At The Bar March 2018
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Mercedes-Benz Auckland 2 Great South Road, Newmarket, Auckland, 09 529 3888, www.mbauckland.co.nz YOUR ASSOCIATION p9 4 From the President – Clive Elliott QC 8 Gender Equitable Engagement and Instruction Policy – Launch of a new policy 12 Anti-Money Laundering and Countering Financing of Terrorism Act - its application to barristers 17 New Members – recently joined members 19 NZBA’s Mentoring Programme – making the most of mentoring 37 DragonDictate: an Essential Tool – a new member p19 benefit to improve your workflow
LEGAL MATTERS 15 Leave to Withdraw as Counsel – the lessons from Burgess v Monk 18 Appointing Amicus Curiae and Standby Counsel in Criminal Trials – Fahey v R 21 A Performance Approach to Advocacy – how acting training can help at the Bar p23 23 Old but venerable – Auckland High Court and Dunedin Courts 26 The Cutting-Edge Court – Christchurch Justice Precinct
PRACTICE AND LIFESTYLE 27 The End of Retirement as We Have Known it – is retirement an outmoded concept? 31 Residential Property as an Investment – is property p39 the answer? 34 Digital Marketing – making the most of your online opportunities 39 PlanetWine – a new member benefit offer 42 Petrol Heads' Corner – David O’Neill on the Range Rover Vela
p7 Cover photo: Re-opening of the Dunedin High Court - the Otago Bench and Bar
The views expressed in the articles in this publication may not necessarily be the views of the New Zealand Bar Association.
EDITORIAL COMMITTEE Jacqui Thompson NEW ZEALAND BAR David O’Neill - Chair (Contributions & Advertising) ASSOCIATION Tel: +64 7 839 1745 Tel: +64 9 303 4515 Tel: +64 9 303 4515 Email: [email protected] Email: [email protected] Fax: +64 9 303 4516 Melissa Perkin Email: [email protected] DESIGN AND LAYOUT BY Tel: +64 9 303 4515 Web: www.nzbar.org.nz Kirsten McLeod Email: [email protected] PO Box 631, Auckland 1140 Tel: +64 9 834 2224 From the President Clive Elliott QC*
Tēnā koutou.
2018 has started at a rapid rate and its hard to believe we are already a quarter of the way through the year. There seems little time to reflect and look forward, but recent events have demonstrated how important it is to reflect on what has been happening and on what we need to do to effect change.
Later on this column, I comment in more depth about the recent discussions following revelations of harassment in the profession. I want to stress how seriously we view these issues. As a legal organisation, our natural response is one of caution and a focus on due process and fairness, determining the facts and considering the appropriate response. But this does not in any way detract from the recognition that there is a problem and that it must be properly addressed. More about this later.
Anti-Money Laundering and Countering Financing of Terrorism Act: From 1 July 2018, the Anti-Money Laundering and Countering Financing of Terrorism Act (the Act) will apply to any involvement that a barrister has, in the ordinary course of the barrister’s business, in advising on, documenting or effecting a transaction involving real property. Paul Radich QC outlines the issues in an article on p12 of this issue. The Bar Association is applying to the Minister of Justice under section 157 of the Act for an exemption from the requirements of the Act in circumstances in which a barrister acts on direct instructions from an instructing solicitor or the Crown. Until that is in place, barristers will need to be careful to comply with the Act's requirements.
Mentoring On 8 March 2018 (International Women’s Day) the NZBA relaunched its mentoring programme. Mentoring is critical to the development of a healthy and well functioning profession. We also see it as having an increasingly important place as we face the future challenges of automation, including the development of expert systems for legal research and information; as well as increased pressures brought about by a shrinking legal market.
The Association also recognises that without diversity the profession will face an increasingly uncertain future. For this reason, we are focusing more of our attention on encouraging members from a wider range of backgrounds to become mentors, and to seek mentoring. I would urge you all to view the mentoring pages on our website, and if you have any questions to contact our Executive Director, Melissa Perkin at [email protected]. For more information, refer to the article on p19 of this issue.
Council activities We ended 2017 not just with our Christmas functions, but with a special sitting to mark the closing of the old Christchurch High Court. Since the first earthquake in 2010, the people of Canterbury have faced hardship and uncertainty. The building of a new Justice precinct was seen as an anchor project in the rebuild. It was to be the beginning of a new era.
Many felt the poignancy of moving from the old Court into the modern purpose-built surroundings of a complex that housed not just courts, but the executive and emergency service agencies. The final sitting stressed the need to retain the lessons from history and the traditions that tie us to the rule of law, which is fundamental to what we do in the profession.
In the New Year, there was a special sitting to mark the opening of the new justice precinct. NZBA Vice-President (South Island), Jonathan Eaton QC, spoke at the opening of the new Justice Precinct.1 There is more about this later in this issue (p22) but I would like to take a moment on behalf of the Council to wish the judiciary, the Court staff and the Canterbury Bar all the best in their new accommodations.
4 www.nzbar.org.nz Another landmark moment was the reopening of the historic Dunedin courthouse. The 116 year old building was closed in late 2011 after it was deemed to be an earthquake risk. After some deliberation, the Government invested $30 million in its rebuild. I was privileged to speak at the reopening in January this year and to join the procession through the streets of Dunedin with the rest of the legal fraternity.
As I commented at the time2, courts like this are so much more than bricks and mortar. Not only must the courts be open to the public, but they themselves must remain open and be properly functioning. All too often today, we hear troubling reports of courthouses around the world being closed. For example, in England and Wales, in the last six years, no less than 250 courts have been closed. In this regard, it is appropriate, to recognise and applaud the government for funding the important remedial work on this priceless building.
I also want to mention the 150th anniversary sitting at the Auckland High Court. The fondness with which this building is held by the profession was demonstrated by the large numbers of practitioners who attended the sitting. Again, there is a fuller article about the court later in this issue, and the full text of my address at the ceremonial sitting is available on the NZBA website.3
Ceremonies were held to welcome three new members of the High Court bench this year. Paul Radich QC spoke for the NZBA at Associate Judge Johnston’s swearing-in ceremony in Wellington. Associate Judge Johnston served on the NZBA Council from 2006 – 2011. Kate Davenport QC addressed the court at Justice Powell’s swearing-in ceremony, and Simon Foote spoke on behalf of the NZBA at Associate Judge Andrew’s swearing-in ceremony, both which were held in Auckland.
We are 30! It’s equally hard to believe but 2018 marks the 30th anniversary of the New Zealand Bar Association. This year’s Annual Conference, to be held on 21 – 22 September in Rotorua, acknowledges this anniversary. Its theme is "The New Zealand Bar Association at 30: Wisdom from the Past, Realities of the Present, and Ambitions for the Future”. We will be circulating more information about this important conference shortly and are looking forward to seeing many of you there.
Committee News As mentioned, our Mentoring Committee has been extremely busy with a relaunch of our mentoring program and the hosting of an event at Bankside Chambers in Auckland. Updated guidance materials are now available on our website as outlined in an article on p19 of this issue. I encourage you all to consider the benefits of mentoring, or being mentored.
The Bar Care Sub-Committee is aimed at being there for NZBA members in times of emotional need. There are times when things get too much for any of us and there are times when having an independent but objective view point can be of assistance. The Bar Care Committee Chair, David O’Neill, reports that the committee has been under-utilised. He encourages anyone who needs guidance or assistance or who is trying to deal with a matter that is proving to be difficult to contact him. If you have that “skeleton in the closet” or a file that has become “too hard” - we all have them from time to time – then please contact David via the NZBA Secretariat. It doesn’t cost you anything other than a phone call and a bit of time.
A big vote of thanks goes to the members of our Gender Equity Committee. They have been tireless in their efforts to launch the Gender Equitable Engagement and Instruction Policy. The policy requires signatories to commit to increasing the proportion of women lawyers leading court proceedings and other contentious matters. Several leading corporate clients and law firms have committed to the policy, which is being jointly promoted and managed by the New Zealand Bar Association and New Zealand Law Society. For more information on this excellent initiative, please refer to the article on p8 and on our website.4
1Eaton, J NZBA address at the ceremonial sitting of the opening of the no.1 High Court in Christchurch https://www.nzbar.org.nz/news/nzba-address- ceremonial-sitting-opening-no1-high-court-christchurch-31-january-2018 (accessed 11/03/2018) 2Elliott, C Address on the occasion of the Re-opening of the Dunedin Court on 26 January 2018 https://www.nzbar.org.nz/news/address-president-new-zealand- bar-association-reopening-dunedin-court-26-january-2018 (accessed 11/03/2018) 3Elliott, C Auckland High Court 150th Anniversary Sitting Address https://www.nzbar.org.nz/news/auckland-high-court-150th-anniversary-sitting-address-clive- elliott-qc (accessed 11/03/2018) 4https://www.nzbar.org.nz/news/gender-equity-increasing-lead-roles-women-lawyers Objective 3 of the Association’s Strategic Plan is to promote diversity and equality at the bar and the wider legal profession. We held a meeting of an informal diversity working group in late February. The group met to consider some fundamental questions:
1. Is the NZBA representative/inclusive? 2. What are the barriers for entry to the Bar? 3. What is the progression in the Bar? 4. Is it a congenial place to work? Clockwise from Left: Garry Williams, Yvonne Wang, Lesley Wan, Jenna Johnson-Aufa'i, Frank Godinet, Edith Te Whata, Melissa Perkin, 5. What are the issues NZBA is trying to tackle? Jenny Cooper QC 6. Does a lack of visibility of law as a career option stop people trying law as a career? 7. Does the Bar do anything to sell itself to universities?
The group was also fortunate to have as its guest, Lesley Wan. Lesley is visiting from the United Kingdom and has had extensive experience, including in developing Lloyds Bank Group’s Breakthrough Mentoring Programme. We appreciate Lesley’s willingness to share her insights with us.
We welcome a new member to our Training Committee, Auckland barrister Sarah Wroe. She replaces Lisa Hansen, who has moved from training to concentrate on her roles in mentoring, gender equity, annual conference and our recently formed Management Committee. We look forward to working with Sarah.
Complaints of Harassment Finally, I come to an issue of crucial importance to the legal profession, and indeed society as a whole. Over the last few weeks, revelations of the profession’s response to complaints of sexual abuse and harassment have demonstrated that there is a serious problem that calls for concerted, immediate action. This issue is not isolated to one firm or one individual or indeed the legal profession, as recent events show. As stated in a recent article by our President-Elect, Kate Davenport QC, the time has come to deal with this issue5.
In our recent press statement on the subject6, the NZBA made it clear that it has a zero-tolerance approach to all forms of abuse, harassment and bullying within the profession.
We remind all lawyers of their obligations under the rules, including the requirement to treat other lawyers with courtesy and respect, and to report misconduct to the Law Society. The NZBA is committed to eliminating harassment and discrimination at the Bar and ensuring professional conduct by all barristers. This starts with individual standards of behaviour, but includes workplace culture and policies. The newly established NZBA Conduct and Values Committee has been tasked with raising awareness about what constitutes harassment and discrimination, suggested policy guidelines for the Bar and providing information and support for people who are affected. The NZBA will be participating in the working group on sexual harassment reporting announced by the Law Society on 1 March 20187. We fully support this initiative and intend to play an active part in the working group’s efforts.
5Davenport, K “#timesup for the legal profession (updated 5 March 2018)” https://www.newsroom.co.nz/@the-interns--the-law-firm/2018/02/27/92817/timesup- for-the-legal-profession (accessed 6 March 2018). 6New Zealand Bar Association “Media Statement re Sexual Misconduct Complaints” https://www.nzbar.org.nz/news/nzba-media-statement-re-sexual- misconduct-complaints (accessed 6 March 2018). 7New Zealand Law Society “Law Society announces working group to focus on sexual harassment reporting” http://www.lawsociety.org.nz/news-and- communications/news/law-society-announces-working-group-to-focus-on-sexual-harassment-reporting (accessed 6 March 2018).
6 www.nzbar.org.nz The Wider Issues – Gender, Diversity and te Reo and Tikanga Māori We have received feedback from several people that they would like to see the NZBA make a stronger statement that this current crisis is not just a workplace safety issue, but also a wider gender issue. We accept that there is an overlap with gender, as demonstrated by statistics on the reporting of sexual harassment.
However, behaviour such as harassment and bullying exists wherever there is a power imbalance. Clearly, that imbalance currently exists in respect of gender and diversity. With this in mind, the NZBA Council has directed its committees to consider a multipronged approach in developing methods for redressing the power imbalance and lack of diversity.
As mentioned, our Gender Equity Committee is focused on initiatives to empower women in the work place, to ensure that the power balance and culture is more representative of women. It is critical that the joint Gender Equitable Engagement and Instruction Policy gains widespread adoption and I encourage you all to read it and support it.
In the same way, our diversity working group is working on measures to make the Association and the profession more inclusive and accepting of minorities. We are attempting to encourage people from a wider range of backgrounds to join our committees and mentoring programme, and to help all members succeed at the Bar. I am shortly to attend the World Bar Conference in South Africa. There will be several sessions on gender and diversity both within the profession and the judiciary, which I hope will be useful to us in our work on these issues. I will report back in the next issue of At the Bar.
Finally, I need to acknowledge the steps taken by the Senior Courts to increase the use of te reo Māori. Our Training Committee has received a proposal for training members of the Bar in tikanga Māori and the use of te reo and is considering how this can be delivered to our membership throughout New Zealand at a reasonable cost.
Please continue to give us feedback on what you consider to be useful initiatives and priorities in addressing the issues that are affecting the independent bar or hindering its development. Your feedback is important to us.
*Clive Elliott QC is the President of the New Zealand Bar Association. If you have any questions or comments about this column, please email our Executive Director, Melissa Perkin at [email protected].
Auckland Bench and Bar at 150th Anniversary Sitting.
www.nzbar.org.nz 7 Welcoming the Gender Equitable Engagement and Instruction Policy Jenny Cooper QC and Gretta Schumacher *
In 2018, women constitute the majority of practising lawyers, and yet represent fewer than 35% of law firm directors, fewer than 24% of partners in law firms, and only 18.7% of QCs. Can the recently launched Gender Equitable Engagement and Instruction Policy address these woeful figures?
