which provides: (Conveyancing Practitioners: Conduct and “A lawyer should not seek, accept Client Care) Rules 2008, B said. Conveyancers need or need to rely on an undertaking To suggest a lawyer was acting “unpro- from a non-lawyer. The paramount fessionally” and “probably unlawfully” was to co-operate, concern for the lawyer must be the a serious allegation, LM said. protection of the interests of the client Standards committee decision says LCRO concerned. Undertakings given by lawyers can be and are enforced by a The standards committee considered the It is incumbent on lawyers and con- Court under its inherent jurisdiction email was a confidential communication veyancers to carry out their duties to their arising from the fact that lawyers are between HR and her client, containing a clients in a “spirit of co-operation”. officers of the Court. Conveyancing full and frank discussion of aspects of the This was stated by the Legal Complaints practitioners are not officers of the legal services provided. Review Officer (LCRO) in upholding the Court and their undertakings cannot “As such,” the committee said, “the email decision of the New Zealand Society of be enforced by the Court under its communication complained of needs Conveyancers (NZSoC) Standards Commit- inherent jurisdiction. An undertaking protection on a similar basis as the legal tee to take no further action on a complaint given by a non-lawyer may not be privilege afforded to communications by a lawyer about a conveyancer (LM Law enforceable in law.” between a lawyer and their client in similar v HR LCRO 212/2016 (22 September 2017). HR then suggested that LM settle by appoint- circumstances.” “This review arises out of the ongoing ing an agent near her offices to attend a In its review decision, the LCRO noted (and unresolved) issue of the manner in personal settlement – by handing over a that the definition of a “legal adviser” in which lawyers and conveyancers are to bank cheque and contemporaneous release the Evidence Act 2006 did not include deal with each other,” the LCRO said. of the e-dealing. LM considered that HR conveyancing practitioners. “Applying The lawyer, LM, acted for the buyer of a should bear the costs of appointing the agent. the privilege (ss 53 to 67) provision of the residential property and the conveyancer, Extensive communication took place Evidence Act, it was clear [HR’s] email was HR, acted for the seller. A disagreement between the parties, with each party not a privileged communication. arose about the manner of settlement. referring to the advice and views of their The communication was intended solely respective professional bodies – the PLS for the benefit of HR’s client and did not Disagreement over settlement and the NZSoC. The transaction was settled “cross the line of impropriety” to such an Paragraph 2.56 of the New Zealand Law on terms agreed between LM and HR. extent that a disciplinary response was Society’s Property Law Section (PLS) warranted, the standards committee found. Settlement Guidelines states: Complaint against The committee concluded its decision “Where the conveyancing practitioner conveyancer by issuing a warning to conveyancers that acts for the vendor and the lawyer LM’s complaint to the NZSoC arose in rela- they “should always exercise professional acts for purchaser, the instruments tion to an email HR wrote to her client after restraint in their communications with should be released into the control settlement. The property seller forwarded clients to ensure the good standing of the of the purchaser before the funds are the email to the buyer, who forwarded it profession is maintained”. paid. The conveyancing practitioner is to LM. protected by the lawyer’s undertaking, LM raised a series of issues in his com- LCRO’s decision which he or she could enforce.” plaint, including: The LCRO found that HR’s email did not say HR followed the opinion of the NZSoC that • HR’s email asserted that his firm had that LM or his firm was acting “unprofes- “Guideline 2.56 is unlawful” and declined asked HR to breach her obligations to the sionally” or “probably unlawfully”. What to settle on the basis contemplated by the seller and their bank, and that LM’s firm she said was that LM had asked her to act Guideline. Instead, she asked LM to remit had made no such request; and in a particular way. Whether she complied the settlement monies to her against her • HR’s email alleged that LM’s firm had or not was a decision for her to make. undertaking to then release the e-dealing asked HR to do something “unprofes- “In the email, [HR] then refers to the in the same manner as the Settlement sional and probably unlawful” and there fact that [LM] is adopting a solution rec- Guidelines provide for when lawyers are was no basis to this allegation. ommended by NZLS which, she says, is acting for the parties. In making an allegation against LM’s not accepted by NZSoC,” the LCRO noted. LM refused to accept HR’s undertaking firm, HR had breached rules 6 and 29 The difference of opinion between the

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COMPLAINTS

NZLS PLS and the NZSoC “is of limited rel- password four times. evance to clients of either a conveyancing Seyton accepted that he breached the Conduct failed practitioner or lawyer. digital certificate terms and that this “What is important is that clients are occurred four times, the committee said. competent, not disadvantaged, and both profession- He accepted that this breached rule als have a duty to act in the client’s best 11.4 of the Lawyers and Conveyancers ethical and interests. Act (Lawyers: Conduct and Client Care) “This must necessarily involve acting Rules 2008, and that it was unsatisfactory responsible with some pragmatism and accommoda- conduct. tion, and a recognition that the conveyanc- Rule 11.4 states: “A lawyer must take all behaviour test ing profession was established when the reasonable steps to prevent any person Lawyers and Conveyancers Act came into perpetrating a crime or fraud through [Names used in this article are fictitious] force on 1 August 2008,” the LCRO said. the lawyer’s practice. This includes taking “It is somewhat disappointing that the reasonable steps to ensure the security A lawyer, Lennox, has been censured parties to this complaint find themselves in of and access to electronic systems and for breaching his fiduciary duties to a client this position, largely through the inability passwords.” both as her lawyer and as her attorney. of their respective bodies to resolve those A footnote to the rule says: “The protec- Lennox’s conduct was “derelict to such issues. tion of passwords and systems will include a degree” that it satisfied the test of what “Each client has been detrimentally the protection of digital certificates and was expected of “competent, ethical and affected by events and that is not in the associated passwords, and passwords, responsible practitioners,” the lawyers stand- interests of either party or their clients.” usernames, and personal identification ards committee said. It found the lawyer The LCRO also ordered that an numbers relating to electronic banking.” had engaged in unsatisfactory conduct. anonymised version of the decision be “In attempted mitigation, [Seyton] Lennox acted in various matters for a published to members of the NZLS and advised that it was a trusted staff member client, Mrs C, over a number of years, includ- the NZSoC. who he allowed to use the certificate, a ing assisting her in making her final will. person [in whom] he had considerable Mrs C’s will left nothing to her children Comment from the Property confidence. He said at the time he did and the bulk of her estate to her former Law Section of the New not think there was any risk involved and son-in-law, Mr Y. Zealand Law Society: he did not realise the seriousness of his Mrs B and Mrs A are Mrs C’s only chil- “This is an ongoing issue and of concern breach,” the committee said. dren. On discovering they had received no to the NZLS Property Law Section. The However, the committee said it consid- benefit from their mother’s estate, Mrs B Property Law Section is actively involved ered his regret or apology was “hollow”, and Mrs A contested the will in the Family in reaching a constructive resolution of because despite having been reprimanded Court. They received what was left of their all issues between lawyers and licensed by the Registrar-General after each mother’s estate to divide between them. conveyancers.” instance, he breached the rule four times. The sisters then complained to the Law The conduct was at the “higher end” of Society. The nub of their complaint was the scale of unsatisfactory conduct, the that Lennox had failed to take appropriate Censure and committee said. steps to safeguard Mrs C’s property and As stated on Land Information New had caused significant losses to her and to fine for sharing Zealand’s website: “The security of the her estate. Their complaint relied on Mrs Landonline system is vital. Licences and C having lacked legal capacity to make Landonline digital certificates are two of the measures decisions and properly instruct Lennox. we have in place to ensure the integrity of The committee considered that: password New Zealand’s land records.” • There was sufficient evidence to confirm In setting the fine at $8,000, the commit- a general deterioration in Mrs C’s over- tee took account of Seyton’s disciplinary all health, and that should have been [Names used in this article are fictitious] history – two previous findings of unsat- apparent to Lennox, A lawyer has been censured and fined isfactory conduct. • Lennox should have taken into account $8,000 by a lawyers standards committee As well as the censure and fine, Seyton the general lack of consistency and for sharing his Landonline digital certificate was ordered to pay $1,000 costs. The prudence in Mrs C’s instructions and password. committee also decided to give written decision-making from then on, and The Registrar-General of Land asked the notice of its determination to the Registrar- should have been alert to the need to Lawyers Complaints Service to investigate General of Land and directed that the NZLS take additional steps to verify her capac- the lawyer, Seyton, after he shared the publish the facts of the matter. ity and secure her interests,

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• Lennox should have obtained medical Accordingly, no such order was available deceased. Subsequently, the proceedings evidence as to Mrs C’s capacity, before to the Committee. brought by Mr E were resolved by consent. allowing her to commit herself to On name publication, the LCRO said that Mr D said that he had tried to get infor- arrangements that did not adequately the education functions of publication – for mation and updates from Gadshill on a safeguard her property interests, the public and the profession – could be number of occasions since the October • Lennox had failed to properly consult met by the committee’s decision, or the 2007 meeting to no avail. He said he was with Mrs B over his exercise of powers LCRO decision, being published without upset that he was not made aware that under the enduring power of attorney Lennox being identified. probate for the will in which he was sole over property under which Mrs C beneficiary had been recalled and the appointed Lennox and Mrs B, estate distributed to the family. • By making a payment of $40,000 to Mr Y Failed to complete Gadshill’s failure to act on Mr D’s instruc- without first obtaining security, Lennox tions to file a statement of defence, or his was in breach of his fiduciary obligations a retainer failure to alert him to the consequences to Mrs C, both as her lawyer and as her of failing to take steps in the matter, was attorney, and “serious”, the committee said. [Names used in this article are fictitious] • Relinquishing the protection a registered “Likewise his failure to disclose to his caveat afforded to Mrs C’s investment A lawyer who failed to complete a client all relevant information he had was not in her best interests. retainer and comply with directions from a received from the court and plaintiff ’s As well as the censure, the committee court has been censured and fined $2,000 counsel and solicitor, which information ordered Lennox to pay the sisters $5,000 by a lawyers standards committee. would have enabled Mr [D] to make compensation, ordered that written notice This fine is the maximum provided in the informed decisions about his involvement of its decision be given to the Registrar- Law Practitioners Act 1982, which covers in the proceedings, is a serious breach of General of Land, and ordered publication penalties for conduct before 1 August 2008. the duty owed to his client.” of its decision, including Lennox’s name. The lawyer, Gadshill, acted for a Mr D Gadshill also had a duty to the court to Lennox applied for a review of the from January 2007 in relation to an interest respond, in one form or another, to the decision to the Legal Complaints Review in the estate of his former partner. Probate minute the court provided to him. Officer (LCRO) in respect of the publication had been obtained and Mr D was named Gadshill’s conduct fell short of the stand- and compensation orders. Lennox also as the sole beneficiary. ard of competence and diligence a member applied for a review of the decision find- At the time of her death, Mr D’s former of the public was entitled to expect of a ing him guilty of unsatisfactory conduct partner was engaged to be married to reasonably competent lawyer, and was and imposing a censure, but submitted another man, Mr E. In late 2006, Mr E unprofessional, the committee said. the application outside the statutory applied to the Family Court for orders Gadshill was in breach of his duty to timeframe. The LCRO therefore had no under The Family Protection Act 1955 and act competently and in a timely manner jurisdiction to review the unsatisfactory The Law Reform (Testamentary Promises) consistent with the terms of his retainer conduct and censure decision. Act 1949. and duty to take reasonable care. In LCRO 235/2014, the LCRO reversed The deceased’s mother and siblings The committee found unsatisfactory three orders made by the standards challenged the will’s validity by applying conduct on Gadshill’s part. As well as the committee. in July 2007 to the High Court for probate censure and fine, Gadshill was ordered to “The disciplinary processes under the to be recalled. pay $2,000 costs. [Lawyers and Conveyancers] Act [2006] Mr D met with Gadshill in October 2007, (LCA) are not well suited to the making of and instructed the lawyer how he wished orders where, as here, there are potentially to respond in his statement of defence. Failed to respond legitimate arguments around causation,” Having heard nothing further from the LCRO said. Gadshill, Mr D was under the impression to client in “Where there may be some doubt, as the statement had been filed. there is in the present case, the civil juris- The family was subsequently successful timely manner diction is better suited to testing conflicts in having probate recalled by the High of evidence.” The committee’s decision on Court. The judge noted that Mr D had [Names used in this article are fictitious] compensation was therefore reversed. not filed a statement of defence and that The events happened before imple- neither he nor any counsel appeared. Mr A lawyer who failed to respond to mentation of the LCA, and the Law D therefore no longer had standing as a his client’s enquiries in a timely manner Practitioners Act 1982 did not contain a beneficiary, the High Court determined. has been reprimanded and fined $1,000 by provision that enabled notification to the Probate was granted to an earlier will a lawyers standards committee. Registrar-General of Land, the LCRO said. that predated Mr D’s relationship with the The lawyer, Woodville, was acting on