A global conversation about gender issues has ranks of QCs, these are clearly positions which been sparked in the last 12 months by the #metoo provide higher levels of status and influence within and #timesup movements. As that conversation the profession. In particular, law firm partners and has reached the legal profession, it’s clear that leaders at the bar play a key role in defining the sexual discrimination, including both conscious values and culture of our profession. The under- and unconscious bias, still affects women in representation of women in these leadership roles the law. Nine years after the New Zealand Bar matters. Association (NZBA) first launched an Equitable Briefing Policy in 2009 it still feels as though there Happily, there is reason for optimism. In is a long way to go to achieve the goal of gender December last year, the NZBA and the New equity. Zealand Law Society jointly launched the Gender Equitable Engagement and Instruction In 2018, women constitute the majority (just) of Policy. The Policy includes a specific target for practising lawyers. But despite this, women still at least 30% of lead roles in court proceedings, make up fewer than 35% of law firm directors, arbitral proceedings and major regulatory fewer than 24% of partners in law firms, and investigations to go to women barristers or only 18.7% of Queen's Counsel. Although not all solicitors. Crucially, it also imposes reporting lawyers (whether male or female) necessarily obligations on Policy adopters to track whether aspire to be directors or partners or to join the the target is being met.
8 www.nzbar.org.nz One of the most encouraging features of the new 7 years now. Doubtless we can do better and Policy is the widespread and enthusiastic support in adopting this Gender Equitable Engagement it has received from clients, firms, and the bar. and Instruction Policy we are redoubling The Policy adopters at the launch date included our commitment. We like the Policy’s clear a number of major law firms, namely Anderson expression delineating “why” from “what” – Lloyd, Bell Gully, Buddle Findlay, Chapman Tripp, that allows Policy adopters, whether clients DLA Piper New Zealand, Kensington Swan, or lawyers, to understand why we pursue Minter Ellison Rudd Watts, Russell McVeagh equitable engagement practices. So, the and Simpson Grierson. Initial Policy adopters connection between the Policy’s functional/ also included major corporates such as ANZ, measurable part (a target of at least 30% of Auckland Airport, Chorus, Contact, Countdown, litigation lead by women) and the ambition Fonterra, Lion, Meridian, Samsung, Spark, Stuff, that lies behind it is a critical part of the Policy. Watercare, and Westpac. Crown Law was also The ambition to drive cultural change in the an initial adopter and Shortland Chambers led profession to deliver greater diversity, to the way as the first chambers to adopt the Policy, correct the under-representation of women in with Bankside Chambers, Clifton Chambers and lead roles (especially in commercial litigation), Richmond Chambers following thereafter. to support the development progression and retention of women in firms and at the bar is One of the reasons for the Policy’s success in something we are proud to sign up to.” attracting support is that it reflects the values that many firms and clients are seeking to promote While many of the initial Policy adopters are large within their own organisations. Speaking about firms and corporates, it is important to be clear ASB’s reasons for recently becoming a Policy that the Policy is not just for them. It is aimed at adopter, General Counsel and Company Secretary all forms of litigation and at firms and clients of all Graeme Edwards commented that: “The Policy’s sizes and in all regions. Everyone is encouraged objectives are aligned with ASB’s values and our to sign up. This includes members of the bar - own diversity and inclusion initiatives. While ASB barristers have an influential role on the distribution already regularly instructs women lawyers in lead of work, both at the bar and within firms. roles, adoption of the Policy is a tangible way of evidencing our commitment to diversity and Explaining why Shortland Chambers chose holding ourselves accountable.” to become a Policy adopter, its Chair, Daniel McLellan QC, said: Crown Law is another key supporter of the Policy. Asked about Crown Law’s reasons for supporting “The decision to support this initiative was the Policy, the Solicitor General, Una Jagose QC, an easy one for Shortland Chambers. It explained that: reflects our own ambition to continue to build a membership that reflects society. Gender “Solicitor-General Dr David Collins QC (now equity is just one part of this, but there is an Collins J) first adopted the NZBA’s equitable immediate need to recognise that women briefing policy in 2011. Crown Law has had a are significantly under-represented in senior policy of working to develop diversity of the bar roles in many firms and barristers’ chambers, through its external briefing practices for some and in major litigation. Despite the efforts of practitioners and clients to remedy the imbalance, progress has been slow.
This strong and creative initiative by the NZLS and NZBA, with the support of many lawyers and consumers, is welcome and Shortland Chambers was pleased to be the first chambers to endorse it.”
The NZBA encourages all members to adopt the Policy. We look forward to supporting all our members, chambers, colleagues and clients in adopting and administering the Policy. For more information about the Policy see our FAQs below, or the NZBA website.
www.nzbar.org.nz 9 FAQs about the Gender Equitable Engagement and Instruction Policy
1. What types of legal work does the Policy 3. Who has adopted the policy so far? apply to? Policy adopters at the launch date were: ANZ, The Policy’s target of at least 30% (calculated Anderson Lloyd, Auckland Airport, Bell Gully, either by number or by value of fees) of leading Buddle Findlay, Chapman Tripp, Chorus, Contact, roles going to women applies specifically to court Countdown, Crown Law, DLA Piper New Zealand, proceedings, arbitral proceedings and major Fonterra, Kensington Swan, Lion, Meridian, Minter regulatory investigations. This includes criminal, Ellison Rudd Watts, Russell McVeagh, Shortland civil, and specialist court proceedings and Chambers, Simpson Grierson, Samsung, Spark, investigations. Stuff, Watercare, and Westpac.
The goal of ensuring the fair allocation of work is Since the launch, others have been added to of course equally applicable to all legal work, not the list including ASB, Air New Zealand, the just litigation. With this in mind, NZBA and NZLS Broadcasting Standards Authority, Wilson Harle, intend to review the scope of the Policy as part of Bankside Chambers, Clifton Chambers and a review of the Policy as a whole, to be carried out Richmond Chambers. within 3 years. We hope to broaden the list of policy adopters 2. Why is the target only 30%? over time to include smaller and mid-sized firms, There are several reasons why 30% was adopted barristers, and as many public and private sector as the initial target (noting that it is to be reviewed users of legal services as possible. within 3 years with a view to increasing it to 35%): 4. Can barristers sign up as Policy adopters? • First, there is still apprehension in some Yes, and we encourage them to do so, either quarters about having any target at all. We individually or through their chambers. While wanted to get widespread support for the Policy barristers may not generally instruct other lawyers, by having an achievable initial target which can they can implement and support the Policy in be increased over time, rather than set one that other ways, including: could be portrayed as unrealistic and risk the Policy failing to get traction. • Considering and including female lawyers (either solicitors or barristers) when asked to • Secondly, while we don’t yet have data on the give recommendations and referrals to clients; issue, we suspect that achieving the target would be a significant improvement on the • Using gender equitable selection processes to status quo. NZBA is currently undertaking a fill roles within chambers; and research project, generously funded by The Law Foundation, on the gender ratio of senior • Providing opportunities for the development of and junior counsel appearing in the Court of female lawyers, including by giving speaking Appeal and Supreme Court. This will shed more roles to women appearing as junior counsel in light on the current situation and will help us to court and arbitral proceedings whenever it is make appropriate adjustments to the target practicable to do so. The recent announcement figure when the Policy is reviewed. by the Court of Appeal encouraging greater participation of junior counsel in hearings is a • Thirdly, while approximately 50% of lawyers are welcome step in this regard. women, women comprise only 39% of barristers and 18.7% of QCs. While we want 5. What are the reporting obligations for that to change, it will take time – hence our aim Policy adopters? to steadily increase the target over time. Policy adopters are required to provide a confidential report to NZLS every two years. The • Finally, it is important to note that 30% is the format of the reporting is still being developed and target minimum not a cap. Figures above the will be different for clients, firms and barristers. target are certainly to be welcomed and encouraged. Clients will need to include information on the number of male and female lawyers engaged by
10 www.nzbar.org.nz them in relation to court proceedings, arbitral proceedings and major regulatory investigations. Why equitable That obligation will not apply to firms and barristers, but they will need to report on steps they have taken to implement and support the Policy. briefing matters
6. Does the Policy apply to internal The lack of women in the higher ranks of instructions to in-house counsel? the profession affects both those already in Yes. Instructions to in-house counsel are the profession and those first entering it. included in just the same way as instructions to external counsel. Therefore, where a female In an AUT study, when asked about their in-house counsel takes the lead role in a court prospective careers in a law firm, 85% proceeding, arbitral proceeding, or major regulatory investigation, that will count towards of female respondents reported they her employer meeting the 30% target. Non- perceived barriers to their progression in legal services and instructions to non-lawyers their current firm. Only 20% of females (e.g. investigators, experts or managers) will not (compared to 40% of males) considered count and are not part of the Policy targets or they had a moderate level of opportunity monitoring obligations. available to them. 7. How can I find a female barrister? For a quick way to remind yourself of all the In 2016, a Law Society survey of junior talented women practising at the bar and where lawyers indicated that new female lawyers to find them, you can search for female barristers considered overwhelmingly that it was using the “Find a Barrister” search page on the more difficult for women to progress in NZBA website. The “Advanced Search” menu the law than men. A survey of 531 female enables you to search by gender. Or ask around lawyers in their first five years of practice for recommendations. found that 67% felt that their gender had 8. How can I sign up or help to promote the a bearing on their prospects in the legal Policy? profession. To adopt the Policy, you simply need to notify NZLS by email to [email protected]. This perception by female lawyers of a NZLS and NZBA publish the names of all Policy lack of opportunities for them to progress adopters and adopters are also free to publish in their chosen career has a negative the fact that they have adopted the Policy. We impact on the lives of many individual encourage all NZBA members to adopt the Policy women, and also on the profession as a and to promote it to their colleagues, instructing solicitors, and clients. A full copy of the Policy is whole through the loss of talented female available on the NZLS and NZBA websites, lawyers who leave the profession; the www.lawsociety.org.nz and www.nzbar.org.nz. loss of female lawyers who never enter certain areas of the law because of real or For more information feel free to contact any perceived barriers; and the under-utilisation member of the NZBA Gender Equity Committee. of talented lawyers because of inequity in We welcome all feedback, questions and briefing practices. These are the problems comments on the Policy. the Policy seeks to address. Gender Equity Committee members: Jim Farmer QC (Co-chair) (Sources: https://www.nzlawyermagazine. Kate Davenport QC (Co-chair) co.nz/news/women-lawyers-now- Paul Radich QC outnumber-men-in-nz-245958.aspx; Jenny Cooper QC https://www.radionz.co.nz/news/ Karen Feint national/295517/equal-number-of-female,- Simon Foote Lisa Hansen male-lawyers-for-first-time.; https://www. Lara Mannis lawsociety.org.nz/law-society-services/ Jane Meares women-in-the-legal-profession/by-the- Gretta Schumacher numbers).
www.nzbar.org.nz 11 Anti-Money Laundering and Countering Financing of Terrorism Act: Application to Barristers By Paul Radich QC and Dr Derek Johnston*
An overview Transactions involving estates, interests or From 1 July 2018, the Anti-Money Laundering and rights and real property Countering Financing of Terrorism Act (the Act) Subparagraphs (a)(vi)(A) and (B) of the definition will apply to any involvement that a barrister has, of “designated non-financial business or in the ordinary course of the barrister’s business, profession” relate to transactions (within the in advising on, documenting or effecting a meaning of s 4(1) of the Real Estate Agents Act transaction involving real property. 2008) involving real property. Subparagraph (A) captures a barrister who engages in (or gives Unless the barrister chooses to avoid becoming instructions on behalf of a client to another involved in work of that sort (for example, by person for) any “conveyancing” to effect a leaving work of that nature to their instructing transaction involving real property. solicitor, or to another solicitor) he or she will be subject to the compliance obligations in the Act. The term “conveyancing”, as defined in the Lawyers and Conveyancers Act 2006, involves The Bar Association is applying to the Minister of legal work carried out for the purpose of effecting Justice for an exemption from the requirements or documenting any transaction or prospective of the Act in circumstances in which a barrister is transaction involving an estate, interest or right in acting on instructions from an instructing solicitor any real property. or directly from the Crown. But, unless and until the exemption is in place (or if it is in place and a Subparagraph (B) captures a barrister who, in barrister is acting on direct instructions), barristers the ordinary course of his or her practice, engages need to be aware that it is possible that aspects of in or gives instructions on behalf of a customer their practice will be subject to the Act. to another person for a transaction involving real property. It seems unlikely a barrister would, in the The application of the Act ordinary course of his or her practice, personally The Act will apply to “law firms” on 1 July 2018. A engage in any real estate transaction or give “law firm” is defined in s 5 of the Act to include a instructions on behalf of a client to another person barrister. for a real estate transaction. However, if a barrister were, in the ordinary course of their practice, to give However, under s 6(4)(c), the Act applies to a instructions on behalf of a client to another person barrister only to the extent that the activities (for example a real estate agent or a nominee for carried out by the barrister are described in the the client) for a real estate transaction, that will definition of “designated non-financial business likely amount to the conduct of a designated non- or profession” in s 5 of the Act. financial business or profession by the barrister and Under s 5, (as relevant here) a “designated non- be caught by the Act. financial business or profession” means a barrister Consequently, any involvement by a barrister, in who, in the ordinary course of business, carries out the ordinary course of their business, in: one or more of the activities that are then listed. (a) advising on or documenting a litigation The Bar Association has considered the settlement or other transaction involving application of the s 5 activities with care and real property (for example, a settlement of has obtained, and had peer-reviewed, advice on a matrimonial property dispute providing the point. As a result, its position is that, of the for the transfer of the matrimonial home listed activities in the definition, only those set from both parties to one or the other spouse); out below are of potential relevance to a barrister and, of them, only the first seems particularly (b) becoming otherwise engaged in any legal likely to have any application to a barrister. work associated with effecting or
12 www.nzbar.org.nz documenting any transaction involving real While at first blush this sounds to be a broad property; or category, the Act defines “transaction” to mean “any deposit, withdrawal, exchange or transfer of (c) giving instructions on behalf of a client to funds…”. Accordingly, the activities described in another person for a real estate these subparagraphs will only catch the activities transaction or to undertake any of the of a barrister where, in the ordinary course of activities in paragraphs (a) or (b) above, business, they engage personally in any actual would be likely to amount to the conduct deposit, withdrawal, exchange or transfer of of a designated non-financial business or funds or, alternatively, give instructions on behalf profession by the barrister and be caught of a client to another person to deposit, withdraw, by the Act as a result. exchange or transfer funds in connection with one of the activities in paragraph (a) or (b) above. Transfers of beneficial interests in land or Typically, it would be unusual for a barrister in the other real property ordinary course of their practice to be engaging Subparagraph (a)(vi)(C) of the definition would personally in the deposit, withdrawal, exchange capture a barrister who, in the ordinary course or transfer of funds and so, for this reason, a of their business, engages in the transfer of barrister is unlikely to fall within the scope of the beneficial interests in land for other real property activities described in these sub paragraphs. or gives instructions on behalf of a client to any other person to do so. If a barrister were, in the ordinary course of business, to give instructions to another person This subparagraph, unlike subparagraph (A), does on behalf of a client for the deposit, withdrawal, not capture a barrister engaging in “conveyancing” exchange or transfer of funds in connection in connection with the transfer of the beneficial with one of the activities in paragraph (a) or (b) interest in land or other real property. Consequently, above, that will likely amount to the conduct of a it is unlikely to bring a barrister within the scope designated non-financial business or profession of the Act when he or she is simply involved in the by the barrister and be caught by the Act. documentation of, or review or negotiation of the documentation for, the transfer of the beneficial Other activities interest in land for other real property. The definition of a designated non-financial business or profession also captures certain Under the Lawyers and Conveyancers Act other activities which are not generally undertaken (Lawyers: Conduct and Client Care) Rules 2008 (the by barristers. However, if a barrister were, in the “Client Care Rules”) a barrister may not hold valuable ordinary course of their business, to undertake property on behalf of others. Consequently, it seems one of these activities, that would also amount highly unlikely a barrister will, in the ordinary course to the conduct of a designated non-financial of their business, hold, or engage in the transfer business or profession by the barrister and be of, a beneficial interest in land or real property. If, caught by the Act. The relevant activities are: however, a barrister were, in the ordinary course of their practice, to give instructions on behalf of a (a) acting as a formation agent of companies client to any other person to transfer a beneficial or other legal persons or of a trust, interest in land or real property, that would likely partnership, charitable entity or any other bring the barrister within the scope of the Act. prescribed arrangement;
Other “transactions” (b) acting, or arranging for a person to act as, Subparagraphs (D) and (E) of the definition will a nominee director or nominee shareholder or trustee in relation to any company or bring within the AML regime any barrister who other legal person or in relation to a trust, engages in (or gives instructions on behalf of a partnership, charitable entity or other client to another person for) a “transaction” either: prescribed arrangement;
(a) on behalf of any person in connection with (c) providing a registered office or a business the sale, purchase or transfer of a address, a correspondence address, or an business, a company or other legal person administrative address for a company or a or trust, partnership or charitable entity; or partnership or for any other legal person, trust, partnership or other prescribed (b) on behalf of a client in connection with the arrangement, unless the office or address creation, operation or management of any is provided solely as an ancillary service to company or other legal person or trust, the provision of other services (that do not partnership or charitable entity. otherwise give rise to a designated non- financial business or profession).