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COMPLAINTS

immigration issues for a client, Mr J, and not inform Mr J until approximately three had clearly told the New Zealand Law the client’s partner, Ms K. months later. Society that she would pay the costs when Woodville applied to Immigration New “Mr [J] was left labouring under the false she had been paid outstanding legal fees Zealand (INZ) for a visa under s 61 of the impression that he may have a chance of by the complainant. Immigration Act 2009 for Mr J and Ms K, success when, in fact, he did not,” the Following that, Berkeley paid the sum who were in New Zealand unlawfully. This committee said. outstanding costs in May 2016. application was declined. “Further, the extent of Woodville’s delay Berkeley’s continued failure for 13 Woodville then applied for a second time, also resulted in time lost during which months to pay the costs ordered against and this application was also declined. Mr [J] could have been exploring other her, and her insistence she would only Mr J claimed that Woodville informed options.” pay when the complainant paid her fees him that another application would be As well as the reprimand and fine, “is conduct which is in defiance of the made to both the Minister of Immigration Woodville was ordered to pay $950 costs. determination made against her,” the and the Ombudsman. However, Woodville committee said. did not apply to the minister nor the “The primary purpose of costs orders Ombudsman, and instead lodged a com- Failure to pay under the [Lawyers and Conveyancers] Act plaint with INZ’s Deputy Secretary. [2006] is to defray the costs of administer- Mr J claimed he sent Woodville numer- costs results ing complaints and disciplinary provisions ous requests for information and updates of the legislation, which otherwise fall on but never received any response. in censure all lawyers.” Mr J subsequently met with Woodville, Costs ordered by a standards committee who informed him that INZ’s Deputy should be paid “within a reasonable time or [Names used in this article are fictitious] Secretary had declined to consider the an arrangement acceptable to NZLS made complaint. On receiving a copy of the A lawyer has been censured for fail- for payment.” Deputy Secretary’s letter Mr J noticed it ing to pay a lawyers standards committee’s Berkeley’s failure to do either was was dated approximately three months $1,500 costs order. unsatisfactory conduct, the committee earlier. In December 2012, the standards found. As well as imposing the censure, Mr J subsequently wrote to Woodville committee made a determination on a the committee ordered Berkeley to pay requesting his file and a refund, both of complaint against the lawyer, Berkeley. $1,000 costs. which Woodville provided. That determination found unsatisfactory The committee said that: conduct by Berkeley. The committee made • Woodville failed to respond to enquiries a penalty determination in March 2013. Lawyer’s conflict from Mr J is a timely manner, breaching Both parties sought a review of the rule 3.2 of the Lawyers and Conveyancers decisions. The complainant’s review was of interest Act (Lawyers: Conduct and Client Care) unsuccessful. On Berkeley’s application, Rules 2008 (RCCC); and the Legal Complaints Review Officer [Names used in this article are fictitious] • Woodville failed to inform Mr J of any reversed the penalty determination and material and unexpected delays in Mr J’s directed the committee to reconsider the A lawyer has been censured for advis- matter, breaching rule 3.3 of the RCCC. penalty. ing clients at the same time as lending That constituted unsatisfactory conduct, In May 2015, the committee decided them funds. the committee found. to reprimand Berkeley for unsatisfactory The lawyer’s conduct relating to the “While [Woodville] maintained through- conduct, and ordered Berkeley to reduce lending “constitutes unsatisfactory con- out his correspondence with the Lawyers her fees and pay $1,500 costs. duct,” the Legal Complaints Review Officer Complaints Service that he had kept Mr [J] Between July 2015 and February 2016 (LCRO) said. informed at all times, this does not neces- there was a series of correspondence The lawyer, Tressell, was a trustee of the sary mean he responded to enquiries from between the Law Society and Berkeley H Family Trust. Mr and Mrs H were the Mr [J] in a timely manner as required under relating to the fact that none of the $1,500 other two trustees. rule 3.2 of the RCCC,” the committee said. had been paid and that Berkeley had not The H Family Trust was a shareholder of “In fact, it was clear from the materials made any indication about beginning to a building company and Mrs H was its sole provided that numerous enquiries from Mr make repayments of the costs. director. The company was incorporated [J] went unanswered for significant periods The matter was then referred to another to operate as a building business. of time or were not responded to at all.” standards committee, which began an own The company bought a section on which It was “unacceptable” for Woodville to motion investigation. it proposed to build a “spec house”, and be aware that INZ’s Deputy Secretary had Berkeley said that there was no time- Tressell arranged a series of advances declined to consider Mr J’s complaint and frame in the costs decision and that she through his firm’s nominee company,

62 COMPLAINTS

and two by Tressell’s own family trust. the company, the LCRO said. In April 2015, the client contacted The advances related to both the section As well as confirming the committee’s Coleville asking what steps she had taken purchase and to carry out building work. determination, the LCRO also modified it with MSD. The client then contacted Mrs H complained about a number of by making an additional finding of unsat- Coleville’s supervising lawyer, Oswald, aspects of Tressell’s conduct. She said that isfactory conduct in respect of conduct because she was dissatisfied with the lack he had a “conflict of interest” by lending which occurred prior to the Lawyers and of response she had received from Coleville his personal funds to the H Family Trust. Conveyancers Act 2006 and imposed a and with the lawyer’s communication. A lawyers standards committee censure on Tressell. Oswald took over management of the expressed concerns about Tressell’s fail- “The Court of Appeal has described a file, and the lawyers standards committee ure to ensure that Mr and Mrs H received censure of lawyers as a ‘rebuke’ to be taken said that “it appears no further steps were independent advice and took note of seriously. That is what is called for in this undertaken by him until June 2016”. the personal guarantees that they were situation,” the LCRO said. In the meantime, in May 2015, Coleville required to provide. “It is a censure on behalf of the legal contacted Work and Income and requested The committee made a finding of profession that [Tressell], as a senior disclosure of the information regarding unsatisfactory conduct, ordered Tressell member of the profession, has failed to overpayment. MSD provided disclosure to repay Mr and Mrs H $2,626 and pay $605 recognise he was compromising his fidu- in late June 2015. costs. Tressell then sought a review of the ciary obligations to his clients, jointly and On 11 July 2016, MSD received an appli- standards committee decision. severally, by not remaining a disinterested cation for a review of its decision. In the The LCRO said that the standards com- and objective advisor.” application Oswald advised that the delay mittee decision did not directly address the The LCRO also ordered Tressell to pay was not any fault of the client, but solely question of whether Tressell had a conflict $1,200 costs. the responsibility of her legal advisors. of interest by lending personal funds to The application asked that, under the the H Family Trust. In doing so, the LCRO circumstances, consideration should be said that Tressell had become a lender to Tardy lawyers given to allowing the client’s application himself as a trustee of the H Family Trust. to proceed out of time. “Whilst in New Zealand it is accepted censured MSD responded on 6 September 2016 that a lawyer may act for a lender and a declining the review and giving reasons borrower in the same transaction, that over delayed for its decision. acceptance cannot have any application In response to the allegations she had where the lawyer is the lender of the application failed to inform the client of progress and money to the client,” the LCRO said. failed to act in a timely manner, Coleville Rule 5.4.3 of the Lawyers and Convey- said she had not received the required [Names used in this article are fictitious] ancers Act (Lawyers: Conduct and Client information from the client, that she was Care) Rules 2008 is expressed as an “abso- Two lawyers have been censured for very busy and it was not up to her to chase lute prohibition” against continuing to act failing to act in a timely manner for the clients. for a client in these circumstances, the same client. The committee noted that it was “clear” LCRO said. “That prohibition extends to A lawyers standards committee deter- that Coleville did not take note of the time- any transaction in which the lawyer has mined that this failure by each of the frame for the review, and that the delay an interest. That would include acting lawyers was unsatisfactory conduct. was of “significant length”. in respect of any transaction which The client contacted the first lawyer, Coleville “compounded this failure to would have resulted in repayment of any Coleville, in December 2014 about a debt act in a timely manner by advising [the advances made by Tressell or his trust and of $16,200 owed to the Ministry of Social client] that it was not up to her to chase advising the company in respect of any Development (MSD) relating to overpay- her clients,” the committee said. matter which would have affected the ment of accommodation supplement and After Oswald took over the file from company’s financial position.” temporary additional support. Coleville, he had two opportunities to Tressell’s role as an independent adviser The client asked Coleville to ascertain file an application for review but failed “became compromised” when he advanced why the debt had been established and to do so. funds through his firm’s nominee company gain information from Work and Income The committee said Oswald “has to the building company, and obtained to that effect. acknowledged that he failed to note the guarantees from Mr and Mrs H and the MSD had advised the client on 24 dates when documentation needed to be H Family Trust, secured over trust assets. November 2014 that she could apply for filed and has accepted that he was at fault”. Mrs H was entitled to expect and receive a review of its decision. The application As well as censuring each lawyer, the objective advice from Tressell. That was had to be made within three months (by committee also ordered each to pay $500 impossible when he became a lender to 24 February 2015). costs.

63 FOCUS ON · NEW PLYMOUTH

FOCUS ON NEW PLYMOUTH Focus on New Plymouth BY KATE GEENTY

Garry Anderson moved from Wellington to New Plymouth in 2004, giving up his role as a principal at Chapman Tripp in Wellington, where he was doing a lot of structured finance work. He says the move to New Plymouth, where he is a partner at Auld Brewer Mazengarb & McEwen, has enabled him to continue to do quality corporate work, but in an environment where he could also enjoy more downtime. “I’m not going to say the quality of all the work is exactly the same, but there is still good quality, challenging work, for good, interesting and reasonable clients. I was not coming here to fill in forms and do house conveyancing.” He said while it wasn’t unusual to be in the office until midnight in Wellington, that’s not the case in New Plymouth. “Up here, that level of commitment is just not required anywhere near as often. You’re still working hard, but it’s not at that level. You absolutely have a life outside of work.” Lawyers need to tap into more than just their book smarts when operating outside the major cities, says Mr Anderson. “It’s the soft skills, the empathy, the emotional intelligence aspect, that are really important for people when they have a holistic, whole- of-life relationship with their clients. It’s not just transactional based, it’s people you will then see on the street, your kids might be friends at school, LAWYERS PRACTISING IN NEW PLYMOUTH they’re not just people who come in, you BY GENDER AND YEAR OF ADMISSION do a transaction and you never see them again. It’s an intimate environment.” 18 A changing city Women 17 16 Linda Wilkinson, a director at Billings, Men moved to New Plymouth 34 years ago and says the city has changed hugely over the years. “When I first came here in the early 7 1980s, I think it was still quite parochial. Now I think it’s a fabulous place to live. There is just so much on offer.” 0 58 She says there is plenty of interesting 1968– 1979– 1990– 2001– 2012– Total work on offer. “We have a lot of dairy and 1978 1989 2000 2011 2017 oil and gas, and if one industry isn’t doing 55 well then the other usually is.” The entrepreneurial spirit of the region also leads to interesting work, Ms 6 Wilkinson says. “It’s that whole number 8 eight wire mentality. There are a lot of young businesses that are doing really 13 exciting and innovative things.” 14 14

64 Why aren’t more lawyers ▴ The city of New Plymouth has a popu- moving to town? lation of around 57,000, while the wider “I’m surprised there are not more people New Plymouth district has a population trying to escape from Auckland or of about 74,000. Wellington,” says Mr Anderson. He says concerns about not earning as ▸ Linda Wilkinson, a director at Billings. much in a regional city as in a major city might hold some people back. “I think it’s about resetting what’s satisfying. You don’t with that. If the best thing you want in need to earn as much in a smaller centre. If your five-year plan is to continue doing you reset those expectations then a whole what you’re doing now, then that’s fine. lot of things open up for you, otherwise you But if you’re wanting a different quality of do get trapped in the bigger cities, going life and in many respects, not all respects, ‘well I still need to earn all this money so still quality and challenging work that I can buy a house that costs millions and doesn’t involve you still being in the office is the size of a box’. It’s getting people to at midnight every night of the week, this reset what they want and how to get it.” option can be good – and not just New When Mr Anderson made the move, he Plymouth, there are many smaller cities and his wife sat down and talked about in New Zealand where you can do this.” how they wanted to be living in five years’ Linda Wilkinson believes one of the time. “That’s how we ended up here. We reasons it’s hard to attract lawyers to had a five-year plan and this was consistent town, is that they aren’t familiar with

65 FOCUS ON · NEW PLYMOUTH

House prices on the rise ▴ The mountain Average house values in the New Mt Taranaki forms the backdrop of the city. Although Plymouth district rose 6.8% to it is most commonly known as Mt Taranaki, the $429,953 in the year to October, mountain has two official names and is sometimes according to data from Quotable also referred to as Mt Egmont. It is part of the Value. Egmont National Park, which provides a network of walking tracks ranging from 15 minute wanders to New Plymouth. “Taranaki is more of the three-day Pouakai Circuit.  James Ball bnd a destination, you don’t pass through it on your way from Auckland to Plymouth and believes locals moving back home after Wellington, you have to detour. I studying or working elsewhere have something of an know that when people do come here, advantage when it comes to establishing themselves. they say they had no idea it was this “People do like the fact you’re from here. If your family good. It’s about getting them to come is well known it helps. I’ve found later in my career that here and have a really good look.” being from here has helped quite a lot. You find a lot Nicholsons Lawyers are currently of people you went to school with, or they knew your looking to recruit, and partner Nik family, end up living here as well.” Marinovich says the firm “hasn’t It’s not just been inundated with CVs”. While transactional World famous getting graduate lawyers is relatively based, it’s people With Mt Taranaki, Egmont National Park, the Govett- easy, he says it gets more difficult you will then see Brewster Art Gallery and the Len Lye Centre, New when it comes to intermediate and on the street, Plymouth and the wider Taranaki region have plenty senior lawyers. your kids might of attractions for visitors. So much so, that the travel However, he says there are plenty be friends at bible Lonely Planet ranked Taranaki second in a list of of good career opportunities for law- school, they’re the world’s top regions to visit in 2017. “There is lots yers in New Plymouth. “There are a not just people happening all the time. You’ve got that combination of lot of opportunities for lawyers here, who come in, you a world-class arts scene, a great café scene, an exciting not just at our firm, but if you look do a transaction and diverse festival programme and then you’ve got a around at other firms in the area you and you never tremendous outdoor feast – the Pouakai Crossing, which see there’s quite an aging population see them again. is the route around the cone of Mt Taranaki, you’ve got base in some of the partnerships.” It’s an intimate the Surf Highway, lovely beaches. I think we are truly Mr Marinovich grew up in New environment. blessed,” says Linda Wilkinson.

66 CYBERSECURITY · TECHNOLOGY

TECHNOLOGY CYBERSECURITY What to do if you’re hacked

BY DAMIAN FUNNELL

Turn It Off those who you know have been put Unfortunately, when it comes to protecting us As soon as you notice something at risk, or who are likely to have from ourselves, technology often lags behind the bad suspicious, turn your device off. It been put at risk. You could send an guys. might be too late and the damage email to your entire address list, We finally seem to have defeated spam and email may already be done, but turning but this is rarely necessary and viruses, but it took long enough. I still receive hundreds off your device could minimise the only serves to compound your of spam messages a day, but my spam filter is good harm. embarrassment. enough to catch almost all of them with very few false If you do send out an email, for positives. I very rarely have to tell clients that ‘your Get Professional Help goodness sakes remember to ‘blind message got stuck in my spam filter’ these days, which I can’t emphasise the importance copy’ everyone on the message. is good, as I don’t think anyone has ever believed it, of this enough. An experienced pro- I recently watched in horror as even when it was true. fessional can help you determine someone emailed his entire con- As technology has progressed, however, so too have how widespread the infiltration is, tacts list to tell them he had been the bad guys and now we face a much more serious what the effects have been and, hacked, including everyone on the and complex set of security challenges. most important, how to minimise ‘To’ list of the email. This resulted Security technology continues to develop too slowly to the damage. Talk to your IT pro- in a maelstrom of increasingly keep up with the bad guys and the bad guys never sleep. fessional now about their security angry replies as recipients hit Cyber criminals have become a lot smarter at com- credentials and capabilities and ‘Reply All’ – first to ask and joke bining technology (viruses, ransomware, etc) and make sure you have a clearly about the attack, then to ask to human engineering with staggering effect. The cost of defined process in place for how be removed from the email ‘list’, cybercrime is difficult to quantify, as much of it goes you will contact them in the event then to complain about the 150 unreported/undetected, but the global cost to business is of a security emergency. odd messages that we all received clearly in the hundreds of billions of dollars per annum. before the replies finally stopped. Forbes recently estimated that the costs of cybercrime Change Your Passwords I did receive spam from this poor quadruple every 4 years. Even if you don’t think your pass- chap when his email was hacked, Despite this, less than half of words have been compromised. but it went straight to my SPAM businesses, large and small, have Check out my earlier LawTalk col- folder, as it would have for most adequate security policies and pro- umns on how to make passwords recipients. If he hadn’t emailed tections in place. Almost all of the secure. me about it I would have never high-profile hacks that have made known. the headlines in recent years (the Clean Infected Systems Democratic National Convention, We will usually use two different, Plug the Holes Mossack Fonesca, Appleby and trusted security products to do a If, like more than half of businesses, numerous others) were the result deep scan and clean of infected it takes getting hacked to teach you of poor security controls. systems before we’ll consider them the importance of sound security In issues 904 and 905 of LawTalk to be ‘clean’. This is something you controls then at very least do we looked at how you can improve could do yourself, but engage the yourself the favour of learning the your firms’ security posture to better services of a pro if possible. lesson. I have seen businesses fail protect yourself from the bad guys. and grown adults cry as a result of Today we look at what to do if Tell Others security hacks and data loss. It’s ter- you’ve been ‘hacked’. If you have put others at risk then rible and almost always preventable. Prevention is, of course, better it should be pretty easy to figure than the cure, so my best advice is this out. The most common way for Damian Funnell  damian. to not get hacked in the first place. If malicious software to propagate is [email protected] you take sufficient care then it’s very via email, in which case you’ll find is a technologist and founder of unlikely that you’ll become a victim. offending messages in your sent Choice Technology, an IT serv ices That said, here’s what to do if you email. company, and  panaceahq.com, realised you’ve been compromised. My advice is to only contact a cloud software company.

67 TECHNOLOGY · RECENT DEVELOPMENTS

TECHNOLOGY RECENT DEVELOPMENTS Wagbot uses chatbot technology

BY ANGHARAD O’FLYNN

students are on Facebook daily, and the most common topics people want help with are In May 2017 Community Law about 80% of mothers of schoolchil- about bullying, wagging, and sex and relationships. Wellington and Hutt Valley, along dren do the same,” says Mr Bartlett. with tech developer Matthew These statistics come from a 2015 Communication and learning Bartlett, launched Wagbot: a natu- survey conducted by First Digital Wagbot learns how to communicate through a natural ral language interface, or ‘chatbot’, New Zealand; a media research language processing (NLP) model. designed to provide information analytics and strategy company. This model starts with a basic understanding of the on several school-related legal and Mr Bartlett says while there are English language. Over time it is gradually trained to societal subjects. security issues about the use of match the thousands of different ways people ask Mr Bartlett began developing social media, it has wide appeal. questions with the answers it has in its knowledge base. Wagbot over the 2016 Christmas “There are platforms that do a Staff at Community Law can review the responses break, but had worked with much better job of protecting user Wagbot is giving and give it suggestions for better match- Community Law Wellington and privacy, but none have the reach of ing questions to answers. Where there are gaps in its Hutt Valley for five years on pub- Facebook.” knowledge, staff can research and write new responses, lishing-related jobs before working Accessibility and a user-friendly so that the next time Wagbot can be more useful. on the Wagbot technology. platform is key so that Wagbot “At Loomio [a company building is easily navigated by those who an open source group decision-mak- wanting to use it. ing platform] I explored natural The age group most acquainted language interfaces to make the with social media are digital natives software more accessible,” he says. – those born after the introduction of “I built a barely-working, but digital technology. Most of Wagbot’s promising, prototype and pitched users fall into this category and are it to Community Law. They agreed to aged between 13 and 17. fund it for a few months to find out Facebook Messenger is the most if this was an area worth seriously widely-used platform by high school investing in.” students, and is secure enough for That said, the system is still in its infancy and doesn’t Community Law saw the bene- chatbots to use as their delivery have all the answers. fits of the system and it has been system. “When Wagbot gets beyond its areas of usefulness, the running ever since. Wagbot’s knowledge base was bot will suggest other subject relevant services providing designed around Community Law’s contact details to helpful organisations,” says Matthew. Interface and delivery Problems at School book. system development “The content is relevant to a Wagbot’s delivery system is through demographic who are likely to be Facebook Messenger, an instant open to this new form of delivery… messaging service, and a favourite making it more straightforward to of chatbot designers. convert into chatbottable content,” Facebook’s network has an says Mr Bartlett. extensive reach with more than 1.2 “It occurred to me that some of billion users; as of April 2017, the Community Law’s amazing plain Pew Research Centre noted that English legal resources would be Messenger accounts for 79% of the ideal ‘raw material’ for a chatbot Wagbot has had a lot of usage since its release in world’s internet users. interface.” May and its development team has received plenty of “The latest stats I have for New Wagbot can provide answers and feedback. Zealand say that around 85% of information on a variety of subjects; “We have had positive messages coming through