www.nzbar.org.nz 13 Under the Client Care Rules a barrister may not documents and templates it has created should, receive or hold money or other valuable property if a barrister become subject to the Act, be used.1 for or on behalf of any other person. If, contrary to this prohibition in the Client Care Rules, a Alternatively, a barrister might choose, as a barrister were, in the ordinary course of their consequence of the potential application of business, to manage client funds (other than the Act in the ways described, to take steps to sums paid as fees for professional services), ensure that activities of the sort that might fall accounts, securities or other assets, that would within the scope of the Act are not undertaken also be caught by the Act. by them in the ordinary course of business. The barrister might, for example, ensure The net effect their instructing solicitor, or another solicitor, For these reasons, in the event that, in the looks after those aspects of their work that ordinary course of a barrister’s business, he might otherwise see them having involvement or she advises on, documents or is otherwise in advising on, documenting or effecting a involved in documenting a transaction involving transaction involving real property or otherwise real property or undertakes any other activity undertaking a designated non-financial business which constitutes a designated non-financial or profession. business or profession, then the Act is likely to apply to that work or activity. An exemption has been sought The Bar Association is applying to the As a consequence, the barrister will, in relation Minister of Justice under s 157 of the Act for an to that work or activity, have to meet the Act’s exemption from the requirements of the Act in compliance obligations which, at a high level, will circumstances in which a barrister acts on direct require the barrister to: instructions from: (a) conduct a written assessment of the risk of (a) an instructing solicitor; or money laundering and financing of terrorism that he or she may reasonably (b) the Crown. expect to face in the course of his or her practice (s 58); If the exemption is granted, then the Act will only apply to a barrister if he or she was acting on (b) keep that risk assessment up-to-date (s 59); direct instructions under rule 14.5 of the Client Care Rules on work which, in the ordinary course (c) create a written AML/CFT programme of business, would see them being involved based on the risk assessment (ss 56(1) and in advising on, documenting or effecting a 57); transaction involving real property. (d) appoint an AML/CFT compliance officer to The exemption process, which will result in the maintain the AML/CFT programme creation of a legislative instrument, will take (s 56(2) and (3)); several months to be completed and the Bar Association will advise members of its progress (e) prepare and provide to his or her AML/CFT during that time. Members will be notified when supervisor (the Department of Internal the exemption application, which describes more Affairs or another supervisor prescribed fully the application of the Act to barristers, is for the purpose (s 130)) an annual report available on the NZBA website. on the risk assessment and AML/CFT programme (s 60); If any activities of a barrister fall within the scope of the Act then, until such time as any exemption (f) have the risk assessment and AML/CFT is obtained, he or she will need to comply fully programme audited by an external auditor with the requirements of the Act. Both NZLS at least every two years (s 59(2)); and ADLS are providing detailed training on the (g) undertake customer due diligence and requirements for compliance with the Act. verification obligations (Subpart 1, Part 2); If members have any questions about or comments on the content of this article or the (h) maintain prescribed records (ss 49 – 52); exemption, they are asked in the first instance to (i) make suspicious activity reports (s 40) and email them to the NZBA Executive Director, at comply with Prescribed Transaction [email protected]. Reporting obligations (subpart 2A, Part 2). * The NZBA Council would like to express its The Law Society’s guidance on AML/CFT appreciation to Paul Radich and Derek Johnston for compliance and the specimen compliance their work on the AML/CFT issues.
1http://www.lawsociety.org.nz/news-and-communications/news/law-society-gives-guidance-on-amlcft-compliance-documents
14 www.nzbar.org.nz Leave to Withdraw as Counsel: Lessons From the Decision in Burgess v Monk Honor Ford*
Should counsel be able meeting, and put it down to a misunderstanding to withdraw when a client (at [10]). The defendants opposed the application indicates they may sue principally because they did not wish to see the them for negligence, but trial aborted. the client nevertheless maintains they want to be Such a situation did not appear to have been represented by counsel? addressed before in case law, nor do the Conduct How do such allegations and Client Care Rules (“Rules”) or commentary impact on counsel’s to those Rules offer any clear guidance. As Heath obligation to act without J held, in the absence of any authority, “a first any conflict of interest? principles analysis” was required (at [11]). Is the relationship of trust and confidence mutual, meaning that counsel The Court’s findings must be able to have a degree of trust and The starting point is that the High Court relies confidence in his or her client in order to act? on its inherent jurisdiction to determine whether These questions were recently grappled with in counsel should be granted leave to withdraw, or Heath J’s decision in Burgess v Monk (No. 4) [2017] conversely to restrain counsel from acting. In NZHC 2618. exercising its inherent jurisdiction, the Court will be guided by the Lawyers and Conveyancers Burgess v Monk involved a claim against executors Act 2006 (“Act”) and the Rules. Section 4 of the of two estates, solicitors to the estates and a Act sets out a lawyer’s core obligations (at [59]). purchaser of estate assets for inter alia breach Under the Rules, a lawyer has a duty to complete of constructive trust, knowing assistance and a retainer (r 4.2), unless good cause exists to receipt, conversion and breach of contract. All terminate it. Rule 4.2.1 provides a non-exhaustive claims were unsuccessful. The trial lasted 32 list of what amounts to good cause. Here, his sitting days in the Hamilton High Court. The Honour held that “the Court is dealing with one author is second counsel for the first and second of its officers who owes duties to the Court to defendants. complete a retainer, unless good grounds exist to allow counsel to withdraw, or render it necessary for Nineteen sitting days into the trial, near the end of counsel to be removed” (at [20]). the plaintiffs’ case, counsel for the plaintiffs sought leave to withdraw. As Heath J (the trial judge) His Honour considered r 4.2.1, but none of the described, the circumstances were “unusual” (at circumstances listed as giving rise to “good cause” [1]). Counsels’ position was that during a meeting, to terminate a retainer applied here (at [50]). His the plaintiff made allegations that created“a Honour did not refer to the fact that given r 4.2.1 factual foundation for a claim in negligence” against is not exhaustive, the Rules clearly envisage that counsel, implicitly threatened such a claim and good cause to terminate a retainer may arise would not deny at that meeting that such a claim outside of the circumstances listed in that sub- might be pursued (at [7]-[8]). Counsel considered rule. this gave rise to a potential conflict of interest and amounted to a complete breakdown in the Rule 5.1 provides that “the relationship between relationship of trust and confidence. Accordingly, lawyer and client is one of confidence and trust both counsel sought leave to withdraw. that must never be abused.” His Honour Justice Heath declined to interpret that rule as requiring The client, along with all defendants, opposed mutual trust and confidence for the duration of the application. The client’s position was that the retainer (at [48]): the Rules are focused on he retained trust and confidence in his counsel protecting the interests of clients, not lawyers. It is and wished to proceed with the trial. He denied therefore not necessary for a lawyer to have trust any such allegations were made during the and confidence in their client, nor could the loss
www.nzbar.org.nz 15 of such trust and confidence in the client justify While the Act and Rules provide guidance by counsel’s withdrawal. analogy, and his Honour held they did not support the application, ultimately, he concluded the That finding will be difficult for some to swallow, matter was to be determined with reference to but it is consistent with fiduciary law. As the “broad administration of justice concerns” (at [49]), Supreme Court held in Fay v Chirnside [2007] 3 taking into account: NZLR 433, at [80]: - Counsel’s position; “[A]ll fiduciary relationships, whether inherent - the effect on the client if counsel withdrew; or particular, are marked by the entitlement … of - the fact the trial would be aborted after 19 days, one party to place trust and confidence in the with a subsequent delay and waste of costs for other. That party is entitled to rely on the other the defendants; party not to act in a way which is contrary to the - the interests of the public in the finality of first party’s interests.” litigation; - the need for justice to be seen to be done. His Honour’s finding is also consistent with the view of commentators that a client’s only real The fact the application was made during trial, duties are to “give the lawyer instructions so strongly counted against leave to withdraw being they can work, to pay the lawyer’s fees and to be granted. If the application was granted, and the truthful in instructing their solicitor” (Professional trial aborted, the effect on the defendants (and Responsibility in New Zealand, LexisNexis, online client) would be “devastating” (at [62]). That was ed, at [250,105]). Those requirements are reflected particularly so given the trial had been aborted on in what amounts to good cause to withdraw one previous occasion. Accordingly, and logically, under r 4.2.1. There is no requirement of a client to the interests of other parties will be given less otherwise ensure their lawyer maintains trust and weight if leave to withdraw is sought at a time confidence in them. when it does not risk a fixture date, or prejudice other parties. As to a conflict of interest – the more interesting point – senior counsel representing the applicants Issues of privilege (the plaintiffs’ counsel) argued it was no Inevitably, client-solicitor privilege will complicate longer possible for them to act in an objective the presentation and determination of such an manner given the threats that had been made, application. Counsel will be required to provide notwithstanding the client wished them to some evidential foundation for their application, continue. His Honour determined no such conflict without breaching privilege. arose, principally because the client resiled from any claim that may have been threatened and The difficulties this gives rise to are clear, wanted them to continue to act; he retained particularly in circumstances such as occurred in confidence in them (at [58]). Moreover, a threat this case where there is essentially a dispute as alone was not sufficient:“[i]t is not enough to say to what was said, and privilege was only partially that because of a threat of legal proceedings they waived. In the author’s view, it is somewhat cannot be independent” (at [61]). Counsel must be problematic for a client to assert counsel is made of stauncher stuff than that (at [57]): mistaken (or has no reason to perceive a conflict) yet refuse to waive privilege to determine that “In my view, whatever their misgivings may be issue. This places counsel, and the Court, in a and whether they have good or bad reasons for difficult position. holding those views, they have a professional obligation to continue to act for their clients. In this case, Heath J declined to resolve the Having reflected on the issues raised on the factual conflict of what happened at counsels’ present application, I have concluded that the meeting with the client (at [45]-[47]). Instead, interests of justice will not be served by finding he proceeded on the basis that counsel had a ready route by which counsel may seek to a genuine belief the client intended to bring extricate themselves from what they perceive to proceedings against them. However, that had to be a difficult client and an unwieldly case. The be balanced against the fact the client had now statutory obligations case on all lawyers reflect retracted this suggestion. that approach. As Sir Thomas Bingham MR said: they must ‘soldier’ on.” (footnotes omitted) Procedural guidance for counsel While the High Court Rules at r 5.41 set out a
16 www.nzbar.org.nz procedure by which a solicitor on the record may direction as to the scope of counsel’s authority as apply for leave to withdraw, no similar procedure follows: exists in respect of counsel. The present case offers guidance in this regard. [28] In my view, counsel is permitted to use his or her judgment in determining how best, Here, counsel filed an interlocutory application as an advocate, to present the client’s case, relying on the court’s inherent jurisdiction and a on the basis of the instructions given. In many memorandum in support of that application. No cases that will entail making decisions about the affidavit was filed. Counsel engaged independent number of witnesses to be called and the nature senior counsel to represent them at the hearing. and extent of cross-examination. An advocate The Court also took steps to ensure the client will not be criticised if he or she were to follow received independent advice and was represented instructions, yet present the case in a succinct by senior counsel at the hearing. The defendants, and persuasive way. It is difficult to conceive as affected parties, were given the opportunity to of a case in which a Court would find counsel address the application. negligent if instructions were followed but the discretion as to presentation exercised in the Even though the application was declined, his manner I have indicated. Honour made no costs award. He was not critical of counsel for making the application: indeed he In doing so, his Honour likely sought to provide determined it was appropriate for them to have both guidance and a level of comfort to counsel done so. representing difficult clients in complex proceedings. Observations as to counsel’s role Finally, his Honour surveyed various relevant * Honor Ford is a member of Shortland Chambers, domestic and overseas authorities concerning Auckland. She acts in both civil and regulatory/serious the nature of counsel’s role, and in obiter provided fraud proceedings.