68 RECENT DEVELOPMENTS · TECHNOLOGY

TECHNOLOGY RECENT DEVELOPMENTS MyAdvice. Legal

BY NICK BUTCHER about Wagbot on the associated “It’s like a legal Facebook page,” – Mai Chen phone centre, Student Right Line, and see a steady stream of teens recommending it to each other on How legal services Facebook.” are being delivered has been going through an More in the works online revolution for The Wagbot team are currently in some time and a new discussions with a potential funder website where people for producing chatbot interfaces to seeking legal advice other Community Law publications. can target a lawyer “Most likely, the next bot we release with the specific legal will be based on the resource Lag skills is the latest in Law: Your rights inside prison and on the evolution. release,” says Mr Bartlett. MyAdvice.Legal Another, somewhat complex, was created by Mai possibility is a chatbot capable of Chen of Chen Palmer providing answers found in The Partners. Community Law Manual. “At this “We have lawyers in New Zealand with a weekly report and if the stage it looks like the most prom- who have a lot of expertise and client is living rurally access with ising approach will be to build bots specialities but sometimes it’s not the lawyer can be maintained online covering particular subject areas known among the general public. through Skype.” (eg, employment, immigration, We need to have a better way for MyAdvice.Legal was launched renting).” people to access this experience and mid-October and Ms Chen says If this chatbot technology can knowledge,” she says. interest has been high. be developed further, to the scale MyAdvice.Legal works off the phi- “We were getting 40 to 60 visitors of the 900-page Community Law losophy ‘Best Lawyer, Best Practice, an hour,” she says. Manual, then it may become one and Best Price’. Once a lawyer affiliated with the of the earliest versions of a robot Ms Chen says there are ten site gets a confirmed instruction lawyer in New Zealand. customer promises that lawyers from a client, the subscription cost This kind of technology can provide must agree on, to be able to reg- is $199 a month. many benefits to caregivers seeking ister on the site, and so offer their “We do take a 2.5% administration answers to school-related questions, expertise. fee from the agreed budget between or students who might need guidance “That includes the principle of the two parties.” on a problem but don’t feel comfort- transparency and that a lawyer Lawyers will be able to promote able talking to an adult. will respond within 24 hours and their own specialised experi- provide the first hour of legal advice ence via their online profiles at Recent Developments aims to for free. They have to agree to do MyAdvice.Legal by contributing provide information on new prod- one piece of pro-bono work a year,” blogs and articles. ucts and services which are likely she says. “I think value billing will become to be of interest to lawyers. While Ms Chen says the client has access more prevalent and artificial intel- the New Zealand Law Society only to an encrypted portal to keep all ligence will be essential to keep the profiles products which it believes documentation secure and will have price of advice more consistent have proven benefits, it does not access to video conferencing. with client expectations,” says endorse these. “They have to provide the client Mai Chen.

69 LEGAL INFORMATION

LEGAL INFORMATION

New legal International Indigenous Rights in Aotearoa books received New Zealand Edited by Andrew Erueti After voting against it in 2007, New BY GEOFF Zealand expressed its support for ADLAM the UN Declaration on the Rights of Indigenous Peoples in 2010. Andrew Eruiti, a senior lecturer at the University of Auckland Faculty of Law, edits a col- lection of essays which focus on placing the Declaration Criminal Justice: A New in a New Zealand context and how it impacts on what Zealand Introduction he describes as “a relatively robust set of rights aimed Edited by Jarrod Gilbert and at promoting and respecting the rights of Māori”. Falling Greg Newbold into three parts, the book considers the relationship The 14 chapters and 18 contributors between indigenous rights and human rights, the consider the key ideas, principles implications of the Declaration on specific areas of and frameworks defining New New Zealand indigenous rights, and New Zealand’s Zealand’s criminal justice system. compliance with the Declaration. The 10 essays had The editors say their objective is a their genesis in a Law Foundation symposium in 2014. book which not only serves as a key resource for stu- Victoria University Press, 978-1-776560-48-6, dents, but which is also of value to practitioners in the September 2017, 232 pages, paperback, $40 (GST included, criminal justice field. The first five chapters investigate postage not included). the origins and history of the system, coving crime rates, policing and corrections. Three chapters on current prac- tice cover evidence, trial and sentencing. The last six Williams and Kawharu on chapters look at key issues – psychology, Māori, Youth, Arbitration, 2nd Edition injustice, news media, and gangs and underworld justice. By Sir David Williams and Auckland University Press, 978-1-869408-76-3, Amokura Kawharu December 2017, 342 pages, paperback, $59.99 (GST The first edition of this definitive included, postage not included). treatise and JF Northey Prize winner was published in 2011. In a foreword, Court of Appeal President Litigation Skills: A Stephen Kós places it among the great New Zealand Practical Guide to legal texts, with its “vivid scholarship … the direct Judge-alone Trials product of profound knowledge and experience of the By Janine Bonifant daily practice of arbitration not only in New Zealand and Anne Toohey but in other jurisdictions”. The four-part structure sets Wellington barrister Janine the arbitration system in context, provides comprehen- Bonifant has over 20 years’ expe- sive coverage of all aspects of our Arbitration Act 1996, rience in criminal litigation, includ- followed by international commercial arbitration and ing as a senior Crown Prosecutor ending with investment treaty arbitration. Appendices and for the PDS. Anne Toohey is a barrister at Canterbury include legislation, UNCITRAL and ICC Rules and other Chambers and has prosecuted for the Crown. Their documents and guidance. In addition to the two prin- handbook is aimed at junior and intermediate defence cipal authors, the contributing authors are Anna Kirk, lawyers and adopts a start-to-finish approach on pre- Daniel Kalderimis and Wendy Miles QC. paring for and conducting a judge-alone trial. It includes LexisNexis NZ Ltd, 978-1-927313-91-6, August 2017, flowcharts, check lists, example documents and letters, paperback and e-book, 1154 pages, $200 (GST included, along with appendices of the relevant legislation. postage not included). LexisNexis NZ Ltd, 978-0-947514-39-6, November 2017, paperback and e-book, 254 pages, $85 (GST included, This information is compiled from books which pub- postage not included). lishers have sent to LawTalk.

70 LEGAL INFORMATION

LEGAL INFORMATION New Zealand Women’sNew Zealand Journal Law — Te Aho Kawe Kaupapa Ture a ng ā W

NEW ZEALAND New Zealand WOMEN’S LAW JOURNAL TE AHO KAWE KAUPAPA TURE A NGĀ WĀHINE

Women’s Law Journal VOLUME I 2017 ā Te Aho Kawe Kaupapa hine VOLUME 1 2017

Rt Hon Chief Justice Dame Sian Elias Joy Guo Tunisia Napia Hon Justice Susan Glazebrook Nicole Ashby Bridgette Toy-Cronin Ture a ngā Wāhine Hon Deputy Chief Judge Caren Fox Taylor Mitchell Helena Kaho Lady Deborah Chambers QC Anjori Mitra Savannah Post Kathryn Beck Jackie Edmond Caitlin Hollings Louise Grey Erica Burke Rosa Polaschek BY ANGHARAD O’FLYNN

of their work.” The first edition of the New Zealand Women’s Law Journal TheJournal has 18 editors, three business staff, seven – Te Aho Kawe Kaupapa Ture a ngā Wāhine was launched Advisory Board members, and 14 Academic Review Board on 27 November 2017. members, plus several article peer reviewers. The brainchild of Ana Lenard, an associate at “Blending and mixing is a good thing to help women Auckland law firm Gilbert Walker, and Allanah Colley, a progress in their careers and try and deal with some of judges’ clerk at the Wellington High Court, the Women’s that ‘glass ceiling’ type stuff,” says Ana. Law Journal is the first gender-focused legal publication Those involved include judges, Queen’s Counsel, in New Zealand. It will explore gender issues in the practitioners and academics – there is also a Law law and adds to a number of initiatives supporting Commissioner and a Defence Force Lieutenant-Colonel. women lawyers. The Journal has gathered plenty of support and The co-editors had the idea for the journal in August has several sponsors: LexisNexis, ADLS Incorporated, 2016 during their final year at Auckland University’s Russell McVeagh, Buddle Findlay, the University of law school. Auckland Faculty of Law, Antonia Fisher QC and Alex “I started thinking about what we could do in our McDonald. free time to use the skills that we would have as law “It has been spectacular and humbling to see how graduates to contribute to the legal profession and many people care about the Journal’s goals. We are society at large,” says Ana. “We came up with the idea always open to hearing from people who are interested of starting a legal journal because it is a good vehicle for in being involved and supporting our work,” says Ana. advocacy through law on a particular issue.” The first publication features a variety of subjects The pair saw the need for an including: women’s role in tikanga; whether a female outlet where gender issues could partner quota should be introduced into firms; what be discussed, and ideas published, the best paid parental scheme for New Zealand would which might have an impact on the be; Pacific people and non-violence programmes; a call creation and interpretation of law, for abortion law reform; and notes about recent cases and women’s experiences in the and legislation of interest. profession. The pair saw There will also be international articles focusing on “If you are somebody who is the need for the inclusion of women in the negotiation and drafting writing about gender issues in the an outlet of the Paris Agreement, and international law’s changing law, it’s not necessarily the most where gender attitudes towards abortion. appealing topic,” says Ana. issues could be A speech by the Chief Justice is included, as is a ‘state “We thought if we provide a space discussed, and of the nation’ piece looking at women in the law by for it, then it will give people who ideas published, Deputy Chief Judge Caren Fox, Lady Deborah Chambers write on these topics a forum in which might have QC and New Zealand Law Society President Kathryn which they can get published. It will an impact on Beck. also, hopefully, help encourage more the creation and people to think about writing about interpretation of The New Zealand Women’s Law Journal is available these topics because they have com- law, and women’s for sale in hard copy and free online at  www. fort knowing that there is a place experiences in womenslawjournal.co.nz. Submissions for the 2018 that will value the subject-matter the profession. edition are due on 1 April 2018.

71 LEGAL INFORMATION

LEGAL INFORMATION From tempting idea to weighty tome

Feminist Judgments of Aotearoa New Zealand – Te Rino: A Two-Stranded Rope (Hart Publishing, Oxford and Portland, 2017) $173.