New Members
Ms Stephanie Grieve CHRISTCHURCH Ms Noor Hamid CHRISTCHURCH Professor Tony Angelo QC WELLINGTON Mr James Gurnick HAMILTON Mr Callum Reid WELLINGTON Mr Michael Greenop AUCKLAND Mr James Burns WELLINGTON Mr Jordan Grimmer AUCKLAND Mr Marc Corlett QC AUCKLAND Mrs Shenaaz Khan AUCKLAND Mr Navid Sedaghati SYDNEY Mr Lance Green AUCKLAND Mr Julian Dawson WHANGAREI Mr Richard Smith INVERCARGILL Ms Sharron Wooler MATAMATA Ms Megan Cucerzan AUCKLAND Mr Mark Beech TAURANGA Mr James Donkin AUCKLAND Ms Anjori Mitra AUCKLAND Ms Victoria Heine WELLINGTON Mr Christopher Johnstone CHRISTCHURCH
www.nzbar.org.nz 17 Appointing Amicus Curiae and Standby Counsel in Criminal Trials Tiho Mijatov*
In December 2017, the Court of Appeal issued dismissing counsel at trial. judgment in Fahey v R [2017] NZCA 596. It relates (g) Rarely if ever should a defendant’s former to one aspect of developing criminal trial practice counsel be appointed amicus. that has caused much debate among those (h) Former counsel should not normally be at the bar: the propriety of appointing amicus appointed standby counsel either. If withdrawal curiae for self-represented defendants. This is an or dismissal as defence counsel disrupts the increasingly common practice by courts. court’s business, the court may inquire about the reasons for withdrawal, without requiring The tasks to be performed by amicus appointed disclosure of privileged information. If counsel in these circumstances have been many and cites ethical reasons the court should not varied – from providing neutral submissions on inquire further. Former counsel should not be points of law in the traditional “amicus” role, to appointed in a standby role if the court accepts preparing a theory of the case for the defendant, that counsel’s relationship with the defendant cross-examining witnesses and presenting closing has broken down. addresses (either alongside or instead of the The NZBA’s involvement allowed the views and unrepresented defendant). experience of those at the bar to inform the The Court reviewed the practice, surveyed NZBA’s case on appeal. We thank members who overseas jurisdictions, and assessed the competing shared at the outset their views and information rights at stake, before concluding that appointment about relevant court decisions, statistics, of so-called “amicus” is problematic. In its place, anecdotal information and trial practice. the Court confirmed that trial judges have the Prior to the hearing the NZBA prepared a power to appoint “standby counsel”, who may more summary of issues and skeletal argument. properly perform the tasks of an advocate. The The other interveners largely agreed with our Court’s principal conclusions were (at [105]): suggested approach and analysis of the interests (a) Trial courts possess an implied discretionary at stake – including the interaction between the power to appoint standby counsel for a self- right to self-represent, to choose counsel, and to represented defendant where necessary to a fair trial. As a result of this early collaborative ensure a fair trial. work among the interveners, at the hearing of the (b) The roles of amicus curiae and standby counsel appeal, counsel for the NZBA (Jonathan Eaton must be distinguished. Amicus is appointed to QC, assisted by the author) represented both the assist the court itself, usually on questions of NZBA and the New Zealand Law Society. law, when it appears the parties may not do so. The NZBA’s involvement informed the Court Standby counsel is appointed to assist a self- about amicus appointments in practice. We represented defendant to the extent he or she supplemented incomplete official data about is willing to accept help. number of appointments, with our members’ (c) Standby counsel appointments should be collective experience of trial practice. We also exceptional. A defendant’s decision to self- provided concrete examples from case law where represent must be respected and in ordinary defendants had chosen to self-represent but cases a fair trial should be possible without where this decision had demonstrably threatened standby counsel. their ability to have a fair trial. We also explained (d) The role of standby counsel is necessarily why there was confusion and conflict where flexible and case-dependent, and it may former counsel is appointed as amicus. evolve during the trial. (e) Standby counsel takes instructions from the The decision in Fahey should be welcomed and defendant. The duties owed to the court do is likely to live up to its promise as a judgment “to not differ in principle from those owed by guide trial judges in the exercise of their discretion defence counsel, except in regard to gaining to appoint counsel … to assist the self-represented approval for costs and expenses. defendant”. (f) The power to appoint standby counsel extends * Tiho Mijatov practises as a barrister at Stout Street to cases in which the defendant dismisses his Chambers, Wellington, with a focus on public law or her own counsel to secure an adjournment litigation and with wide experience including in criminal or is thought likely to cause disruption by appeals. Tiho is a member of the NZBA Council.
18 www.nzbar.org.nz 2018 NZBA Mentoring Programme Lisa Mills*
In 2018, the New Zealand Bar Association is section of the NZBA website. View the Mentoring expanding its mentoring programme. Research Programme Guidelines and the Background to from the UK on lawyer well-being found that Mentoring documents. These documents provide lawyers who were mentored were much more full information about how a mentoring relationship resilient than those who were not.1 should work, what is involved from both parties’ perspectives and what both parties may be able to The NZBA has had a mentoring programme in achieve out of a mentoring relationship. place for almost 10 years but it has had limited uptake and with the development of the NZBA’s Things to consider Strategic Plan, the Council has prioritised the update and expansion of the mentoring Mentors programme as one of its key objectives. Before signing up, ensure you are interested and enthusiastic about becoming a mentor. All of our With that in mind we have updated the mentoring members have a wealth of knowledge but not information on our website and recently hosted everyone is available to take on the additional role an event to relaunch of the NZBA’s Mentoring of mentor. Programme. This event, which was held at Bankside Chambers in Auckland, was well As a mentor you will need to be supportive and attended by both current and potential mentors encourage the professional development of your and mentees. We hope to host a similar event in mentee. You will not be expected to solve your Wellington in due course. mentee’s problems, but rather provide helpful advice and guidance to support your mentee to Members were given the opportunity to hear from discover solutions to the problems themselves. Kate Davenport QC and her mentee, Alison Todd. The mentor is someone who can be a helpful Alison outlined the benefits that both she and “sounding board” for the mentee. Kate had gained from their relationship. She also pointed out that “...it is very useful to find a mentor Mentees outside your organisation as you get a better A mentee must be a member of the NZBA perspective on what you are doing, and it reminds and enthusiastic about the programme and you that there is a wider world of law out there.” development of their career progression. The mentee will be responsible for arranging the We encourage you to consider signing up and first meeting with their matched mentor and taking part in the programme. If you would like communicating to the mentor what they hope to to look more closely at the programme, the first achieve from the relationship. The Background thing you need to do is to visit the mentoring to Mentoring document provides useful information relating to all aspects of the mentoring relationship.
How to sign up
Mentors Click on the link Fill in the Mentor Application form at www.nzbar.org.nz >member resources>mentoring programme, complete the form and submit. The Mentoring Committee will approve the mentoring application at its discretion.
Once approved the mentor’s name will be added to the list on the NZBA website and linked back to
1 Promoting well-being in your chambers or organisation https://www.wellbeingatthebar.org.uk/policy-and-practice/ (accessed 17/3/18)
www.nzbar.org.nz 19 the “Find a Barrister” listing (recommended – and these are not immediately obvious and we would we can assist with setting this up!) or if that listing therefore recommend that you take the time to is not available, the mentor’s own website profile. look at this material.
The list of mentors can only be viewed by NZBA What happens if it does not work for me? members. However, if you do not want to be The mentoring relationship may be concluded at placed on this list but are still willing to act as a any stage on a “no blame” basis. If a mentee or mentor, please let us know and we will ensure that mentor wishes to withdraw from the mentoring your name is not included on the website list. relationship, they may do so by communicating their withdrawal to other party in writing. If for any If a mentee requests you as a mentor, or the reason this poses problems, they can notify the Executive Director believes that you would be NZBA in writing and request the Association to a good match with a particular mentee, you will notify conclusion of the relationship. They are not be contacted and will have the opportunity to required to provide a reason. If a mentor wishes to consider whether you would like us to set up the be removed from the list of available mentors they contact for you. should contact the NZBA in writing. Their name will be removed from the list. You will also have a chance to meet informally with the proposed mentee, so that you can both decide if you feel that you are a good match. You are welcome to discuss any matters at any time with *Lisa Mills is the NZBA Administrator and Events the Executive Director. Coordinator. If you have any questions about how to sign up for the mentoring programme or use the website Mentees please contact her at [email protected] Mentees are asked to submit up to three names for possible mentors. Although there is a list of potential mentors on our website, if there is someone you would like as a mentor who is not listed, please let us know. Provided they are a member, we are happy to approach them on your behalf to see if they are available to mentor you.3
Once you have decided who you would like to have as a mentor, fill in the Mentee Application Form and submit it. Your chosen mentors will be contacted (in the order you chose them) and asked if they are available. If they are available, the NZBA Executive Director will provide you with your mentor’s contact details. It will then be up to you as the mentee to start the conversation.
Initially we suggest a meeting to establish if you are a good fit as mentor and mentee. After that it will be up to you both to meet as regularly as you decide is required/necessary. You can determine how much formality or structure your relationship should have, but we note that recent research has suggested that a certain amount of structure is better for a successful mentoring relationship.
We have included some guidance in the background information and some forms that will help you work through the issues you need to discuss with your mentor/mentee. Some of
3www.nzbar.org.nz/resources/list-of-mentors
20 www.nzbar.org.nz A Performance Approach to Advocacy by Chan Shoker*
This article first appeared in Counsel Magazine pressure, in a living, breathing, unpredictable (December 2017) and is reproduced with the courtroom. Barristers may eventually acquire permission of the author. similar skills but too often by trial and error.