REVIEWED BY CAROLINE HICKMAN

then Australia (Heather Douglas, Francesca a separate commentary from another Feminist Judgments Aotearoa is a Bartlett, Trish Luker and Rosemary Hunter), author which situates the judgment collection of key New Zealand judgments the United States (Kathryn M Stanchi, within its legal and social framework and that have been re-written in a way that a Linda L Berger and Bridget J Crawford), discusses the original judgment. feminist judge might write them. It is a and finally Northern Ireland and Ireland (M While Feminist Judgments Aotearoa is weighty tome that has something of value Enright, J McCandless and A O’Donoghue). about gender and the difference gender to offer any reader curious about how a The goal of the book is to provide readers makes, its message is demonstrably wider. set of ostensibly neutral legal principles with new perspectives in the reading of The additional and unexpected value is can be applied in a way which better New Zealand law by creating judgments understanding how applying feminist legal responds to the experiences of women, and that could legitimately sit alongside the reasoning and conceptualising experiences Māori women. It challenges the concept original judgments as realistic and possible of ‘otherness’ provides a template for inclu- of judicial neutrality and begins with the alternatives. It aims to transform theory into siveness of other diverse groups within our premise that no matter how hard judges try practice and has a didactic but also a prac- existing legal framework. to be fair and impartial, unconscious bias tical purpose. As with judicial law-making, This is probably not the book to browse plays an inevitable part in judicial decision process can be as important as outcome and at the beach while keeping half an eye on making. In other words, “[i]t matters who “the way in which a judge tells a story of the the kids in the water. It is a dense and the judge is” (Baroness Hale). A reviewer case also plays a potentially therapeutic role concentrated read spanning 576 pages. of the Australian counterpart of this book for the parties even if the outcome is dis- However, for practitioners, the exercise in points out that the value of this kind of appointing...” (page 35). Judgments which reading feminist judgments is an important project is not just to feminists or women, attempt to understand and re-situate a point opportunity to learn about how alterna- but to “readers to whom the ‘F word’ in the of view are not just potentially therapeutic tive experiences can be used to challenge book’s title might not ordinarily appeal” but can be transformative to an aggrieved existing legal doctrines in a legitimate way. (Heather Roberts and Laura Sweeney). and disempowered party. The book does not need to be read in order. The book comprises 25 judgments, 19 All the judgments are reimagined from Helpfully, the preface describes how to read re-written from a feminist perspective the original judgments selected as signif- the book, suggesting that the three intro- and six re-written from a ‘mana wahine’ icant within their own area of law. The 12 ductory chapters provide useful context, perspective. The 57 contributors include subject areas span traditional areas of fem- illustration and illumination (page ix). leading academics as well as other legal- inist critique such as criminal, family and In Chapter 1 the editors recreate the ly-trained authors who provide diversity employment law, but also include environ- dialogue telling the story of the project’s of gender, sexuality, religion, politics, race mental law and commercial relationships, creation from inception to birth. Chapter and cultural identity and includes a retired areas which might not normally be regarded 2 discusses law in Aotearoa New Zealand, judge who has bravely re-written one of as amenable to feminist critique. describing the “veneer” of monolegalism his own decisions. The impressive line-up These re-imagined judgments are not of the law imported from England; the of influential legal contributors adds to the fantasies written within the context constitutional framework including the gravitas and mana of the project. of a female utopia. The judgments are Treaty of Waitangi; the New Zealand courts The resulting book takes a proud and grounded in existing legal doctrine. The systems as well as some of the Māori values unique place in the emerging movement of author’s brief was to re-write an actual underpinning legal thinking and practice. feminist judgment writing projects as crit- judgment constrained by the statutory Chapter 3 provides a critical introduction to ical legal theory. It follows other books of basis, common law precedents and social the feminist and ‘mana wahine’ judgments re-written feminist judgments which first and political conventions that existed at as well as a description and chronology of the came out in England and Wales (Rosemary the time the judgment was originally global feminist judgment movement. After Hunter, Clare McGlynn, and Erika Rackley), written. Each judgment is prefaced with the introductory chapters, each re-written

72 CLASSIFIEDS · LEGAL JOBS

judgment with commentary presents a stand-alone critical reflection. One particular challenge was “how to give voice to Māori women in a manner consistent with Te Tiriti o Waitangi (the Treaty of Waitangi)” (page 28). Intersectionality is an attempt to develop a specifically ‘mana wahine’ framework which can be applied to judgment writing. The mana wahine framework springs from kaupapa Māori and has five strands: claiming visible space for Māori women, and Māori generally; identifying rights and obligations that uphold the mana of Māori women and their families; placing Māori concerns and Māori people at the centre (not the margins) of the factual and legal analysis; applying legal tests so as to include Māori everyday reality (rather than an idealised or abstract notion of Māori life); paying respect to Māori values and principles. By contrast, feminist legal theory uses techniques such as asking ‘the woman question’, contextualising and particularising Experienced legal secretary available to undertake reasoning, and recognising and using women’s narratives to create all your audio transcription and copy-typing work. a legal truth so that the judicial reasoning is at least as important as the outcome. The tension between the way judges are taught to Fast turnaround. Weekend and holiday service also write judgments with an emphasis on clear issue-identification, provided. minimal factual description and limited reasoning does not sit Hourly rate $35. First 30 audio minutes transcribed well with feminist methodology (page 14). This methodology often at no cost to enable you to trial my work. begins with women’s experiences and stories and may involve providing factual details that may have been marginalised or over- Contact Amanda Cairns on 027 634 2517 or 04 526 8107 looked to provide contextualising information and these facts are email: [email protected] regarded as being as important as the law. Unsurprisingly, there are Referees available if required. recurrent threads throughout the judgments such as recognising and recounting women’s narratives, challenging gender bias and applying feminist theory, the private versus public spheres, the TAURANGA LAW PRACTICE FOR SALE anti-subordination of women and the ethic of care. Feminist Judgments Aotearoa followed a collaborative meth- A well-established Legal Practice is for sale in sunny odology. Rather than each writer being given a task of writing Tauranga. This is a great opportunity for any Lawyer a commentary or judgment in isolation and then forwarding it seeking to relocate to Tauranga or a local Lawyer to the editors for comment, the authors came together for six seeking to purchase his or her own Practice. workshops. These involved bringing in experts on judgment writing A broad based business with the major areas being: and collaboratively ‘workshopping’ draft judgments. Rosemary » Commercial & residential conveyancing Hunter, now considered a worldwide expert on feminist judging » Relationship property and Family Law (having edited two of the previous volumes of feminist judgments » Trusts, Wills and Estates. and involved in some capacity in all of them), attended two of the workshops as co-editor and was considered an invaluable asset Please email expressions of interest to to the Law Foundation-funded project. [email protected] The concept of feminist judgments need not be regarded by All enquiries treated in the strictest confidence. the hegemony as threatening, in fact these judgments are deeply liberating for all. Like other feminist judgment projects worldwide, and as noted in the preface to the US Feminist Judgments, this offering demonstrates “that feminist reasoning increases judi- Family Lawyer on the North Shore cial capacity for justice, not only for women but for many other oppressed groups.” (Preface, xxix) Want a better work-life balance? Legal judgments are inevitably influenced by personal per- We are looking for a driven and enthusiastic family lawyer to spective, no matter how hard judges strive for impartiality (page work within our positive and supportive team. vii). While judges in New Zealand now periodically receive You will need to have been admitted to the bar and training about unconscious bias, this professional development completed both Family Law papers during your LLB. You will is not compulsory. Feminist Judgments Aotearoa is a fascinating, also need excellent communication skills, an eye for detail, an sometimes confronting, but ultimately extremely rewarding read ability to empathise and be passionate about helping others. which challenges us to see other legitimate possibilities in the law. All applications will be treated in confidence.

Caroline Hickman  [email protected] is a Napier- To apply please send a cover letter and CV to: PO Box 301385, based barrister and mediator. She specialises in family, rela- Albany 0752, Auckland. Applications close 22/12/17. tionship property and youth law.

73 WILL NOTICES · CLASSIFIEDS December 2017 · LAWTALK 913

Will Dwyer, Sean Gerard Murray, Frank John Would any lawyer holding a will for the above- Would any lawyer holding a will for the above-named, named, late of Auckland, New Zealand, who died formerly of 33 Oregon Drive, Murupara, beneficiary, on 3 November 2017 aged 56 years, please contact but latterly of Redwood Carehome, Te Ngae, Rotorua, notices Aleisha Collett, Franklin Law: who died in Rotorua on 15 September 2017 aged 53  [email protected] years, please contact Don Howden, Jones Howden, Adams, William Francis  09 237 0066 Solicitors: Andreassend, Megan Marion  PO Box 43, Pukekohe 2340  [email protected] nee Johnston DX EP77020  07 888 7072  PO Box 1, Matamata 3440 - DX GA27017 Berry, Bruce Winston Gray, Charles John James Dunbar Coker, Mary Agnes Would any lawyer holding a will for the above-named, Rarere, Mere Te Iwingara Isabelle Dwyer, Sean Gerard late of 95D Arthur Street, Blenheim, Gardener, born Would any lawyer holding a will for the above-named, Gray, Charles John James Dunbar on 9 August 1951, who died on 19 September 2017, aka nee Mere Te Iwi Ngaro, born on 9 January 1958, Lange, Audrey Carol please contact Vicky Frater, Lundons Law who died at Lower Hutt on 29 July 2017, please contact Simone Seddon, Collins May Law: Liant, Yves  [email protected]  03 578 9988  [email protected] Marjoribanks, Ian Lloyd (“Lloyd”)  PO Box 268, Blenheim 7240  04 576 1411 Marlow, Timothy John  PO Box 30614, Lower Hutt 5040 Mercer, Douglas Cyril Lange, Audrey Carol Smith, Meriana Waitangi Murray, Frank John Would any lawyer holding a will for the above-named, late of Glendene in Auckland, Retired Accountant, Would any lawyer holding a will for the above-named, Rarere, Mere Te Iwingara Isabelle who died on 11 July 2017, please contact Siobhan late Birkenhead Avenue, Birkenhead, Teacher, born Smith, Meriana Waitangi O’Sullivan, Kemps Weir Lawyers: on 17 November 1981, who died on 4 October 2017 Taukiri, Shane Jason  [email protected] please contact John Tattersfield, Lawyer: Walker, Judith Ellen  09 525 4593  [email protected] Wheeler, Paul  PO Box 62566, Greenlane, Auckland 1546  09 443 1395  PO Box 311 034, Glenfield, Auckland 0747 Williams, Ivy Liant, Yves , Shane Jason Would any lawyer holding a will for the above-named, Taukiri late of Papeete, Tahiti, French Polynesia, Retired, Would any lawyer holding a will for the above-named, Adams, William Francis who died on 28 May 2014, please contact Catherine formerly of Whakatane, Driver, then of Papakura, Would any lawyer holding a will for the above-named, Sumpter, Carter Atmore Law: Manager and latterly of Matamata, Grocery Manager, late of 31 Alexander Street, Kingsland, Auckland,  [email protected] who died in Hamilton on 11 October 2017 aged 49 Electrical Engineer, born on 14 April 1960, who  09 921 5016 years, please contact Don Howden, Jones Howden, died on 24 September 2017 please contact Melanie  PO Box 68656, Wellesley St, Auckland 1041 Solicitors: Forsman, Metro Law: DX CX10189, Auckland  [email protected][email protected]  07 888 7072  09 929 0812 Marjoribanks, Ian Lloyd (“Lloyd”)  PO Box 1, Matamata 3440 - DX GA27017  PO Box 68882, Wellesley St, Auckland 1141 Would any lawyer holding a will for the above-named, Walker, Judith Ellen late of Tokoroa, who died on 2 November 2017 in Andreassend, Megan Marion Tokoroa, please contact Jennie Burney, Le Pine & Co: Would any lawyer holding a will for the above-named, nee Johnston late of Merrivale Rest Home & Hospital, 1 Winger  [email protected] Cres, Springs Flat, Whangarei, who died at Whangarei Would any lawyer holding a will for the above-named,  07 883 8096 on 28 October 2017 please contact Andrew Luxford, late of Oamaru, born in Christchurch on 4 May 1980,  PO Box 62, Putarauru 3443 who died on 23 October 2017, please contact Nikki The Oaks Law Centre: Canham, Dean & Associates, Solicitors: Marlow, Timothy John  [email protected][email protected] Would any lawyer holding a will for the above-named,  09 430 0207  03 434 5128 late of Auckland, New Zealand, Mechanic, who died  PO Box 200, Whangarei 0140  PO Box 242, Oamaru 9444 - DX WA32523, on 21 October 2017 aged 63 years, please contact Jo Wheeler, Paul Lovett, Franklin Law: Berry, Bruce Winston Would any lawyer holding a will for the above-named,  [email protected] born on 2 September 1971, Installation Technician, Would any lawyer holding a will for the above-  09 237 0066 who died at Auckland Central on 14/15 October named, late of Westport , retired teacher, who died  PO Box 43, Pukekohe 2340 2017 aged 46 years, please contact Grant Litchfield, in November 2017, please contact Vernon Woodhams, DX EP77020 Vosper Law: Complete Legal Ltd, Solicitors:  [email protected] Mercer, Douglas Cyril  [email protected]  07 827 6140 Would any lawyer holding a Will for the above-  09 237 0291  PO Box 489, Cambridge 3450 named, late of 26 Gordon Road, Mount Maunganui,  PO Box 264, Pukekohe - DX EP77026 DX GA27509 born on 25 August 1919, who died on 12 May 2012, Williams, Ivy please contact Lyn Hooper, Mackenzie Elvin: Coker, Mary Agnes Would any lawyer holding a will for the above-  [email protected] named, late of St Andrews Village, 207 Riddell Road, Would any lawyer holding a will for the above-named,  07 578 5033 Glendowie, Auckland, who died on 8 September 2017 late of Auckland, Retired, born on 22 December 1943,  PO Box 14016, Tauranga 3143 who died on 25 October 2017, please contact Sharleen aged 89 years, please contact Pearl Butler, Gellert Te Runa, Public Trust: Ivanson:  [email protected][email protected]  09 985 6850  09 575 2330  6 Alderman Drive, Henderson, Auckland  PO Box 25239, St Heliers, Auckland 1740

74 LAWTALK 913 · December 2017 CLASSIFIEDS · LEGAL JOBS

REFEREES, DISPUTES TRIBUNAL REFEREES, DISPUTES TRIBUNAL

There will shortly be a process for the appointment of There will shortly be a process for the appointment Referees in the Nelson/Blenheim Region. Members of Referees in the Auckland Region. Members of the of the public are invited to submit the names of public are invited to submit the names of persons persons who are considered suitable for appointment who are considered suitable for appointment as as Referee. Referee. Nominations must be sent in writing or by email. Nominations must be sent in writing or by email. They must contain the name, address, telephone They must contain the name, address, telephone number and email address of both the nominator number and email address of both the nominator and the person being nominated. and the person being nominated. Once a nomination has been received, the person Once a nomination has been received, the person who is nominated will be sent an application pack who is nominated will be sent an application pack with details relating to the position and how to apply with details relating to the position and how to apply for it. for it. Nominations are to be made to the Principal Disputes Nominations are to be made to the Principal Disputes Referee, Private Bag 32 001, Featherston Street, Referee, Private Bag 32 001, Featherston Street, Wellington 6146, Ph: (04) 462 6695, or email: Wellington 6146, Ph: (04) 462 6695, or email: [email protected] [email protected] Nominations must be received by this office no later Nominations must be received by this office no later than 12 noon on Wednesday 20 December 2017. than 12 noon on Wednesday 10 January 2018.

TWO INTERMEDIATE LAWYER ROLES Izard Weston seeks new talent!

We are a fleet-footed, long established and highly regarded mid-sized law firm based in Central Wellington and are looking for two new solicitors to join us – a litigator and a commercial/property lawyer. Both roles require the candidate to have the ability to work autonomously and maintain substantial client contact. The successful applicants will be capable lawyers with a good sense of fun and a life outside work.

INTERMEDIATE LITIGATION LAWYER We are looking for a bright and talented civil litigation lawyer. Applicants should have strong advocacy skills and litigation experience, and have appeared as counsel in courts and tribunals. This role will give you great hands-on experience across a range of interesting work. In addition to a good understanding of civil procedure and commercial litigation, experience in some of our specialist areas would be an advantage (but is not essential): energy, motor trade, maritime, media, trade practices, consumer law, property, insolvency, debt collection, information technology, sports, insurance, regulatory issues and employment law. COMMERCIAL/PROPERTY/PRIVATE CLIENT LAWYER We also seek a commercial/property/private client lawyer. Applicants should preferably have experience in each of these areas of practice and be prepared to turn their hand to a wide range of different work. Whilst you will work closely with our partners and be able to learn from them, your role will also involve plenty of contact with our clients and other practitioners. It will be a great opportunity to grow both your legal and professional skills.

Terms of employment will reflect the experience and ability of the successful applicants. Applications for these roles, together with your CV and full academic transcript, should be sent to Richard Hogan, [email protected], or mailed to Izard Weston, PO Box 5348 Wellington, 6145

75 LONDON IS MOVING TO THE UK Our clients in London are actively YOUR NEW YEAR’S seeking first-class Commonwealth qualified lawyers to commence in 2018. RESOLUTION?

All applicants must have: If you are interested in exploring your options overseas, please contact us at Legal experience gained in a top-tier law firm [email protected] At least 3 years of post-admission experience and one of the team Areas currently in demand: will be happy to assist you! Construction Dispute Resolution Corporate Immigration Please note: UK firms will usually discount New Zealand Corporate Insurance PQE by 2 years due to the UK Payments and Financial Products training contract period. On that basis, the PQE outlined Project Finance in our vacancies are PQE Property levels these clients would expect from NZ or Australian Restructuring qualified lawyers. Banking TMT www.claritynz.com Data Protection

IS 2018 YOUR YEAR?

Thank you to all of our valuable candidates and clients. 2017 has been a remarkable year, but we have a feeling 2018 will be even better! We hope you have a MerryMerry ChristmasChristmas and a HappyHappy NewNew Year!Year!

If you are a candidate seeking a new opportunity, or a business that would like help finding that perfect person to join your team, Head on over to we have experienced Consultants ready to our website for a help you! If you have already made plans for free CV review! the new year, or you are just starting to think www.claritynz.com about it, please get in touch now. IS MOVING TO THE UK LONDON To speak with a member of our team Phone: 0800 333 111 Our clients in London are actively YOUR NEW YEAR’S CPD Calendar seeking first-class Commonwealth qualified lawyers to commence in 2018. RESOLUTION? PROGRAMME PRESENTERS CONTENT WHERE WHEN COMPANY, COMMERCIAL AND TAX All applicants must have: If you are interested in exploring your options INTRODUCTION Local Presenters A practical two-day transaction-based workshop that will Christchurch 7-8 Mar TO COMPANY LAW equip you with the knowledge and understanding to deal Wellington 15-16 Mar overseas, please contact us at PRACTICE with the purchase, establishment, operation and sale of a Legal experience gained in a top-tier law firm business. A popular, regular in the CLE calendar. Auckland 19-20 Mar [email protected] 13 CPD hours Registrations open 13 December. At least 3 years of post-admission experience and one of the team GENERAL will be happy to Areas currently in demand: DEALING WITH Simon D’Arcy Some people in the legal arena can be hard to work with – Wellington 28 Feb assist you! DIFFICULT PEOPLE solicitors on the other side of a matter, clients, witnesses, Auckland 5 Mar Construction Dispute Resolution opposing parties, senior partners, judges or your own Christchuch 7 Mar Please note: UK firms will 5.5 CPD hours sta . People working in the law get challenged by di‡ cult Corporate Immigration behaviours daily. The workshop will enable you to improve usually discount New Zealand communications with everyone you deal with and reduce your Corporate Insurance PQE by 2 years due to the UK stress in di‡ cult communications. Registrations open 6 December. Payments and Financial Products training contract period. On that basis, the PQE outlined CPD TOP-UP DAY Chairs: Designed for the busy general practitioner to “top-up” your Project Finance in our vacancies are PQE Stephanie Marsden year’s CPD. A one-day programme o ering 7 hours face-to- Christchurch 13 Feb levels these clients would 7+3 CPD hours Steph Dyhrberg face CPD together with a bonus 3 hour Online CPD, for you Wellington A 14 Feb Property Jane Meares to complete when and where it suits. Whatever your level of expect from NZ or Australian Lope Ginnen experience, the programme will provide practical advice on Wellington B 14 Feb Restructuring qualified lawyers. hot topics across a range of practice areas, with a regional Auckland 15 Feb focus and presented by an impressive line-up of speakers. Banking Live Web Stream 14 Feb TMT www.claritynz.com PROPERTY Data Protection LAND TRANSACTIONS – Peter Barrett This webinar will provide both legal and accounting Webinar 5 Dec TAX COMPLIANCE Mike Brunner perspectives regarding tax statements, the bright line test, RLWT and GST issues on the sale & purchase of land. You 1.5 CPD hours will gain a sound understanding of what tax information is required for land transactions and how to avoid tax compliance headaches.

COMMERCIAL LEASING Stella Chan Whether acting for a landlord or a tenant, it is always the Webinar 6 Dec UPDATE Michael O’Flaherty priority of the commercial leasing lawyer to help negotiate IS 2018 YOUR YEAR? the best terms and conditions with the aim of ensuring your 1.5 CPD hours clients are able to achieve their objectives. This webinar will focus on the ADLS lease form in addressing specifi c issues Thank you to all of our valuable related to; agreement to lease, deed of lease, variation of lease, assignment, and sublease. candidates and clients. 2017 has been a remarkable year, but we have a feeling 2018 will be even better! We hope you have a MerryMerry ChristmasChristmas and a HappyHappy NewNew Year!Year!

If you are a candidate seeking a new opportunity, or a business that would like help finding that perfect person to join your team, Head on over to we have experienced Consultants ready to our website for a help you! If you have already made plans for free CV review! the new year, or you are just starting to think www.claritynz.com about it, please get in touch now. For FULL CPD calendar see www.lawyerseducation.co.nz LIFESTYLE

LIFESTYLE

Buy carefully on London Food Tours

BY JOHN BISHOP

Food tours are enormously popular in many major cities around the world, and often in areas with ▸ The Hawley unique cuisines. London presents a special chal- Arms, Camden. lenge as Europeans generally look down upon Performance English cooking as stodgy, provincial and unim- venue for Amy Winehouse. aginative. John Bishop found there is plenty to be delighted about as he took three food tours around London, with some history and culture thrown in.