What can the art of performance offer the Having trained and worked both on the stage barrister? By performance I don't mean and at the Bar, I believe that any barrister, theatricality or shouting in the evenings, in particular the pupil, would benefit from guilty as I am of both. I refer, instead, performance-based training. Barristers to the action or process that governs who understand performance can behaviour. How might the actions bring a powerful psycho-emotional or processes of an actor benefit the dimension to their work. Performance barrister? offers them a deeper understanding of the components of their moment-to- I recall a creeping sense of unease moment subjective experience under during my advocacy training. I was pressure, of the actions they take. It taught well, I left with all the right brings that experience under their grades, secured pupillage and spent control. Above all, it shields the barrister half a dozen years in practice without from the perils of trial and error. completely humiliating myself. And yet, I carried with me the feeling of There are plenty of skills, tricks and something missing, of unexplored techniques that could assist. By way territory and potential beyond the of example, I explore four key areas. questions I was asking, of a world It is my belief that the injection of outside of my control; the vague performance techniques in to these notion that my mind and body were areas would create a virtuous cycle reacting under pressure in ways that I didn't fully for the newcomer - each feeding and reinforcing comprehend. the others to create a tight loop of certainty and control under pressure. Many years later, having left the Bar to train as an actor, the source of this unease became apparent. Speech What I had experienced back then were the outer Actors are taught a method of strategic speech limits of traditional advocacy training, whereby whereby words, phrases, sentences are loaded barristers are taught what to do but rarely how up with psychological intent. Its purpose: to bring to do it. This 'how' applies to any and every specificity, accuracy and dramatic power to meaningful action in court; to the living of a life dialogue. under the pressure. It is in this context, I believe, that the art of performance assumes relevance. Speech is used to create measurable, internal reactions in the listener. Words are 'aimed' and Traditional training seldom incorporated 'fired' like the bullets of a sniper. In this way, actors performance, but the need for this aspect to are compelled to avoid waste, affectation or be addressed is being acknowledged, and generality. Their words carry purpose far beyond workshops are increasingly available on voice, linguistic meaning. This method requires no presence and presentational skills, some of which collusion from amenable cast members - the actor are led by professional actors. employs the same to elicit specific responses in an audience. Barristers may have learnt how to prep and present a case according to the basic principles For the barrister, placing all speech within a of advocacy, but not necessarily how to bring that framework of psychological intent offers more presentation to life, through designed, intentional impact, subtlety, control and tactical precision in action in the context of a deeper human narrative. cross-examination, submissions, closing speeches Performance skills can help the barrister truly etc. From moment-to-moment, incrementally, exploit those advocacy techniques under barristers can affect and even control the internal
www.nzbar.org.nz 21 state of the listener. He or she becomes an agent weight and resonance. Our narrative, personal and of specificity; not just in the words used but, in case, gains power. The more settled breath pattern the psycho-emotional messaging with which they of a strong voice steadies the flow of blood to the motor those words. Basic advocacy techniques brain, maintaining clear and relaxed thinking under are brought to life - the barrister has a tool for how. pressure. An additional benefit to the newcomer is the side- stepping of self-consciousness; this technique Through focus on vocal agility and flexibility, the places all attention on the recipient and their barrister moves closer to finding his or her most reactions. relaxed, 'free' voice. A freer voice means more vitality, more colours to the presentation, a voice Listening – an act of excavation more likely to surprise, break pattern and rhythm From speech to listening. There are several and therefore hold the attention. It can mean a performance techniques that could offer barristers more personal voice, a rougher voice even; a a distinct advantage when listening. Actors learn voice more likely to connect psychologically and to listen with eyes and ears, throwing all their emotionally. The voice itself becomes a flexible tool. attention on to the speaker without trying to listen (trying to listen often merges what was said Centring the body with an imperceptible inner monologue of our Actors will train to bring their bodies under control, own making). They will learn to hold a thought to centre it, strengthen it, isolate its joints and in their mind without it distorting what they hear. muscles so it becomes alive to them. Through They will focus on the choice of words, on their doing just some of this work, the barrister, nature, on the images behind them which may powerfully connected to his or her own physicality, reveal the deeper, internal, emotional landscape becomes more alive to others. They iron away of the speaker. They will note the full weight and kinks caused by nerves, insecurity, anxiety, kinks value given to specific words. They will sense and that may stifle the breath, and so the thinking, internalise the tempo of speech, any dissonance when it is needed most. or congruence in delivery, the breath, where the Barristers in control of their body are in control speech sits in the body. They will understand the of their presence, of the messages, conscious power of mirroring speech patterns. Listening and subconscious, that they send to others. becomes an act of excavation. They can orient themselves to a judge, witness, In this way the barrister is brought entirely in opponent or client for specific impact. They can to the moment, not just in court, but also in maximise their presence when facing down a negotiation or conference. Because truly engaged difficult witness or opponent, de-emphasise their listening not only improves intuition, but effectively power with a vulnerable client. They create a body creates a world or mind between people, the which is relaxed and responsive, reserving energy barrister becomes more deeply attuned to the that would otherwise be lost through muscular hopes, needs, fears and intentions of his client, tension. They can bring more power and force to an opponent, or witness. Barristers can sense their advocacy through a deeper synchronicity of more closely the attitude of the judge or jury. They movement and speech. reveal to themselves more possibilities, more ways The similarity in the subjective experience of to win, more insight. In this way, they can begin to the barrister and actor is so striking, it is unlock a deeper human dimension within the inconceivable to me that the former cannot work, a deeper connection to every aspect of learn from the latter. The importance of their environment. The listening itself becomes performance lies not just in the difference strategic. In my experience an additional between mere information and persuasion, benefit accrues: the more profound the between generalisation and specificity, listening, the more incisive the speech. looking bad or looking good, but also Voice – more powerful, clear in the difference between a kind and controlled of professional purgatory and The most immediate benefit would certainty, of unconscious trial and be a more powerful, clear and error and conscious mastery. In controlled vocal instrument that my opinion, it is fundamental. holds under stress. A stronger * Chan Shoker spent six years at voice tends to bring more Cornwall Street Chambers before confidence. We are more believable retraining as an actor. For more when our voice carries authentic information see: www.chanshoker.com/
22 www.nzbar.org.nz Photo credit: Bernard Spragg - https://preview.tinyurl.com/y93c9asg, CC0, https://commons.wikimedia.org/w/index.php?curid=61216702 Old But Venerable by Jacqui Thompson*
2018 began with looking backwards into the history of two courts and viewing the future of courts, in the form of a justice precinct. Special sittings were held to mark the reopening of the Dunedin High Court, the opening of the Christchurch Justice Precinct, and the 150th anniversary of the Auckland High Court. The reopening of the Dunedin High Court on It was to be erected in Lower Stuart Street, near 26 January 2018 was marked by procession of the railway station. The Society pointed to the the judiciary and the profession from the town "incessant whistling, accompanied by the shunting hall, followed by the special sitting and a ball to of trucks".2 Nonetheless the building went ahead celebrate the restoration. on that site and was officially opened on 23 June 1902, when 62 members of the profession formed The courthouse was designed in 1901 – 02 by John a procession (led by Alf Hanlon KC) through the Campbell who was the government architect. This streets to the new building. was the first of his major works. In 2011, following the Canterbury earthquakes, the building was The building has borne witness to crucial periods assessed as being high-risk even in the event of in New Zealand’s legal history and has seen many a moderate earthquake. There was considerable of its most famous figures pass through it. One of uncertainty about its future, but in 2015 Cabinet its earliest judges was Joshua Strange Williams, approved a $20 million budget to save the building. about whom it has been said that “no New The work including upgrading the technology and Zealand judge has ever quite achieved the same strengthening the building to 60 to 70% of the new position of affection within the profession or the building standards. community at large.”1
Although the Otago District Law Society had Williams J was originally a conveyancer in been campaigning for a new court building in the England. Notwithstanding his very limited 1880's and 1890's, it was less than pleased when the location of the building was finally announced. 1Cullen, M. J. Lawfully Occupied. (Otago District Law Society, 1979), p66. 2 Ibid, p42
www.nzbar.org.nz 23 experience as a barrister, in March 1875 he was appointed to the Supreme Court of New Zealand. Over the years, he gained the respect of the bar for his wisdom, courtesy and helpfulness to practitioners, including leading young lawyers through cases and suggesting questions to be asked.
One of the most famous and colourful figures to appear before the court was barrister Alf Hanlon KC. His background differed from the majority of the profession who were drawn from the English/ Scottish middle classes. He was the son of an Irish policeman, who despised class distinctions Otago Bar and Dunedin High Court and was an adamant atheist.3 While it was said that “there is little doubt that a murderer wishing Mr Elliott observed that Dunedin continues to escape the supreme penalty was better advised to be served by an active and accomplished to hire Hanlon than anyone else”, he was unable to Bar, upholding the very best traditions of the save one of his most famous clients, Minnie Dean.4 independent bar. They have the privilege of practicing in a court so steeped in rich history and An appearance in court by Hanlon would lead tradition.7 to the court overflowing with both members of the profession and the public. This could be Auckland explained, perhaps, by his love of performance Auckland could be said to be the birthplace of which was in turn fed by his love of Shakespeare.5 the Supreme Court, as the High Court was then known. Prior to 1842, New Zealand fell under the Other trials in more modern times have equally jurisdiction of the New South Wales Courts. In attracted crowds and comment in the media. As January 1842, William Martin (later Sir William) noted by NZBA President, Clive Elliott QC, in his took the oath of office as this first Supreme Court address to the Court at the re-opening special judge and the first Chief Justice. Martin CJ had sitting6, magistrate Donald Rennie was tried in been called to the bar in England. When he was Dunedin in 1972 for perjury. He was convicted appointed to the New Zealand Supreme Court he and sentenced to six months' imprisonment. More was 34 years old and had no court experience.8 recently, deposition hearings were held for the Bouwer and Weatherston murder cases.7 The Supreme Court first sat in a Kauri timber building, located in the commercial sector of Perhaps the most famous recent case is the first colonial Auckland in February 1842. The current Bain murder trial. Arguably, New Zealanders court building replaced the earlier timber building learnt more about legal bodies and the appellate in 1868. It was given a more prominent position process from this trial than any other. The public on the hill near the former Government House. followed the trial and then on to the Court of Built as a two-storey brick and stone building, at Appeal, a petition to the Crown, referral back to that time it was said to be the first public building the Court of Appeal and then to the Privy Council, erected in durable materials in Auckland. which found there had been a miscarriage of justice and ordered a retrial (this was held in The architect was British born Edward Rumsey, Christchurch). who had trained under Gilbert Scott. The design of the building was in keeping with the frequent use Otago claims the first woman admitted to the bar in of Gothic revival in judicial buildings in the later New Zealand. Ethel Rebecca Benjamin was also the colonial period and included a crenellated central first woman admitted to law school at the University tower and pointed arch arcading. This is in strong of Otago. This university was the first in Australasia contrast to some of the more classically designed to allow women to acquire a degree in law. buildings nearby.
3Hall, Geoffrey, “Alf Hanlon” – Te Ara - The Online Encyclopedia of New Zealand. https://teara.govt.nz/en/biographies/2h11/hanlon-alfred-charles (accessed 19/03/2018) 4Cullen, Op. Cit, p45 . Minnie Dean’s trial was heard in Invercargill. 5It is said that Hanlon’s address to the jury in the Dean trial was so impassioned that the judge adjourned the day before summing up to allow the jury to have time for calm consideration. See n3. 6https://www.nzbar.org.nz/news/address-president-new-zealand-bar-association-reopening-dunedin-court-26-january-2018 (accessed 17/03/2018) 7Ibid 8Spiller, Peter A New Zealand Legal History (2nd ed, Brookers Ltd,Wellington, 2001) p204.
24 www.nzbar.org.nz The carvings on the exterior façades are by Anton The Auckland Bar has seen significant progress Teutenberg and are depictions of British royalty, for women in the legal profession. The second local dignitaries and Maori leaders such as the woman in New Zealand to be admitted to the bar Ngapuhi chief, Hone Heke who had died in 1850. was Eliza Ellen Melville (known as Ellen). Unlike The Gothic revival style is continued in the interior Ethel Benjamin, she remained in the law in New of the building, and these preserved interiors are Zealand for many years. She was the first woman examples of the fashions for decor in 19th-century City Councillor in New Zealand, serving for 33 craft techniques. years on the Auckland City Council following her election in 1913. She was also a leading figure in There were from an early stage some criticisms of the National Council of Women of New Zealand. the working conditions inside the building.9 The She continued her fight for women’s rights roof in the number one courtroom was known throughout her professional career as a lawyer. to let in “torrents” of rain and the ceiling shape created bad acoustic problems. Allegedly there The Auckland High Court has seen significant were fleas in the courtroom and the earth closets advances for women in the judiciary. Dame Silvia created a smell. The courthouse underwent at Cartwright, the first woman appointed to the High least two extensive renovations, the first in 1935 Court Bench, sat in Auckland.11 The Auckland Bar -1936 and a second, more extensive $40 million now proudly claims among its former members refit in 1988. As remarked by Clive Elliott QC the first woman Chief Justice (Dame Sian Elias), in his address at the sitting for the 150th year the first Māori woman to become a judge of the anniversary, while the leaks, fleas and odours High Court (Justice Lowell Goddard; she also may have been overcome, the bad acoustics have shares the honour of being the first Māori woman successfully resisted all remedial efforts.10 Queen’s Counsel with Her Honour Justice Elias)12 and the first woman to hold the position of Chief The courthouse has featured many significant High Court Judge (Justice Helen Winkelmann). trials, including the earliest trial in New Zealand that involved fingerprint evidence, a well-known The High Court is not a building, and it is more celebrity trial involving dancer and entertainer, than a symbol. It is an institution that underpins Freda Stark, and the 1986 sentencing of the our legal system and our constitution. Those who French agents involved in the infamous sinking work in the courts and the registry and provide of the Rainbow Warrior in 1985. Each of these external support through the Ministry of Justice and hearings placed great demands on the court. The Department for Courts are as critical to the workings latter two hearings, in particular, attracted a great of this institution as those who appear before it. deal of publicity, with crowds queueing on the It is trite to say that without them, nothing would street to get into the public gallery and the media happen. Mr Elliott noted on behalf of the Bar that demand outpacing the available accommodation. their commitment, professionalism and courtesy are greatly appreciated by the profession. Some cases introduced technological advances that changed the court's operations. In the case of the Rainbow Warrior, the security imposed was at a level that had never previously been seen in New Zealand courts. Because of the demand for seats at the hearing, screens were used to project the proceedings into the number two courtroom. Things have changed somewhat from this early use of monitors. Today, increasingly, the public can see court proceedings on the evening news.
Another significant case was the Equiticorp case, which ran for a year. Apart from absorbing enormous judicial and court resources, the case cemented the use of computers in the courtroom to aid with the volume of documentation.
9Restoration and Refitting of Auckland High Court [1991] NZLJ 186 at 187 10Elliott, C “Auckland High Court 150th Anniversary Sitting” https://www.nzbar.org.nz/news/auckland-high-court-150th-anniversary-sitting-address-clive-elliott-qc (accessed 10/03/2018) 11The first woman appointed to the judiciary was Dame Augusta Wallace who was appointed to the District Court. 12Judge S Te A Milroy, “Māori women judges in Aotearoa” March 2016, https://maorilandcourt.govt.nz/assets/Documents/Publications/MLC-2016-Mar-Judges- Corner-Milroy-J.pdf
www.nzbar.org.nz 25 The Cutting-Edge Courthouse by Jacqui Thompson
The Christchurch earthquakes in 2010 and 2011 • Christchurch City Council – Civil Defence destroyed more than just buildings. It claimed and Emergency Management. lives and forever changed the traditions of that city. But the rebuild has been a testament to the The Ministry of Justice's website, after listing all of resilience of Christchurch and its people. these agencies, goes on to say that the “… judiciary will also be housed in the Precinct, That resilience is also demonstrated by the in a way that recognises and ensures its response to the loss of its old High Court and constitutional independence.”1 In his address at the acceptance of a new, cutting-edge Justice the ceremonial sitting to mark the opening of the Precinct. Court, NZBA Vice-President Jonathan Eaton QC remarked on the need for this separation: The $300 million precinct brings together all justice and emergency services into a purpose- “ … [I] sense a degree of discomfort that built environment in central Christchurch. It is the “justice precinct” label fails to recognise made up of three buildings; the Justice building, the separation of powers prescribed by the the emergency services building and a car park Constitution Act. A court quite independent of for operational vehicles, all grouped around a the legislature and of the executive. To refer to central courtyard. In what may appear to be a this building as a court house rather than a part case of putting all one’s eggs in one basket, it of a precinct can only enhance the prospect houses the: that the public appreciate that this courthouse • Ministry of Justice; stands strong and independent.” • New Zealand Police; • Department of Corrections; Mr Eaton QC commented that justice had been • St John New Zealand; administered from the old High Court location for 2 • Ministry of Civil Defence and Emergency nearly 150 years . He said that that courtroom Management; had had an inspiring and unique history with many • Canterbury Civil Defence and Emergency fondly remembered judges and advocates. He Management Group; noted that all would feel “a very strong sense of
26 www.nzbar.org.nz pride in our profession unintended consequence of eroding fundamental with its rich history rights. The new court, he said, would not carry the and tradition”. same physical, tangible reminders and reflections of history. There were concerns that the increase The move from and improvement of AVL facilities encouraged a building that remote appearances and that the jury box was recognised the split 8:4. traditions and history of the administration The new courthouse is acknowledged to be light of justice and the and airy, with excellent facilities and an upgrade judiciary, has not in terms of security. It increases public access for been without some the people of Canterbury. But in the end, as noted angst. There were by the Chief Justice, in her address on the 150th complaints over the anniversary of the Auckland High Court, a court loss of the old court’s is not a building. Recognising this distinction, Mr judicial canopy and eight portraits of Christchurch Eaton said: justices, which did not go to the new precinct because they did not “…fit with the Ministry of “An awareness and appreciation of tradition Justice design aesthetics.”3 However, those who and history can promote and encourage have visited the ultra modern and high tech Queen high standards, adherence to our overriding Elizabeth II Courts of Law in Brisbane may have obligations, our commitment to the rule of law seen the portrait gallery that blends old with new and respect for legal process, for legal history. effectively. Perhaps this is an issue that could be This is an important occasion for justice in revisited as the Department for Courts finds its Canterbury but it is not a fresh start or a clean place in this precinct. slate. This is very much a continuum of a proud past, albeit in these most impressive Mr Eaton noted that there had been some surrounds. Which only serves to remind us of apprehension about the development of a the importance of our role as counsel to ensure justice precinct and whether there would be any we maintain the highest standards.”
1https://www.justice.govt.nz/about/about-us/our-strategy/christchurch-justice-and-emergency-services-precinct/ (accessed 11/03/2018) 2Eaton J. NZBA Address at the ceremonial sitting of the opening of the no.1 High Court in Christchurch, 31 January 2018 (https://www.nzbar.org.nz/news/nzba- address-ceremonial-sitting-opening-no1-high-court-christchurch-31-january-2018, accessed 11/03/2018) 3Christchurch Justice Precinct 'blandly anonymous': QC Nigel Hampton, Christchurch Press 15 November 2017 (https://www.stuff.co.nz/the-press/ news/98926720/christchurch-justice-precinct-blandly-anonymous-qc-nigel-hampton, accessed 11/03/2018)
The End of Retirement as We Have Known It by Geoff Pearman*
“The 20th century We are living longer and healthier lives. The old gave us the gift of life maps that guided our parents are no longer longevity – but for relevant. The boomers are doing what they have what? The longevity always done – challenging the norms and charting revolution forces a new direction. us to abandon In a series of four articles I will explore the existing notions implications of this change. In this first article of old age and I want to set the scene, proposing that we are retirement. These already seeing the end of retirement as it has old social constructs typically been portrayed and dreamed about. are quite simply In fact I am going to go as far to suggest that unsustainable in the retirement is an outmoded concept that needs face of an additional to be retired. I can already hear the protests from 30 years of life.” - Alexander Kalache, President those in their 30-40’s who are dreaming of the International Longevity Centre. time when they will no longer need to work.
www.nzbar.org.nz 27 The combination of lower birth rates following follows night. Childhood followed by adolescence on from the boomer bulge, and increased life and then adulthood. The later was then broken expectancy is going to see a significant increase up into middle age and old age. in the number of older people. The number of people aged 65 plus is expected to grow by 77% Influential British historian, Peter Laslett, in the from 700,000 in 2016 to 1.24m in 2031. But will this 1980’s talked about the emergence of a “third simply mean more retirees? age”. He described this as a new stage between the end of mid-career and parenting duties and Increasing numbers of people aged 65 and over the beginning of dependant old age. Laslett are already staying on at work longer. Currently wasn't the first to try and divide up our lives into in New Zealand a quarter of people aged 65 and stages. Shakespeare back in 16th century Britain over are still in some form of paid employment talked about the seven ages of man in his play (30% of men 18% of women). Of those aged 65-69 As You Like It. As early as around 600 BC an forty-four per cent are in paid work. It is expected Athenian statesman, Solon, divided life into 10 that number of people still in work will grow to periods of 7 years each. around 300,000 by 2031 up from 166,000 in 2016. They are doing life differently. The latest incarnation of linear thinking has come from the Commission for Financial Capability. They have further divided the “third age” into a Discovery phase (65-74) followed by Endeavour (75- 84) and then the Reflection stage (85+). All of this suggests we are programmed to follow predetermined paths throughout life.
Life is more complicated than simply adding up the number of birthdays We have been socialised into a linear view of life, we have had and then conforming to a set of twenty years of education and training, 40 years expectations passed down about what we of work and family and then the golden years. should do at different ages and stages. In fact, The challenge we now face is that the 10-15 chronological age is now recognised as the least years we dreamed of post work has now become reliable measure. potentially 30 years. If we subscribe to this linear approach to life it does suggest that in fact many American gerontologist and writer, Ken more people will be retiring (even if a little later Dytchwald, argues that rather than seeing life as than previous) and living out their lives as retirees a series of linear and sequential stages roughly for longer. This has given rise to recent headlines approximating the 20,40 10+ model we will in Australia arguing that their superannuation increasingly be mixing it up. Why have education system is not designed for the ageing population. just at the front end and defer leisure until we The rationale being that when the system was retire? Margaret Mead once whimsically said “It conceived it was designed to financially support is utterly false and cruelly arbitrary to put all the the period 55 to 75, after all that was the average play into childhood, all the work into middle age, life expectancy. People are now typically living and all the regrets into old age.” Why not a gap into their late 80’s, more than nine years longer year in your 40’s, why not a degree in your 50’s than they did in the 1990s. or 70’s, why not retraining for an encore career in your 50’s or going into business for the first time We have also been taught to think of life as a in your 60’s? series of sequential stages that follow just as day
28 www.nzbar.org.nz Many more people are needing to stay on for financial reasons. New Zealand is one of the few countries to have universal access to a state funded age pension and while it is designed to meet the basic needs of recipients, many find that they need to supplement their income through paid work. The recent Government commissioned report on housing showed that the number of people receiving both New Zealand Superannuation and an Accommodation Supplement payment is growing by 2,000 per year. The authors concluded there is a growing risk that we will see more For many people retirement is no longer the and more older people living in housing-related dreamed of destination. Takapuna based HT poverty. Group undertook significant research last year examining the lifestyle needs of a group of New We are also seeing a number staying on at work Zealanders aged 55-70. They conducted in- because they dare not think about an alternative. depth interviews with more than 60 adults and They may not be enamoured by the work they compared their attitudes and behaviour with that do, but work is what they have always done, their of other age groups in an online survey of 1,363 identify is defined by their job and to not be in work people. They found a number of cross-cutting is not something to be contemplated. Many will tell themes and identified five orientations. The dream you stories of people who died soon after retiring for most was not retirement but rather freedom. and that is not something they want to bring on. As Clare Hall Taylor found: “This age group has a strong disconnect between interior vitality and What is surprising when you talk with people physiological ageing. They simply do not feel in their fifties is the low level of planning being ‘old’ and, for many, the concept of retirement was undertaken. Our estimate is that only around ten unattractive. They are particularly repelled by per cent of people over 50 have a thought through age-related advertising, so organisations need life stage plan, maybe a few more have a financial to be particularly sensitive about the way they plan. In spite of the injunction to at least have a communicate with this age group.” financial plan, people drift. After all if you have not been a planner during your life thus far, why would New Zealand now has the second highest you suddenly become one in your 50’s or 60’s? workforce participation rate of people aged over 55 in the OECD. This is often regarded as With increasing numbers of people wanting to being positive as people in work contribute to stay on in work, what is it they are looking for the economy, pay taxes and have higher levels and what makes work satisfying? The research of disposable income. The Ministry of Social is consistent. The first thing many older workers Development has projected that the paid work are looking for in their work is flexibility and a earnings of the 65 plus population will grow from sense of having some control over their work $4.8b in 2016 to over $13.6b by 2041. arrangements. While this may not be possible in all jobs, a degree of choice is important. This may People are staying on in paid work through choice mean the ability to vary start and finish times, to because they are healthy, they enjoy what they do, take additional leave, to work shorter weeks and gain personal satisfaction and often say that they maybe to cut down on the daily commute and still have something to contribute and achieve. work from home if this is feasible. They may want greater flexibility, which could be reducing their days or hours of work to factor in The second thing many want from work is to other interests or taking longer vacations. be recognised for their ongoing contribution and to be valued for their knowledge and skill.
www.nzbar.org.nz 29 They are not over the hill and do not want to be marginalised or ignored. This ongoing contribution could be made through a changed role where they shed some of their responsibilities and give back HT Group’s research study found 5 ‘Life through mentoring. Equally it could mean having Orientations’ – people who differed in their access to ongoing professional development to attitudes to work, leisure and finance. Each remain relevant. group had its own distinct view of what The third thing that many people value is the social ‘freedom’ meant and how they viewed their aspect. If where they work is a great place to work current life stage. with good relationships, they will stay on. They want to be respected, have fun and continue to develop and maintain friendships. This is where it is important as you think about a life beyond work to Prosperous Enterprisers have a transition plan in place and to be developing - often business owners, they were driven, alternative social networks and interests. savvy individuals who achieved a work-life balance that they were satisfied with. The curious thing about these three factors is that they are also present in the top ten for most employees irrespective of age. In the case of mature aged workers what happens is that factors such Purpose Seekers as career progression and money become less - had a strong desire to maintain a purpose important, while giving back, making a difference in life. They were determined to try and and leaving a legacy become much more important. work as long as they could. Meaningful American researcher Gail Sheehy in her book work was associated with positive Understanding Mens’ Passages observed that wellbeing. the word “retire” has become synonymous with words such as discard, dismiss, resign, retreat, seclude oneself, be unsociable, go to bed. She, Retirement Embracers like many others went on to suggest we should – mainly paid employees, they were retire the word “retire” and replace it with a word counting down to retirement or celebrating that is much more active. She suggests, “redirect”. A time in your life when you want to redirect your the fact that they had now retired. energies, talents and time. Retirement was associated with positive wellbeing. The reality is that more and more people are choosing the age at which they move to the next stage in their lives or alter the nature of their working life. The point at which we exit Reluctant Sloggers paid work will increasingly have little to do with – felt financially behind and believed that the age of entitlement to an age pension. For a they needed to keep on working for the growing number, the intention is to never retire foreseeable future. A group we believe is in the traditional sense. They cannot imagine not growing in size. working in some way, even if it is doing something different or organised to give greater flexibility. Award winning economics journalist Chris Farrell summarises the trend that many of us are shaping Seasoned Survivors – the end of retirement as we have known it: - often long-term beneficiaries they had experienced a tough childhood or had “We are at the early stages of a long, difficult suffered trauma when they were young. transition toward a different vision of the elder years, less a model of disengagement from They have had a consistently hard life work and neighbourhood to one of continuing which had left them vulnerable. engagement in work and community.”
* Geoff Pearman is a consultant, trainer, speaker and author who specialises in the field of age and work. For more information see: www. partnersinchange.co.nz/ about/
30 www.nzbar.org.nz Residential Property As An Investment. Does the House Always Win? by Laetitia Peterson*
During the course Statistics New Zealand shows home ownership of writing my book, trending down, with just under half of all people “Legal Tender,” in living in a house they own or partly own, with which I talk about New a decline in home ownership seen across the Zealand lawyers and board from people in their 20s to 70s, with the their attitudes towards largest falls for those in their 30s and 40s. money and wealth creation, I asked 61 legal This was echoed in our interviews with younger professionals, “What are lawyers experiencing major challenges in your main strategies to create wealth?”. getting into the property market. They are not on low incomes by any stretch of the imagination, Buying a family home was the most popular compared to others at the same life stage. strategy, with 77 per cent acknowledging it as their main plan to build wealth. This comes as Buying a home is not a one-stop shop. The no surprise. We know lawyers are predominantly next Kiwi dream is to renovate. Ongoing Family Stewards (wanting what’s best for those capital expenditure loomed large in home- closest to them) and, of course, a top priority ownership discussions. Capital expenditure and is to buy a home for their loved ones. For many renovations had the potential for a “significant New Zealanders (not just lawyers), this is the financial impact” on lawyers facing future main (if not only) financial asset. Most lawyers, financial challenges. young and old, started to build their wealth this way. For older lawyers, the family home was As mentioned, the family home is often the used as a springboard to leverage into other largest financial asset. As such, it is often forms of property investment (residential and unavoidable for lawyers to have the majority commercial). of their wealth (especially in the early stages) invested in a highly concentrated component. Buying a family home today is more challenging Think of a home worth more than a million than ever, especially in Auckland where house dollars tied up in a single asset, a single asset price growth has far outstripped income growth. class (property) and a single (and very small) country. If your investments are exclsively in One lawyer in his early 30s and the father of a your house, all your wealth is concentrated in young child shared his story about the challenge the residential property market. of upgrading his family home. He had already made the first step on the property ladder but Given the importance of property for wealth needed to make the next step to a bigger house creation in New Zealand, it is worth getting a on a larger section for his growing family. He handle on what sort of returns we can expect was disillusioned with the property buying from property as an investment over the long- process with its increasingly unattainable term? To find this out, we first look back to auction prices, but refused to give up the Kiwi Europe 350 years ago. dream of providing his family with a lovely home and garden. While on a clear path to partnership, In Amsterdam, just on the outskirts of the this successful lawyer was struggling with what medieval city, lies a canal. On the edge of seemed so easy for the generation above him. that canal sits Herengracht, one of the most How could this be? He was spending most of prestigious neighbourhoods in the city, built his time at work and yet this wasn’t enough. He in the 1600s at the start of the golden age had to look further out of Auckland, which, due of Holland. Over time it has housed wealthy to increasing traffic, wasn’t appealing, but what financiers, slave traders, diamond cutters was the alternative? and the like. It has always been considered
www.nzbar.org.nz 31 States were virtually unchanged on an inflation adjusted basis.
Year on year, this is almost impossible to guess. As we know, property can experience periods of rapid price increases and, at other times, extended periods of flat or subdued growth. However, long-run estimates of growth rates can be observed from historical data. For instance, the Shiller Home Price Index provides long-term US house price data going back to 1927. We can see that, since the 1920s, US home prices have a premium area, in one of Europe’s most increased by 3.9 per cent per annum on average. prosperous cities. That compares to US inflation, which increased at 3 per cent per annum over the same period. Dr Piet Eichholtz, a professor at Holland’s Maastricht University, had a novel idea. As the Dutch are such meticulous record keepers, he thought he should be able to construct a time series going back 350 years which showed the change in the value of housing, adjusted for inflation, using the neighbourhood of Herengracht as the basis.