Each of the tours I chose varied widely in price and con- tent. Deliberately so, because I wanted a range of experiences, and neither particularly secret nor especially because I was determined to try free stuff (although, of course, it worth it. That wasn’t the fault of Eddie wasn’t actually free at all). the guide who was knowledgeable and Top of the line was a twilight food and cocktail tour of Soho entertaining. which I undertook on a Friday night. At £95 this was the most The problem lies in the design of the expensive, but it was also the best. The guide was the most knowl- tour. There is barely enough here worth edgeable and professional of the three I had. The food was the paying for. Most of the action centres best, and most importantly it took me to places that I would not on the Borough Market, one of the city’s have found easily by myself. oldest. A market has operated at or near The cheapest was a walking tour of Camden Town. This was there since 1016 and was rehoused under less about food than about music, the counter culture and nos- London Bridge in 1756. talgia. This is Amy Winehouse country and I happily drank in the It’s directly opposite the London Bridge pub where she sang, and often drank. I Tube Station and very definitely open to rated this second. It was supposedly free, the public. The £63 fee presumably buys although the blurb said participants were the various food samples and pays the free to pay the guide what they though the guide. We got a piece of Scotch egg, half tour was worth. I handed over £15, while Price is a a piece of fish and some chips (from others seemed to be a little less generous. faithful though London’s prize-winning fish and chip not an infallible shop, an accolade which seemed wholly Traditional British Food Tour guide, but unmerited to many of us), a piece of The disappointing one was a £63 walking beware of the pork pie (which was top class), samples tour of the London Bridge markets. There overpriced and of mead, some cider and three types of were plenty of samples and many of them the mediocre. cheese in an old pub (all enjoyable), a top- were tasty too. But I couldn’t shake the Pay for what class cream donut and then some tea or feeling that I could have come here by you can’t coffee to end the tour. myself and wandered around and got most get yourself; One delight – in the market but not of the samples anyway. otherwise part of the tour – was the Monmouth Café It is called the Traditional British go the free which served a wonderful flat white fully Food Tour and is organised by Secret route and tip as good as the best in New Zealand. Food Tours, a company which operates when you are A halfway competent traveller able to tours in 15 cities around the world. It is satisfied. work the internet could have come to the

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▴ A rare, very good coffee shop — Monmouth Coffee, Camden.

market, taken the samples being offered by the stall holders, bought what was in our tour fee and still had change. I’ve no objection to paying for added value; I’m just not sure where that was in this case. Music, Marx and Orwell At Camden Town I join eight others for a free guided walking tour (freetoursbyfoot.com). This was a cracking good experience. Colin, the guide, loves Camden, though he is from Essex. He knows his stuff about the area, and he tells the stories in an engaging and interesting way. Nominally this is a free tour lasting about 2.5 hours. It took longer, not that anyone was complaining and we all paid him. He talked knowledgeably and with affection about the origins of the area (navvies – mainly Irish – building the canals and then the railways), of its bohemian and then hippie status, of Amy Winehouse, of the various bands that began careers here (think Pogues, The Clash, Madness, Blur, Oasis, and earlier Led Zeppelin, Pink Floyd), and venues like the Roundhouse and Dingwalls where ex-Animal Chas Chandler built the longest bar in the world because he thought clubgoers were too often frustrated by not being able to get a drink. The markets retain their alternative feel; T-shirts rule and at the Hawley Arms, where Amy Winehouse sang and drank, I down a glass in her memory. Her statue is in the market and her image ▴ Amy Winehouse statue in Camden. is on many walls as a mural.

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It wasn’t all music. George Orwell lived ▸ Food selection in Arlington House, then and now a refuge at the Borough centre for those struggling in life. He’d been Market. Breads, working at Maxim’s in Paris and retreated fish, cheese, to Arlington House to write Down and Out and oysters. in Paris and London. It was a home for the homeless, “one of the better ones” Orwell noted. The Black Cap, a gay pub famous for its drag acts was here. In the 1970s the air was reckoned to be four parts oxygen and one part marijuana. Oasis and Blur, before either was famous, drank together in The Good Mixer pub and then, when both were raving successes, argued about who was top dog and fell out irretrievably. Soho was originally outside the walls of the city of London and in the 15th cen- tury was a hunting ground for the rich. The name apparently comes from a cry uttered by hunters chasing hares …. so there’s a hare. Later manor houses were built and by the 18th century many immigrants were living there, outside the city walls, and seemingly beyond the jurisdiction of the city authorities. Gin palaces, brothels and gambling dens thrived. Later, bohemian elements came to the area, including musi- cians, and by the 1960s it was the centre of Britain’s sex industry. Now it is a thriving and prosperous entertainment area, still with just a few sex shops, many pubs, cafes and restaurants, lots of very upmarket fashion stores, and still a few recording and media companies. (Carnaby Street is part of it; chic, elegant and expensive). Pie and bitter I bought a Twilight Soho Food and Cocktail Tour with Eating Europe Tours (operating in five European cities). At £95 (about $180) I was expecting a lot, and I certainly got it. The night began with tequila cocktails served with lime, crushed ice and coconut, and then on to Minnie Dean’s pub (no connection to her Kiwi namesake) where we enjoy one of the best meat pies I have ever had washed down with a half of bitter. On to Enrique Tomas in Wardour Street, a chain of Spanish bars where we are served three types of Spanish ham, three types of cheese and two wines, all with an informed commentary on taste and provenance sit- ting at a reserved pre-laid table. Across the road and around the corner

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▴ Friday nights in Soho. ▸ Part of the Twilight Soho Food and Cocktail tour. to a very swish tapas bar: help yourself to two tapas and move to a table at the rear where drinks are served. I enjoyed ham and a prawn on toast and a cup of gazpacho. We are among fashionable diners drinking, talking, sampling and admiring each other as the in-crowd does all around the world. We pass the house in Dean Street where Karl Marx and his wife and family lived during their early days in London. Some of his children were born and died there. It’s now an exclusive gentlemen’s retreat above a pub, opposite a strip club and by the famous De Lane Lea recording studio itself now owned by Warner Bros. The highlight for me was a place called Opium in Gerrard Street, a bar and hospi- Our last stop was a well reviewed to places which might have been found by tality venue on three levels. We climbed underground bar called Basement Sate in accident, but likely not. the narrow stairs to the top floor to find an Broadwick Street where we are treated Price is a faithful though not an infallible oriental style room and a relaxed cocktail to a rich French chocolate dessert with a guide, but beware of the overpriced and table setting. cocktail of tequila, aperol and sugar syrup the mediocre. Pay for what you can’t get A cocktail of honey, tea and vermouth topped with prosecco. yourself; otherwise go the free route and is served, along with dim sums, among Over three hours, this was a top of the tip when you are satisfied. the best ever; pork and shrimp, plus line experience, and while wildly self-in- big prawns, and chicken, with dipping dulgent, was worth the money for the John Bishop is a travel and food writer sauces of chilli, soy and Chinese vinegar. quality of the company, the knowledge of who visited London again this year. He Absolutely fabulous tastes and textures, the guide (Bethany, originally from the US travels on his own dime. See  www. generous servings and nothing left behind. but resident in London), and for the access eatdrinktravel.co.nz

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LIFESTYLE

Reflections from

BY NICK BUTCHER

“If you’ve got your marbles and you’re not falling over and you’re serious about your craft, you can get better at it.”

lick before heading Down Under. That loose statement could quite easily apply to practising In New Zealand, the Marriage (Definition law; after all, many lawyers practise well into their 70s and beyond. of Marriage) Amendment Act 2013 But it was made by former lawyer and politician Peter Garrett as enshrined marriage equality in law, but to why his band, , best known for international hits across the Tasman the issue is being like , and , reformed debated and opinion is divided. to tour the world. To gauge the sentiment as to whether Garrett was recently in New Zealand as part of the group’s same sex marriage should be allowed, a Great Circle world tour, performing in Auckland and Christchurch. nationwide postal survey form in the way He quit politics in 2013 after about a decade with the Australian of a voluntary vote has been mailed out. Labor Party. He had become part of the government under Prime But even if the response is a resounding Ministers Kevin Rudd and Julia Gillard, holding various ministerial yes to same sex marriage, Garrett says that roles including for the Environment, Heritage and the Arts. doesn’t necessarily mean a law change will Garrett is a towering figure at 1.93 metres tall and the day before occur. the Christchurch concert at the Horncastle Arena, he was inter- “The result isn’t binding on Parliament. I viewed in front of a live audience by journalist Finlay Macdonald. think it will get over the line. I’m certainly That session was followed by a book signing of his memoirsBig supporting it yet the process is actually Blue Sky along with an audience question and answer session. diverting Parliament from making an The interview delved into aspects of his book, the band Midnight actual decision,” he says. Oil which he joined in the mid-70s as a young law student in Garrett was an environmental activist Sydney, his life in politics and his continued fight for environmental before he joined Midnight Oil and eventu- protection and the rights of the aboriginal ally landed in politics. Many of their lyrics people of Australia. tackle issues concerning Aboriginal rights, Garrett says the band was surprised by the environment and other social justice the response it received to getting back themes. together. “We thought we would simply do a handful of shows and then it spiralled Moving from activism to into a world tour.” My parents parliamentary, party politics loved nothing “It was a carefree lifestyle when I was Sold out shows, and the more than young. I just wanted to ride waves and marriage equality debate to sit around meet girls,” he says. In fact their shows sold out for their North with a brandy That wouldn’t always be the case. American leg and the Oils – as they’re or red wine “I have always thought there is a role affectionately called by their followers talking about for people who care about politics to be – returned to the United States on com- and debating politicians. I did stand as a candidate pletion of their European tour for a second politics. As a for the Senate in the early 1980s for the young lawyer, Nuclear Disarmament Party. I finished up I found that in 2002 with Midnight Oil because I was ◂  Flickr user Bruce b stimulating. the Australian Conservation Foundation