We’ve all heard the refrain, adopted as fact, that property is a great investment. With that in mind, what do you think the 350 year investment return on housing in Herengracht has been? Over the complete 350 year period, housing in Herengracht has achieved a total return of (drum roll please) 250 per cent! However, that’s a mere 0.2 per cent real return per annum. Although there have been a few small deviations In an interview with the New York Times Dr over the full 90-year period, the long-term Eichholtz said, "There is a myth which says relationship between house prices and inflation that real estate values go up significantly over has been remarkably stable. That includes the time, and that this is especially true for central decade of the 1970s, when US inflation was high city locations. When I began to study the and house prices increased at an accelerated Herengracht, I didn't know what I would find, but rate. the data ended up challenging that myth." Perhaps this is simply a Dutch problem. Maybe The strength of this relationship is intuitive in other, newer economies, we would find a because, over the very long-term, we expect different result. the price of a residential property (particularly a residential investment property) to be driven Actually, no. primarily by the long-term growth in rents, which in turn is related to increases in wealth Dr Robert Shiller won the Nobel Prize in and income, and thus, inflation. In fact, a key Economic Sciences in 2013, in part for his work observation from the Gordon Growth Model (a on a long run housing index for the United States method for calculating the intrinsic value of an going back to 1890. Apparently, Americans aren’t asset exclusive of current market conditions) is as meticulous record keepers as the Dutch so that, in the long-run, the growth in asset prices he couldn’t go back further. However, that still (capital gains) must be equal to the growth in provides us with 125 years of data. yield (rental income). Therefore, rather than looking at growth in property prices, you could What did Shiller find? In the 100 years from equally look at the growth in rental income. 1890 to 1990, property prices in the United
32 www.nzbar.org.nz Let us look at a central Auckland example, using to justify the higher current property values. the index Trade Me Property publishes showing Unfortunately, the history of rental price the annual change in rental prices. While in the movements is that they are relatively stable. month of June 2017 rental prices were up 3.9 per Therefore, it has to be considered extremely cent on a year earlier, the average annualised unlikely for a market mechanism that historically increase over the previous 12 months was closer exhibits considerable stability to suddenly move to 3 per cent. While this is above the current by a substantial amount in any direction. New Zealand inflation rate of around 2 per cent, it’s not significantly different, which makes a lot Although property is less volatile than shares, of sense. it is not, as you might think, as “safe as houses”. Taken properly into account, several hidden In the long-run, if rents consistently increased by costs and hassles could significantly reduce much more than inflation, they would consume your effective return. Apart from the lack of an ever-increasing proportion of a tenant’s diversification and hidden costs lowering the income. That wouldn’t be sustainable. In fact, the effective return, property investments are also reason that rents have increased over the rate illiquid assets with high transaction (entry and of inflation reflects massive new investment in exit) costs. And, if your property is funded with property, providing better, roomier, warmer and a loan, an increase in interest rates will increase safer rentals. Ultimately, this new investment your repayments and, in the case of a rental comes at a cost to the investor. property, decrease your net rental income (most lawyers were well aware of the effect of the So, let us assume the long-term growth in rising OCR on floating mortgage rates in our rents is 1 per cent above inflation. Since the financial literacy survey questions). Reserve Bank of New Zealand has a policy target of maintaining inflation in the range of Coming back to property as a lifestyle asset, 1 – 3 per cent on average, we can reasonably I believe that creating a comfortable home expect long-term inflation in New Zealand of environment is essential to creating a happy family approximately 2 per cent per annum. Therefore, life, but we need to be careful not to fall into the let us assume that rents in New Zealand trap of keeping up with the Joneses as property increase on average by 3 per cent per annum. is an asset class may not deliver the best returns. I have often wondered why New Zealanders In other words, an investor on-selling a property are so obsessed with moving and accumulating to a new investor (in a rising property market) rental properties when there are so many other is simply selling their property at a lower opportunities to create wealth through a globally expected return than they purchased it for. If you diversified investment portfolio. extrapolate that trend out, you realise this can’t go on forever. Eventually, there’s going to be an * Laetitia Peterson is a personal wealth adviser and is investor offered such a low expected return that married to competition barrister, Andrew Peterson. She has worked with companies such as Goldman Sachs they simply refuse to purchase the property. At and boutique funds management firm Liontamer, that point, the price must fall until the rental yield which she co-founded with Janine Starks. She is now returns to an attractive level. the CEO and founder of The Private Office, helping successful lawyers achieve the financial goals The only alternative is that the rental yields important to them and their families. themselves would need to increase substantially
www.nzbar.org.nz 33 Digital Marketing by Lynn de Winnaar*
Like everything since There are an array of hard copy and digital legal the advent of the publications to consider when thinking about digital age, PR as an approaching them to publish your content. art has moved from Some are actively looking for contributors: its traditional form for example the New Zealand Law Journal into a pastiche of welcomes exclusive articles that comply with tradition, technology submission guidelines. Legal publishers love and innovation. receiving new book proposals. If you have an idea, take the time to submit a framework and Think back to if it is accepted as viable, you start the process how our parents of writing the book, working with an editor. consumed news. Being a published author may not be the most They relied on lucrative accolade, but it can take you a long traditional media like way in building or entrenching your reputation radio, newspapers and television, none of which as a subject matter expert. provided coverage 24/7. At the time, public relations practitioners were pitted against each Given the nature of legal work and the public other behind the scenes, competing for the interest that often accompanies it, barristers favour of journalists and editors in trying to are better placed than most other professions secure editorial coverage for clients. The lunch to be able to work with mainstream news media trade was booming and golf courses buzzing in to distribute their content and build their profile. the name of relationship building. This could be in the form of articles written targeting the general public’s interest, or opinion If someone was unhappy with service they pieces around proposed legislation, synopses on received, or a product wasn’t performing as court proceedings - the list goes on. Paramount expected, they complained to a friend. Social to success in using this strategy though is media has buried the contentious adage “there’s forging relationships with journalists and editors. no such thing as bad publicity” once and for all, Choose the publications you would like to because we have seen the digital era give a guy contribute to, understand their audience profile, in his lounge the power to fold a business. compile some ideas around articles and set up to meet with them to discuss how you could Fast forward to present day where the big offer value. The days of well-staffed newsrooms media players are still considered the cream and investigative journalism teams are over. of the crop but Google has opened up the Quality and unique content is coveted and you’d world to anyone who has something of value likely to get a positive outcome. to say. There is an opportunity for everyone with access to a computer to become known Many professionals wonder about the value in for their opinion, intellect, advice. Modern running a blog. It is a great way to establish day PR is the ability to shape a message yourself as a thought leader, as all your content for the audience you are targeting so that it is easily accessible online, and you can build accomplishes your marketing goals. your library of work over time. There are a few techniques you can apply to help it rank For example, if your goal is to become a thought better in Google search results. Think about leader in a particular area of law, work on the query your target audience might type contributing content – to industry publishers, into the Google search bar if they were trying on your own blog, on social media, to your to source an article exactly like the one you clients, even to mass media newsrooms (if you intend to write. Make a list of the variations and are in the enviable position to provide unique incorporate these keywords into your copy. The and interesting information of public interest). Google algorithm applies synonyms, so there Contributing to industry publishers is likely to is no need to call the same thing ten names to convert to the quickest results. cover all bases. The Google keyword tool is a
34 www.nzbar.org.nz on the most). This data will give you a good indication if the effort is worth the cut through, and which ‘type’ of content is of most interest to your audience. If you are still using Microsoft Outlook to send out newsletters, try Mailchimp’s email marketing platform, which has drag and drop design functionality, and the ability to manage your customer lists and run those insightful analytics reports. There is a free version to try.
If a content driven free resource that uses analytics to recommend strategy so far sounds keywords and is well worth learning to use way too time consuming, remember that content (YouTube has many tutorials). is not limited to the written word. Webinars, vlogs, vodcasts, podcasts, TV and radio interviews, Technical tactics should also be applied to and speaking spots at events can all be homed maximise high search results. Incorporate a on your blog and social channels. Other types strong keyword into the URL when you name it; of content include case studies, photos, eBooks, add ‘share’ functionality to blog articles so that slide shares, testimonials, templates, whitepapers, readers can share off the page; consider adding a infographics and press releases, even tweets and comments section. Lastly, the code behind your social posts – many things that you will create blog can be enhanced with keywords to increase as a matter of course in your day, but which can the relevancy of your webpage in Google's ‘eyes’. provide fantastic promotion for you if made freely Incorporate keywords into title tags, header tags available for consumption and sharing. and metatags, and use alt text. If this all sounds like jargon, ask your website administrator to do In the modern world, content marketing leads the research and set it up for you. as the best strategy to achieve marketing goals. Compile a media contact list to proactively If you would like to use your blog for lead submit content or put a little spend behind a generation too, ask visitors to submit their social media campaign and watch the momentum details in a form to download content. If the build. Once upon a time media was in control of form includes an optional checkbox to subscribe the news. Now you have direct access to your to updates, this will help you to build your target audience. Experiment with content type, newsletter database. volume and format and you will figure out what delivers reach and engagement. No longer does Newsletters can be time consuming to compile ‘going viral’ send people scattering - it is the and one might wonder if it is worth the effort. greatest accolade. If you are a little behind the The answer lies in the analytics. Considering times, what is stopping you from creating your that average business to business email first piece of shared content? open rates are around 30%, with a lower click through rate to links within the newsletter, * Lynn de Winnaar is a Marketing Consultant who what you initially may consider a worthwhile has previously worked in publishing including as audience could shrink substantially. Email the Segment and Solutions Marketing Manager at analytics will tell exact numbers on bounce rate LexisNexis New Zealand. She can be contacted at (delivery failure), open rate, click through rate, [email protected]. For more information see unsubscribes, and even provide a heatmap https://www.linkedin.com/in/lynn-de-winnaar- (to see which parts of your email were clicked ba421267/
www.nzbar.org.nz 35 Dragon Discover how speech recognition can help your firm focus on billable work, while ultimately providing better service to your clients
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36 www.nzbar.org.nz Dragon Naturally Speaking – a Review by Jacqui Thompson*
The NZBA has • make your emails streamlined, including negotiated a 15% inserting signatures, attachments and discount on the sending on command. You can also add price of Nuance’s commands that tell it to send an email to DragonDictate a specific person such as “send email to Naturally Speaking Fred Dagg.” for users of the legal • review your existing documents and version. The New emails so that it can learn more about Zealand supplier, how you write; Sound Business • learn new vocabulary; Systems Ltd, • create custom commands to perform allowed the NZBA common actions. to trial the program for the purposes of What about other speech recognition programs? reviewing it for At Some of you may have used the Apple speech the Bar. recognition program or the Windows versions. What is DragonDictate? Google Docs also has a reasonable speech if you are unfamiliar with it, DragonDictate is a recognition program. However, DragonDictate speech recognition system. Nuance claims that it Legal takes this to the next level. Its vocabulary delivers up to 99% speech recognition accuracy. includes a range of legal commands and phrases Compared to earlier versions, very little training in that mean that you do not have to do worry about the use of the product is required. the technical language not being recognised. It contains the names of New Zealand legislation, Dragon establishes a profile of your voice when and allows you to dictate sections and the program is set up. It learns your intonation subsections with ease. and distinguishing characteristics and gets a feel for your accent and the peculiarities of your Of course, there are some differences between speech. The more you use it, the more it learns using Dragon for PC and using Dragon for Mac about you and improves your profile and in turn and we recommend that if you are Mac user, its accuracy. If you use words that don’t appear you discuss these with the supplier before going in its vocabulary, you can add these and train ahead. Dragon to recognise them. What do you get for your licence fee? Your licence entitles you to load the program on If you have used it in the past, as in some years four different PCs. This should be more than ago, forget what you knew of Dragon. There is enough for most practitioners! It is not available for very little comparison with the earlier versions. iPad or Android. There is however a plug-in that The latest version of this product is powerful, you can use which allows you to dictate material effective and very satisfying to use. If you are on your (for example) iPad and then send it to your used to dictating documents, you are able to see PC so that you can later use Dragon to edit it. your results instantly without waiting for someone else to type them. If you type your material You are also entitled to 2 hours of free training in yourself, you will experience a considerable rise the use of the product. This is usually broken up in productivity because no matter how quickly into an initial one-hour session, which gets you you think you type, Dragon can do better. started on using the product and understanding its toolbar, followed by another hour of training going What does DragonDictate do? through more advanced features. This training can DragonDictate is integrated with Windows and be delivered online anywhere in New Zealand. Microsoft Office. Some of the things that Dragon can do are: How easy is it to use? • open your programs and apps. Simply The hardest part about using DragonDictate ask it to (for example) open Microsoft Excel is remembering to actually use it. If you are a and it will promptly launch the program. heavy keyboard user, your instinct is immediately
www.nzbar.org.nz 37 to start typing rather than to start dictating. around, particularly if you have a high degree of You have to train yourself to start your day by customisation set up in your programs. These launching the program and putting your headset are usually solved very easily. on. The very first email that you send should be one that you have dictated, rather than typed. Dragon doesn’t cope very well with Māori words, which is very frustrating. You may need to train Another issue, which can have its amusing Dragon on some words more than once. For side (depending on what is said), is that if you example, it insisted on inserting Martina for take a phone call without muting your headset Morena, despite extensive training. Consistent or telling Dragon to go to sleep, you can find use and training provides part of the answer your conversation recorded in a very one-sided here. way in the middle of your document. One soon What specs do you need on your PC? learns to pause Dragon before answering the The requirements are: phone! • Hard Disk Space: 8GB What do you need to watch out for? • Operating System: Windows 7, 8.1, 10 (32- In a way, Dragon’s ease-of-use is its biggest and 64-bit); Windows Server 2008 R2 & downside. It is only too easy to leap into dictating 2012 R2 material, without thinking of the structure of what • Recommended CPU: Intel dual core or you are writing. If you don’t already do so, you equivalent AMD processor. Faster may find it useful to go back to your high school processors yield faster performance. days of drafting essays and begin with a quickly • Recommended Ram: Minimum 4GB sketched outline of what it is that you want to The reality is that if your present computer include in your document and in what order. does not meet these requirements, you may Secondly like all new computer programs, you not enjoy Dragon Legal, and may find that need to learn how to use it to its fullest extent. many new programs slow down your machine’s It is relatively easy to set up and get going with performance anyway. It may be time to think it, but the more you learn about it, the more about an upgrade. you can use it effectively. The temptation is to Overall view stay with the basics and not go any further, but It can’t be stressed enough that this is a product Dragon can do much more than the basics. that you need to consistently use and keep learning about. For example, there are a variety Finally, there is absolutely no substitute for of editing commands that can be used, so don't proofreading documents. DragonDictate does fall into old habits and grab your mouse. You its job so well that sometimes you feel as if it need to overcome this mindset and try to make has perfectly recorded what you have said. In most of the product. fact, you don’t really need to watch the screen while you dictate and may find yourself staring Having said that, you have to work in a way out of the window or focusing on the ceiling as that suits your thought processes. When I am you think about what you are saying. However, proofreading the document, I like to run my depending on the clarity of your pronunciation, mouse along the line and do the corrections sometimes Dragon will mix up words with partly using the keyboard and partly using unexpected consequences. For example, in Dragon. It depends on whether they are small an email the words “NZBA Treasurer” became typo corrections or major rewrites. “NZBA Treasure”. Most awkward. After trialling Dragon at a particularly busy What does it not do well? time, the thought of giving up on using it was Formatting is not Dragon’s forte. Although there highly distressing. It enabled me to cope with are some formatting commands, numbers or a greatly increased workload without having bulleted lists can be difficult, as can indents. to work too many extra hours. It did require However, you can improve this by building a set persistence, but it is now an essential tool in of commands to do what you want. my work day. While I could cope without it, because I’m a very fast typist, I don’t want to You also must be flexible between the cope without it. An email to the NZBA Treasure applications. For the most part DragonDictate (oops – Treasurer and Newsletter Editor) solved works very well within the Microsoft Office that issue. It has immeasurably improved my suite. However, every now and then there working day. are issues that you need to think your way
38 www.nzbar.org.nz To the Ends of the Earth – Naturally by Martin Cahnbley, Planet Wine*
The NZBA is pleased to announce a new member Sydney, one of the most acclaimed (and bio- benefit offer through Planet Wine. Planet Wine dynamic) wineries from Western Australia was will offer a 20% discount on all purchases made asked what gave them the right to be at that via its website. It’s founder and CEO, Martin festival. How much more natural can a winery Cahnbley, travels the world in search of the wines be than bio-dynamic? that make an impact on us and are different from the usual fare. Martin has agreed to write about But, let us step back 8000 years. This is when his travels and discoveries for At the Bar. In this Georgia (Eastern Europe) started producing issue he is in Georgia and Armenia. wine, naturally. An invitation from a school friend to join him in his hunt for his father’s ancestral The ‘natural’ wine movement and its emergence home in the Ukraine had me poring over online and fashionability have piqued my interest for maps of the Black Sea and beyond. Any excuse some time now. The fact and my tendrils are out, that this term has no specific feeling for wine connections in definition or certification within Georgia and Armenia. the wine industry is a topic for a long discussion over many In August 2017 I landed glasses of wine. in Yerevan, the capital of Armenia. Despite a midnight I have been working in the arrival, the suited driver of wine industry for over 30 the Ararat Cognac Factory years and am somewhat guided me to the large black cynical about the many still- Mercedes and my AirBnB fermenting ‘Pet-Nat’ wines, accommodation. After a short fancy labels, high prices and meeting with the family on often unimpressive liquids the following day, we drove to concocted by bearded hipster- the ‘Factory’. Number 2 son types wearing too-tight driving, father (no English) trousers with too-tight jackets. in the passenger seat and At the recent Rootstock number 1 son, Grigor, next to Natural Wine Festival in me in the rear, pushing for
www.nzbar.org.nz 39 sales already, in excellent English. The father over the past 5 plus years, secure in the had been the manager of the factory when the proof that Georgia has been producing wine USSR fell in 1991 and took over ownership at continuously for the past 8000 years, longer that time. No questions asked (by me). than any other country.
While the facilities, with views of Mount Ararat I undertook my trip from Yerevan to Tbilisi in a in Turkey, were certainly out-dated, their very marshrutka, a small bus certified to carry 12-16 valuable assets are the multitude of barrels of passengers. Tbilisi is a hilly capital much more liquid they have in stock. Armenian ‘Cognac’ is focused on tourism than Yerevan. Every fourth highly regarded around the world and especially store is a wine store or a wine bar or restaurant. in Russia. The tasting was held in a large wood- Wine is the engine of this country. After a night paneled room with high ceilings and naïve of walking about and ingesting a large steak paintings of the owner leading worker brothers with some local red wine, I tumbled into my to shore. ‘Rustic’ would be a good descriptor, as AirBnB bed. were the chocolates that were offered. In the morning I was picked up by my translator, The various spirits and wines (including Salomé, who had only recently started working pomegranate and blackcurrant) were interesting. for the Georgian wine marketing body, and a “How would these be received in the New driver. This was the beginning of a 4.5 day, 22 Zealand market?” is the question I keep asking winery whirlwind tour of Georgian wineries. myself when searching for extensions to the Planet Wine portfolio. As On day one we visited two the sun set, with Mt. Ararat Monasteries that produce in the distance, with the gift wine. I was introduced to the of a bottle of 50-year old Qvevri, the traditional Georgian Ararat Cognac in my hand, I fermentation and storage resolved to import some of their vessel. Essentially, these are products – good products, and clay amphora, lined with bee’s sincere and good people. wax, which are buried in the ground. In residential areas, That evening, back in the where Europeans would have capital Yerevan, I went in cellars, Georgians may have search of a wine bar called 4-6 Qvevri buried in the ground Wine Republic. An Armenian in the basement of their homes. winery, Zorah, had suggested This saves space and also aids that I taste their wines there. in controlling the temperature of Yerevan was founded in the the wine. 8th century BC and became the capital of Armenia in 1918. Day one ended with visits to Structures are mainly European the residential wineries of three 18th and 19th century in style brothers, each trying to outdo but the 21st century is making the other. I remember much its mark with modern buildings, shops, bars and food, many toasts and some singing, but no restaurants that would not be out of place in dancing. Very friendly and hospitable people, New York or Florence. Wine Republic turned out the Georgians! to be a Thai restaurant with an excellent wine bar and cellar. Its young staff were friendly and The rest of the days in Georgia were a blur competent in English and led me through an of wineries, Qvevri and vineyards. Wineries interesting array of Armenian wines, which used ranged from small to foreign-owned and to large indigenous and ‘Georgian’ grape varieties: areni corporates. Most of the wineries work with noir, saperavi, kisi etc autochthonous varieties like mtsvane, rkatsiteli, saperavi, kisi, chinuri and 500 plus others. Most Armenia’s wine industry has been over- of those that we visited ferment and age their shadowed by its northern neighbour, Georgia. wines in Qvevri but we also encountered a few While similar varieties and processes are used, larger wineries that have invested in modern the Georgian industry has taken the opportunity winemaking equipment like stainless steel tanks to promote itself extensively and consistently and oak barrels.
40 www.nzbar.org.nz This brings us full circle. Georgian wines are, to a large extent, made in a natural, minimal- interventionist manner. That means using natural yeasts (occurring in the vineyard), not using chemical sprays in the vineyard and not
adding SO2 to the wines.
The proof of the pudding is in the eating. While proponents of the ‘natural wine’ movement may blindly jump at the chance of tasting Georgian wines and expounding its virtues, I am interested in a broader assessment from wine connoisseurs who have honed their senses on more traditionally-made wines. My experience in Georgia proved to me that many vintners producing ‘natural’ wines in the New World still have a lot to learn before their ‘natural’ wines meet my standards.
Vintners around the world are usually driven by On the other hand, I have had occasion to meet a dream, by a passion. The winemakers I like ‘natural’ winemakers around the world whose to work with are these, the ones who love what wines I really enjoyed. I am already representing they do and who will give up much to achieve the Testalonga wines from South Africa and that dream. am currently in discussions with Dave Geyer in the Barossa Valley and a Spanish ‘natural’ wine An example of this is the winery Pheasant’s producer. Tears, named after a Georgian fable in which only the best wines will make a Pheasant cry. If you would like more information, have The story of its winemaker, John Wurdeman, is comments and/or suggestions, please feel free worth telling. He grew up with hippy parents to get in touch with me at martinc@planetwine. in California, studied art/painting, and then co.nz. I look forward to being part of an active decided to study painting further in Moscow. wine community at the bar. John visited Georgia in 1996, where he met his wife, Gela, who was from a winemaking family. * For more information about Planet Wine, refer to They married and John stayed. www.planetwine.co.nz. If you want to take advantage of the discount for NZBA members, please check the member benefits section of our website. His wines are the most well-known in Georgia, but also outside of that country, possibly because of his western roots and connections. The wines are all made in Qvevri. The skin contact varies with each grape variety. The skin and stalks floating on top of the wine are called ChaCha, also the name for Georgian grappa.
John was kind enough to devote an entire afternoon and evening to our small team and I am pleased to say that five of his wines will be arriving in New Zealand on 19 February and will be available via the Planet Wine website.
Of the 22 wineries I visited, having tasted around 150 wines, I will eventually work with 4-6. Some focus on only one variety, while others produce more affordable wines with Georgian varieties that will be required to introduce them to a wider novice audience in New Zealand.
www.nzbar.org.nz 41 Petrol Heads’ Corner by David O’Neill*
RANGE ROVER VELAR and back, with a trip out to Cambridge and back (from Hamilton), ended with having to put $30 The local Range Rover petrol in it just to get it back to the dealer. This distributor handed me the is a total of around about 400kms. Now, I wasn’t key (if you can call it that) hoofing it along at an incredible pace (honest) to the latest edition to but I wasn’t driving sedately either. the Range Rover range of vehicles. It is the Velar. I think I would be prepared to sacrifice the power for the diesel and get there without It is mid-way between the having to purchase large chunks of Caltex or BP. Range Rover Vogue/Sport and the Range Rover Evoque. To put it in perspective, I would say that Range Rover hail this vehicle as their next its competitors are the Audi Q5 and the Porsche generation car and it’s very striking. It retains Macan. It is priced in that market and like all the usual aggressive snout but, to my mind, these vehicles, it comes with all the singing and it looks more sinister than the RR. I liked it. I dancing toys. thought it was a very good-looking vehicle.
Mine was a smart dark charcoal grey. I don’t Range Rover has added a feature which makes know what the people at Range Rover call it it look ultra-sleek – door handles that recess but that’s what it looked like. It was the press into the body when you lock it. I did have drive vehicle and, strangely enough, had a white visions of a child’s fingers being lopped off when leather interior. Hardly the interior you would an unsuspecting parent walked off and locked expect for a car that’s going to be sat in by 20 the car without looking, but the sales manager or 30 different people up and down the country at Duncan & Ebbett put his body on the line who really wouldn’t give a toss whether they and stuffed his fingers under the door handle had dirty clothes on or not (or so I assume). and locked it at the same time. The door handle does spring back out as soon as it encounters The car is different from the other Range Rovers resistance. that I have driven in that it had very high spec electronics including a huge touch screen. It was The car had plenty of room. We were able to presented to me in beautiful condition, but after put golf clubs in quite easily; it fitted two sets a week of driving it, the touch screen looked and two trundlers with ease. There is a tonne like a grubby toddler’s dinner place setting at the table. There were finger marks everywhere. Touch screen is fantastic, and it looks smart, but it doesn’t look too flash after a week of heavy use.
I had the top of the range, high-spec Velar which had the 3L V6 petrol super-charged motor in it. I understood it was the same motor as the Jaguar F Pace. For a heavy SUV, it is incredibly quick. However, the speed and weight come at a price. My trip to my usual destination of the beach
42 www.nzbar.org.nz of room in the back seat for guests (note I At $185,900 base price, it is not cheap and it said guests – it doesn’t feel like you convey is one of those vehicles you would need to passengers around the place – too “tally ho” compare to others in the same class. The Velar for that); however, the fifth person in the middle is totally different from the Audi Q5, which might find it a little bit uncomfortable because is totally different from the Porsche Macan. they’re sitting on a ridge. Comparing them as diesels, makes for an unfair comparison because the Macan and the SQ5 Like most cars I review, you have to re-think sport twin turbo diesels whereas the Velar has all the control settings and positions. The a single turbo diesel. It still develops 221 kw and same applied here. Once you get the hang of 700 Nm of torque. It sips diesel and claimed using the touch screen, it is remarkably easy 6.4 litres per 100 kms. However, a sprint time of to navigate around the systems. There is one 6.5 seconds from 0-100km/h makes it a relative drawback to a touch screen; the accidental tap. sloth in comparison to its competitors.
We were toddling across the Hauraki Plains and The super-charged petrol version puts out I was talking to somebody on the phone (hands- 280 kw of power and 450 nm of torque but, as free of course) and, to emphasise a point, I claimed, (and I frankly doubt it) 9.4 litres/100 inadvertently tapped my finger against the kms and 5.7 seconds 0-100 km - you can see the touch screen, which turned the fan on full blast trade-off between power and economy. mode, rendering conversation pointless. I had to terminate the conversation and we spent the In summary, it looks cool, drives (sort of) nicely next 10 kms trying to work out how to turn the and with great gusto, but is thirsty into the fan off. It was blowing a gale in the car and you bargain and doesn’t corner as well as the other couldn’t hear yourself think. Once I worked out SUV’s in the same price range. what I was doing with the fan buttons, the rest was child’s play, as they say. * David O’Neill is a Hamilton barrister, and a member of the NZBA Council. His Petrol Head's Corner column Putting your foot down is rewarding (apart from is the environmental battlefield of the At the Bar the petrol usage) and the car responds quickly editorial team, and only his position as Editor-in-Chief allows him to get away with his fossil-fuelled passion. and speedily, going past the speed limit with Well, that and the fact that the Executive Director ease. agrees with him, so it is two to one [Which is as it should be – Ed-in-C]. One of the features about the vehicle that I didn’t like was the suspension. To my way of thinking, it wallowed when it went over a bump or around a corner. There was no sharp bang as you hit a bump but there was no tautness in the cornering ability either. In discussing this with the sales manager at Duncan & Ebbett, he confirmed that this was what Range Rover were trying to do, namely sacrifice handling capabilities for comfort.
I am used to a much firmer suspension and didn’t like it much. But, as they say, it’s horses for courses. It was air suspension, so it could be firmed up or allowed to let you waft along in a cocoon of luxury.
The car turns heads because it is well proportioned and stylish. It is not as big as the Range Rover Vogue and people look twice, wondering what it is actually is. It looks like the Vogue but is different. I would describe it as curvier and slightly more space age looking than the others.
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