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president, I was spending a lot of time with NGOs in and I felt the Oils had achieved what we had set out to achieve,” he says. Midnight Oil released 11 studio albums and their last offering Capricornia was in 2002. Garrett has always been a self-determined man. His father died when he was a student at university and his mother also died in a fire at the family home when he was young. Both events spurred an even stronger fight in Garrett to enter politics. “My parents loved nothing more than to sit around with a brandy or red wine talking about and debating politics. As a young lawyer, I found that stimulating. I’ve subsequently found that I have forebears who were politicians, although they were Tories,” he says. Fighting for rights Midnight Oil has always stood up for indigenous land rights in Australia which is evident in the politically charged song Beds are Burning. It’s an issue he continues to throw his weight behind today. ▴ Peter Garrett also ventured back in time to their very “When that came out in the 1980s, radio stations wouldn’t play (right) with early days, performing a rousing version it because it’s about giving land back to the Aboriginal people. Journalist Nick of No Time for Games from the It wasn’t until it was a hit in the USA that they started giving it Butcher. EP which was released in 1980. airplay,” he says. The band thundered through the arena The Oils also toured with Warumpi Band whose members were taking the crowd on a musical journey all aboriginal. The tour was called the ‘Black Fella, White Fella’ through their catalogue of albums such as tour and went into areas where the Indigenous people were the 10,9,8,7,6,5,4,3,2,1 including playing Only the majority, or even the only population. Strong, US Forces and Power and the Passion. In 1990 they performed a live street concert in New York aboard There were many songs from the 1989 a truck trailer in front of the Exxon building to protest oil spills. album Blue Sky Mine and the mid-80s Diesel Their slogan was ‘Midnight Oil makes you dance, Exxon oil make and Dust including Sometimes, The Dead you sick’. At the time, US Secretary of State, Rex Tillerson was the Heart, which lead to the crowd singing general manager of Exxon. along during the chanting harmony. “We were earnestly self-righteous back in our day and I think The late 1990s album Earth and Sun and some of our music colleagues found us Moon was also splashed on a crowd that quite insufferable,” Garrett says with a just kept calling for more and included laugh. But he stands by their decision to Truganini and One Country, where Garrett protest outside Exxon. sat on stage crooning the ballad while gui- They brought tarist switched to keyboards Do they still have the an intensity to accompany him. fire in their bellies? from the first In a second encore, Midnight Oil finished Midnight Oil performed at Horncastle Arena song Redneck with Best of Both Worlds from the 1984 in Christchurch as if they were auditioning Wonderland and album Red Sails in the Sunset. It brought a to be the best live act in the world. didn’t lose a beat crescendo effect to the experience. It could not be described as a nostalgia of energy for Was this tour a final swansong from one gig by a band playing for their retirement over two hours. of Australia’s finest rock groups? I’d doubt fund. It was hard to that very much and I’d expect to see a new They brought an intensity from the first fathom that album and a second tour. song Redneck Wonderland and didn’t lose a these guys were As Garrett said during the Christchurch beat of energy for over two hours. It was in their 60s but concert “I feel like I’m having my second hard to fathom that these guys were in then what does childhood”. their 60s but then what does being in your being in your 60s Just how long that childhood could last, 60s even mean these days? The concert even mean these is anyone’s guess. After all, the Rolling was an explosion of hits but then the Oils days? Stones are still touring in their mid-70s.

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Zealand 28 29 30 Legal 31 32 Crossword 33 34 Across Down 1 Shut out of small houses (4) 1 A 22 30 might love clowns as SET BY MĀYĀ 3 A type of rugby and a type of lilly comedic (5,6,6) returned to a work of 10 (5,7) 2 “Drink in Atom Bomb” a 22 30? (7) 11 Smack beginners over opening, 4 See 19 Across raising former currencies (7) 5 Egghead’s wheels won French M A K E R G A S R A S T A (9) (8) A A U A E I H S 12 Holiday works its charms dish O A R S M A N E N G L I S H 13 Instruction to broker: forment 6 Supreme Leader taking refuge on R A M D I H H E chaos (4,5) island (4) I R O N Y H N T I T A N K K I N G O Z 15 Butler’s place to drop hot right 7 Like Molière’s Harpagon, man is M U E S L I I E N O U G H half back before this time (3,3) early, I’m told (7) M S U M M A A 17 22 artist and musician taking no 8 A bouquet from the Empire? (5,4) P E T E R S B R E M A N D E E B I L L N drugs? (3) 9 A 12 30 about the joys of M A N I A I O V O T E S 18 I tow Harry, magically capable of computer programming? (3,1,9,4) O A C N G O O E (9) (8) W I N S T O N J A C I N D A flight 10 Ran a work by this 22 30 14 E T O E A A Y T 19/4 Welshman - not English - 14 He manages unsecured creditor R I S E R D O M L A M P S hesitates by proprietors (6) (8) 20 At home position, for example (8) 16 An insubstantial case found in Solution to October 22 Yes, European Windows ME “The Wizard of Oz” (8) 2017 crossword finally to become Asian!(8) 21 Tiger seen running on African Across: 25 Fish is playing music backwards (3) plain (9) 1 Maker, 4 Gas, 6 Rasta, 9 Oarsman, 26 Hoot heard by master of 23 This could be the type of 10’s 10 English, 11 Irony, 12 Titan, business in Queensland (9) throne, and a bench may be 13 King, 15 Muesli, 16 Enough, 27 Oddly quit sex life for a 12 30 (3) diminished (8) 18 Summa, 19 Peters, 22 Remand, 28 Had no unassuming characters, 24 Divinity’s gone downhill, I hear; 24 Bill, 26 Mania, 27 Votes, 29 like the meek who are blessed? (6) it appeared in many 22 30s (8) Winston, 30 Jacinda, 31 Riser, 29 Finn lazed, drunk on Californian 26 Clap tooth tips on the bottom (7) 32 Dom, 33 Lamps wine (9) 27 Circling journalist breathing his 31 Grind book in place of last (7) Down: Yorkshire’s trouble (9) 30 Flick out of fulfilment(4) 1 Maori, 2 Karaoke, 3 Rummy, 32 Italian 30 14 was overcome in 32 Agency employing female 4 Gandhi, 5 Seeing, 6 Right On, one (7) attracted to either sex (3) 7 Shihtzu, 8 Ashen, 13 Kiss, 14 Nimbi 33 It came, roughly, to hold two 15 MMP, 16 Earl, 17 Had, 20 Tenants, animals in the style of “its body brevity, 21 Reactor, 23 Antonym, 24 Binned, and wit its soul” (Coleridge) (12) 25 Logjam, 26 Mower, 27 Vocal, 34 Stare impertinently at Shrek after 28 Seats swapping hands (4)

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About those new robes…

What new robes? So why the change? The ones the members of the Supreme Court judiciary wore The Judicial Office for Senior Courts to the opening of Parliament last month. says the new robes have been adopted to reflect New Zealand traditions and You mean the gorgeous but over-the-top history and the aspirations with which red robes and full wigs are no more? the Supreme Court was established by They’re gone. The scarlet woollen gowns (known as the “Reds” Parliament in 2004. The new gown is the in the judicial robing room) along with the full-bottomed wigs same design used in the UK Supreme were introduced as ceremonial wear for judges of the High Court ceremonial dress, but instead of Court in the 1940s. The “where Britain goes, we go” mindset a traditional English design, it features of the time meant we copied the attire worn by the judges of a stylised kauri cone and leaves in the the High Court of England and Wales. They’re not even worn black on black weave, to represent New by the UK Supreme Court judges now – they wear a black Zealand and the shelter of the law. Our damask robe embellished with gold and with a Supreme Court distinctive heritage under the Treaty logo (if that is the correct term) embroidered at the yoke. of Waitangi is reflected in a poutama pattern trim in red, black and gold. But our Supreme Court and Court of Appeal Embroidered shoulder wings feature judges don’t wear wigs or robes… the three baskets of knowledge of Māori The new robes are for ceremonial occasions. While High Court tradition set in fern fronds, “represent- judges wear a black legal gown, the Supreme Court and Court ing the common law method which is of Appeal judges (from 1 July 2011) have been wigless and to work with knowledge of the past and gownless when sitting in court. an eye to knowledge of the future, while adding the insights of the present when responding to the needs and questions of today.” Is this just for the Notable Quotes Supreme Court? No … well, at the moment. “Initially the robes will be worn by Judges of the ❝ Mr Joyce MP became a New Zealand citizen by descent by virtue of s 7 of the [British Nationality and New Zealand Citizenship] 1948 … Act, which provided that a person born after its commencement is a New Zealand citizen by descent if his father was a New Zealand citizen at the time of his birth. Mr ❝ I don’t wish to criticise these professionals; they do a great Joyce MP’s acquisition of New Zealand citizenship by descent job … but it appears to me, having performed this role did not depend upon registration or other formality. ❞ for many years, that that’s a delay in the order of which — The High Court of Australia decides that Australian Deputy I have never heard before and it’s unacceptable. ❞ Prime Minister Barnaby Joyce – born in Australia 20 years — District Court Judge Michael Crosbie comments in Dunedin after his New Zealand-born father moved there, and with District Court after hearing that it would take the Southern an Australian mother – is incapable of being chosen as a District Health Board 10 weeks to prepare a report under member of Australia’s House of Representatives: Re Joyce the Criminal Procedure (Mentally Impaired Persons) Act [2017] HCA 45 at [109]. 2003.

❝ Luckily she said yes, we both reconfirmed with each other ❝ I hadn’t been here until I came for the interview. But I like when we were on the ground. ❞ Whanganui. I think it’s good being in a smaller town and in — English lawyer Chris Jeanes who proposed to his partner a smaller firm because I’m doing lots of different stuff.❞ Casey Kinchella when their Air Asia flight from , — Newly admitted Whanganui lawyer Claire Middleton gives Australia to Bali suddenly plummeted over 20,000 feet a thumbs-up to her choice of location and employer, before recovering. Wilkinson Smith.

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Ravenscroft. Established in 1689, they’ve been making wigs (100% horsehair and “treated according to UK health reg- ulations”) and gowns for a long time. One for each judge? The Judicial Office says the gowns are the property of the Court and are handed down from one judge to the next on retirement. What should lawyers wear on ceremonial occasions? The historic costume of horsehair wig, black gown and bands that lawyers wore in New Zealand senior courts was dispensed with in 1996 and became optional for ceremonial occasions. The alternative dress for those occasions is Supreme Court on ceremonial occasions including, for example, a black gown over business attire. Many lawyers feel they the swearing in of new judges and admission of barristers to need to be togged up in the full costume to take their place the bar. [And, of course, for the annual opening of Parliament]. at the bar – this has led to dwindling numbers taking their Over time they will be rolled out for use in the Court of Appeal place at the bar for those ceremonial occasions. The black and High Court,” the Judicial Office says. gown over business attire is now more common and lawyers are encouraged to adopt that style and to take their place Who designed them? at the bar rather than sit in the public gallery for ceremonial A Wellington artist, Ros Bignell. A bit like our court system, occasions. What are not allowed are variations and mix and Ros originates from England having migrated here 23 years match in costume – for instance, a wig and gown worn over ago. business attire only. This has been the subject of guidance Oh, and the gowns were made in London by Ede and from the Chief High Court judge in the past.

❝ Show me the money. ❞ ❝ Ah, it’s a bit like playing competitive sport, you know? At — At a sentencing hearing in Wellington District Court, Judge the time you’re in there, it’s really horrible and you don’t Ian Mill asks Jason Brown, convicted of stealing $128,611 know what you’re doing, then you come out the other from his employer, about his promise to pay $6,000 to side, breathe a sigh of relief and think it wasn’t that bad. the court in reparation. However, after sentencing was ❞ delayed for several days to allow the funds to clear, it was — Semi-retired and living in Tauranga and Spain, Ross Burns discovered that Mr Brown had gambled the money away responds to a Bay of Plenty Times question on whether in the interim. he misses being in court.

❝ It’s a catalogue of sexual harassment, stalking, social media ❝ If y’all think I did it, I know that I didn’t do it so why don’t abuse, sexual innuendos, verbal sexual abuse, touching, you just give me a lawyer dog cause this is not what’s up. sexual assaults, requests for sex, cover-up, isolation and ❞ bullying. ❞ — An ambiguous or equivocal reference that did not constitute — Scottish human rights lawyer Aamer Anwar reports that an invocation of counsel which warranted termination of the women at all levels of the Scottish Parliament have been police interview of the defendant, the Louisiana Supreme subjected to sexual harassment. Court has decided.

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